Anonymous v. Miller

Opinion

THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Anonymous,

Petitioner, 24-CV-01360 (RA) (RFT) -against- OPINION AND ORDER

Mark Miller, Respondent.

ROBYN F. TARNOFSKY, United States Magistrate Judge: On February 22, 2024, Petitioner, filed this petition under 28 U.S.C. § 2254 seeking a writ of habeas corpus. (ECF 1, Petition for Writ of Habeas Corpus.) On May 22, 2024, the Court temporarily restricted the public’s access to certain filings in this case and set deadlines for Petitioner to file a formal application to seal the filings in this case and for Petitioner to proceed anonymously. (See ECF 16, Order.) Pending before the Court is Petitioner’s “Letter Motion to Seal,” which requests that the Petitioner be permitted to proceed anonymously and that all filings in the case be sealed. (See ECF 20, Letter Motion To Proceed Anonymously.) After carefully considering Petitioner’s request, for the reasons set forth below, Petitioner’s motion to proceed anonymously is GRANTED, in that Petitioner may proceed anonymously to the public; and Petitioner’s motion to seal the filings in this case is GRANTED IN PART and DENIED IN PART, in that Petitioner may make filings in redacted form, redacting Petitioner’s name and identifying information, with the unredacted versions of the filings remaining under seal and the redacted versions being available to the public. FACTUAL BACKGROUND Petitioner was arrested on November 13, 2009, for a burglary/assault in the Bronx, New York. (See ECF 1, Petition at 1.) On March 17, 2011, Petitioner entered into a plea agreement with the Bronx County District Attorney’s Office and subsequently entered a guilty plea to counts 1 and 32 of the indictment; the Court allocuted as to the promised sentence of 11 years

imprisonment with 15 years post-release supervision. (See id.) It is undisputed that under the terms of the plea agreement, Petitioner was required to provide information about the criminal activity of his co-defendants, which he did in a series of proffers. (See id. at 8-11.) Approximately 90 days after entering the guilty plea, Petitioner fired his attorney; through various newly appointed counsel he subsequently sought to vacate the plea. (See id. at 11-22.)

The trial court determined that Petitioner violated the cooperation agreement by seeking to withdraw the guilty plea and Petitioner was sentenced to concurrent terms of 25 years to Life and 25 years’ imprisonment with 20 years of post-release supervision. (See id. at 25.) Petitioner appealed the conviction, primarily arguing the unenforceability of the plea agreement. (See id. at 1-2.) Petitioner also filed a motion in state court to proceed anonymously and on April 21, 2016 the Appellate Division, First Department, granted the motion, sealing the

record on appeal and all future filings. (See ECF 1-1, A-002.) After reviewing the brief and the record, the First Department denied Petitioner’s appeal on February 16, 2021, (see ECF 1, Petition at 2) and leave to appeal to the New York Court of Appeals was later denied (see id. at 3). Petitioner filed this habeas petition on February 22, 2024 and seeks to proceed anonymously. (See id., Cover Page.) On May 22, 2024, the Court temporarily restricted the

public’s access to certain filings in this case and set deadlines for Petitioner to file a formal application to seal the filings in this case and for Petitioner to proceed anonymously. (See ECF 16, Order.) On June 11, 2024, Petitioner filed a letter motion to proceed anonymously (ECF 20, Letter Motion to Proceed Anonymously) and Respondent filed a response taking no position on this issue (ECF 21, Letter).

LEGAL STANDARDS I. Proceeding Anonymously Federal Rule of Civil Procedure 10(a) requires that “[t]he �tle of [a] complaint must name all the par�es[.]” There is an important public interest in knowing who makes use of the

judicial system. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (explaining that “iden�fying the par�es to the proceeding is an important dimension of publicness”). Courts in the Second Circuit apply a non-exhaus�ve ten-factor test to determine whether a party may li�gate a case anonymously or pseudonymously. See id. These factors are whether: (1) the li�ga�on involves maters that are of a “highly sensi�ve and personal nature”; (2) “iden�fica�on poses a risk of retaliatory physical or mental harm to the . . . party [seeking to

proceed anonymously] or even more cri�cally, to innocent non-par�es”; (3) “iden�fica�on presents other harms and the likely severity of those harms”; (4) “the plain�ff is par�cularly vulnerable to the possible harms of disclosure . . . par�cularly because of [the plain�ff’s] age; (5) “the suit is challenging the ac�ons of the government” rather than private par�es; (6) the “defendant is prejudiced by allowing the plain�ff to press his claims anonymously”; (7) the party’s “iden�ty has thus far been kept confiden�al”; (8) “the public’s interest in the li�ga�on is

furthered by requiring the plain�ff to disclose his iden�ty”; (9) “because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the li�gants’ iden��es”; and (10) there are alterna�ve mechanisms for protec�ng the confiden�ality of the par�es. Id. at 190. In its analysis, the Court need only consider applicable factors. See id. at 191 n.4 (explaining that a court “is not required to list each of the factors or use any par�cular formula�on as long as it is clear that the court balanced the interests at stake

in reaching its conclusion”). II. Sealing Court Records There is a long-established “general presump�on in favor of public access to judicial documents.” Collado v. City of N.Y., 193 F. Supp. 3d 286, 288 (S.D.N.Y. 2016) (ci�ng Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). The presump�on of access is “based

on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administra�on of jus�ce.” U.S. v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). Applica�ons to seal documents must therefore be “carefully and skep�cally review[ed] . . . to insure that there really is an extraordinary circumstance or compelling need” to seal the documents from public inspec�on. In re Orion Pictures Corporation,21 F.3d 24, 27 (2d Cir. 1994). In evalua�ng an applica�on to file documents under seal, a Court must engage in a

three-part analysis. See Lugosch435 F.3d at 119-20. First, the Court must determine whether the documents at issue are “judicial documents,” as to which both a common law and a cons�tu�onal presump�on of public access applies. Id. at 119. “In order to be designated a judicial document, ‘the item filed must be relevant to the performance of the judicial func�on and useful in the judicial process.’” Id. (quo�ng U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)).

A document is “‘relevant to the performance of the judicial func�on’ if it would reasonably have the tendency to influence a district court’s ruling on a mo�on . . . .” In re Arida, LLC, No. 19-MC- 522 (PKC), 2020 WL 8513844, at *1 (S.D.N.Y. Dec. 23, 2020) (quo�ng Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019)). When the documents a party seeks to seal are “judicial documents,” the Court must

then determine how much weight to assign to the presump�on of access. See Lugosch, 435 F.3d at 119. As the Second Circuit Court of Appeals has explained: [T]he weight to be given the presump�on of access must be governed by the role of the material at issue in the exercise of Ar�cle III judicial power and the resultant value of such informa�on to those monitoring the federal courts. Generally, the informa�on will fall somewhere on a con�nuum from maters that directly affect an adjudica�on to maters that come within a court's purview solely to insure their irrelevance. Id. (quo�ng Amodeo, 71 F.3d at 1049). When a party seeks to seal a pleading, such as a complaint, which is a “core” judicial document, Morgan Art Found. Ltd. v. McKenzie, No. 18-CV- 4438 (AT) (BCM), 2020 WL 1130699, at *2 (S.D.N.Y. Mar. 6, 2020), the weight of the presump�on is “heavy.” Under Seal v. Under Seal, 273 F. Supp. 3d 460, 470 (S.D.N.Y. 2017). “Documents filed in connec�on with . . . non-disposi�ve mo�ons . . . are subject to a ‘s�ll substan�al’ presump�on of public access.” Arida, 2020 WL 8513844, at *1 (quo�ng Brown, 929 F.3d at 53). Finally, the Court must determine whether the parties seeking to keep the judicial document under seal have met their burden of demonstrating there are “countervailing factors,” “competing considerations,” or “higher values” sufficient to overcome the presumption of access. Lugosch, 435 F.3d at 120, 124. Neither “conclusory assertion[s]” of harm nor “[b]road and general findings by the trial court” will suffice. In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987). Rather, a judicial document may be sealed only if “specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (quoting N.Y. Times, 828 F.2d at 116). ANALYSIS

I. Petitioner’s Request that Petitioner Be Permitted To Proceed Anonymously The second and third Sealed Plaintiff factors consider the harm that a plain�ff may face from disclosing his or her iden�ty. “If disclosure creates risk of harm from third par�es, disclosure is disfavored.” Doe v. Townes, No. 19-CV-8034 (ALC) (OTW), 2020 WL 2395159, at*4 (S.D.N.Y. May 12, 2020). The risks must be more than specula�ve claims of physical or mental

harms. See Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 406 (S.D.N.Y. 2019) (ci�ng Michael v. Bloomberg L.P., No. 14-2657, 2015 WL 585592 (S.D.N.Y. Feb. 11, 2015)). Courts have permited a pe��oner seeking a writ of habeas corpus to proceed anonymously where the proceedings at issue detailed the pe��oner’s decision to cooperate with the government, and the pe��oner’s habeas pe��on atacked the plea agreement in which the pe��oner agreed to cooperate with the government. See U.S.s v. Doe, 655 F.2d 920, 922 n. 1, 923-24 (9th Cir. 1981).1

Here, Pe��oner points to harm that goes beyond mere specula�ve claims. Plain�ff claims “informa�on relayed during . . . [proffer] sessions [involving federal and state prosecutors] concerned mul�ple crimes – including homicides – commited by pe��oner- defendant’s co-defendant, who was released from DOCCS custody on June 2023,” and

1 “In Sealed Plaintiff, the Second Circuit expressly endorsed the Ninth Circuit’s formulation regarding when a party may proceed anonymously. The court cited the Ninth Circuit decision Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), which in turn relied on the decision in United States v. Doe, 655 F.2d 920, and in particular its holding that nondisclosure of a party’s identify is permissible only in the unusual case.” Doe v. Greiner, 662 F.Supp.2d 355, 362 n.7 (S.D.N.Y. 2009). Pe��oner’s “safety would be jeopardized” if such informa�on were made more accessible. (See ECF 20, Leter Mo�on To Proceed Anonymously.) The underlying case filings, which are part of the federal record and describe the nature of Pe��oner’s proffer statements that led to the

convic�on of certain co-defendants, �p the second and third Sealed Plaintiff factors in Pe��oner’s favor. See Greiner, 662 F. Supp. 2d at 361 (finding that the pe��oner had failed to show that there was a risk of harm because no document filed in federal court described the nature of his work as an informant and there was no indica�on that anyone was ever arrested as a result of his coopera�on). The sixth Sealed Plaintiff factor supports gran�ng Pe��oner’s request to proceed

anonymously. There is no dispute that Respondent will not be prejudiced if Pe��oner proceeds anonymously because Respondent has known Pe��oner’s iden�ty since the beginning of this ac�on and takes no posi�on on the applica�on. (See ECF 21, Leter.) Based on the foregoing analysis, Petitioner should be permitted to proceed anonymously under Sealed Plaintiff. See Doe v. Barr, 479 F. Supp. 3d 20, 26 (S.D.N.Y. 2020)

(granting Petitioner’s request to proceed anonymously where four of the ten factors weighed in favor of Petitioner). II. Petitioner’s Request To Seal the Court Filings in this Case Pe��oner also asks this Court to seal this case in its en�rety, which necessarily would entail sealing judicial documents. See Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

814 F.3d 132, 139 (2d Cir. 2016) (holding that pleadings are judicial documents); In re Arida, LLC, 2020 WL 8513844, at *1 (explaining that filings containing the arguments that a court is being asked to consider in exercising its decision-making authority are judicial documents because such filings “have a reasonable tendency to influence” a court’s decision on a mo�on). Because Pe��oner seeks to seal judicial documents, the Court must determine the

weight of the presump�on in favor of public access. See Lugosch, 435 F.3d at 119. Pe��oner asks to seal the en�re case, which includes “core” judicial documents, and so the presump�on of public access is heavy. See Under Seal, 273 F. Supp. 3d at 470. While Pe��oner has raised countervailing considera�ons in support of the request to seal – the physical harm Pe��oner would suffer from disclosure – Pe��oner has not

demonstrated that “closure is essen�al to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (ci�ng In re N.Y. Times Co., 828 F.2d at 116). Pe��oner has not made a proper showing that sealing the en�re case is the only appropriate mechanism for protec�ng the confiden�ality of Pe��oner. Here, Pe��oner’s valid interest in avoiding physical danger that could poten�ally result from disclosure of Pe��oner’s iden�ty may be addressed by the more narrowly tailored remedy of allowing Pe��oner’s name and

iden�fying informa�on to be redacted from the filings in this case, with the redacted versions of the documents being available to the public and the unredacted versions being sealed. CONCLUSION After carefully considering Petitioner’s application, for the reasons set forth above, Petitioner’s motion to proceed anonymously is GRANTED; and Petitioner’s motion to seal the

filings in this case is GRANTED to the extent that Petitioner may make filings in redacted form, redacting Petitioner’s name and identifying information, as well as the name and identifying information of certain relevant co-defendants, with the unredacted versions of the filings remaining under seal and the redacted versions being accessible to the public. Petitioner is ORDERED to file on the docket by June 30, 2024 redacted versions of the documents appearing at ECF 1-1, 1-2, 1-17, 7-1, 17-1 and 18, redacting Petitioner’s name and other personal identifying information as well as the names of any relevant co-defendants. The Clerk of Court is respectfully directed to terminate ECF 20. DATED: June 17, 2024 New York, New York SO ORDERED. Wow ROBYN F. TARNOFSKY United States Magistrate Judge