1 2
4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-JLT
12 Petitioner, DEATH PENALTY CASE
13 v. ORDER REGARDING PETITIONER’S APPLICATION TO FILE DOCUMENTS 14 RON BROOMFIELD, Warden of California UNDER SEAL State Prison at San Quentin, 15 Respondent.1 16
17 18 I. INTRODUCTION 19 On July 28, 2023, Petitioner, through counsel Kresta Daly and Saor Stetler, filed on the 20 public docket a Notice of Filing Under Seal an Application to Seal privileged materials. (Doc. 21 69.) The Notice is associated with the Court’s July 13, 2023 order that tentatively denied 22 Petitioner’s May 15, 2023 Motion for Equitable Tolling and provided his counsel until July 28, 23 2023 to submit to ex parte and in camera to the Court for sealing any supplemental privileged 24 material supporting the motion. (Doc. 68.) 25 Petitioner has timely submitted to the Court supplemental privileged materials along 26 with an Ex Parte Application to Seal and Proposed Order, as required by Eastern District of
27 1 Pursuant to the Federal Rules of Civil Procedure, Rule 25(d), Ron Broomfield, Warden of San Quentin State Prison, shall be substituted as Respondent in place of his predecessor wardens. 1 California Local Rule (“Local Rule”) 141.2 Petitioner states the materials to be sealed are 2 privileged and so have not been provided to Respondent. (Doc. 69 at 1-2.) 3 Respondent has not opposed Petitioner’s sealing request, and the time for doing so has 4 expired. Local Rule 141(c). Petitioner’s sealing request is therefore deemed unopposed. 5 II. BACKGROUND 6 On February 26, 1998, Petitioner was convicted of two first-degree murders and first- 7 degree residential robbery. The special circumstances of multiple-murder and robbery-murder 8 were found true, and he was sentenced to death. People v. Richard Allen McWhorter, Kern 9 County Superior Court Case No. 65352A. 10 The California Supreme Court affirmed Petitioner’s judgment of conviction and 11 sentence on automatic appeal. People v. Richard Allen McWhorter, 47 Cal. 4th 318, rehearing 12 denied October 14, 2009, as modified October 14, 2009. On October 4, 2010, the United 13 States Supreme Court denied certiorari. Richard Allen McWhorter v. California, 562 U.S. 844. 14 Thereafter, the California Supreme Court summarily denied Petitioner’s habeas corpus 15 petition. In re McWhorter, Cal. Case No. S180404. 16 On February 11, 2020, Petitioner began this federal habeas proceeding pursuant to 28 17 U.S.C. § 2254 (Docs. 1, 2) and the Court appointed counsel on March 31, 2020. (Doc. 9, citing 18 18 U.S.C. § 3599.) 19 On July 24, 2020, Respondent lodged the record.3 (Docs. 16-18.) Three months later, 20 the Court granted Petitioner’s motion to equitably toll the limitations deadline under 28 U.S.C. 21 § 2244 from January 22, 2021, to and including March 31, 2021, due to delay in the 22 appointment of federal habeas counsel. (Doc. 22.) 23 The Court granted further equitable tolling of the § 2244 deadline through January 30, 24 2023 in response to Petitioner’s second through fifth motions, on grounds extraordinary
25 2 Local Rule 141(b) directs a party seeking to seal documents to electronically file a “Notice of Request to Seal Documents” and to e-mail a “Request to Seal Documents,” proposed order, and all documents covered by the 26 request to the appropriate Judge or Magistrate Judge's proposed order e-mail box. All reference to pagination is to ECF system pagination unless stated otherwise. 27 3 Respondent augmented the lodged record on March 27, 2023. (Docs. 52, 52-1.) Respondent made a second 1 circumstances raised by the COVID-19 pandemic impeded investigation, development, and 2 presentation of his federal claims. (Docs. 28, 36, 42, 46.) 3 During the period of tolling, on October 22, 2021, Petitioner filed in this proceeding a 4 297-page (protective) petition pursuant to § 2254 stating 22 fully exhausted record-based 5 claims. (Doc. 34.) 6 On March 6, 2023, the Court denied without prejudice to renewal Petitioner’s sixth 7 motion for equitable tolling, which sought to prospectively toll the January 30, 2023 deadline 8 for filing his amended federal petition. (Doc. 50.) The Court found that Petitioner did not 9 make a sufficient showing that extraordinary circumstances raised by COVID-19, his impaired 10 mental and physical health, and his counsel’s need for additional Criminal Justice Act funding 11 entitled him to further equitable tolling. (Id.) 12 On May 15, 2023, Petitioner filed his federal amended habeas corpus petition pursuant 13 to § 2254 (Doc. 63), and concurrently renewed his previously denied request to further 14 equitably toll the limitations deadline pursuant to § 2244 from January 30, 2023 to filing of the 15 federal amended petition. (Doc. 64). 16 III. DISCUSSION 17 Petitioner supports the sealing request by observing that the contents of materials 18 proffered for sealing are privileged including under the work product and attorney-client 19 privileges. 20 Requests to seal documents in this district are governed by Local Rule 141, which 21 provides that documents may be sealed only upon written order of the Court after a specific 22 request to seal has been made. Local Rule 141(a). The request to seal shall set forth “the 23 statutory or other authority for sealing, the requested duration, the identity, by name or 24 category, of persons to be permitted access to the document, and all relevant information.” 25 Local Rule 141(b). 26 The Court observes there is a “strong presumption in favor of access to court 27 records[.]” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 1 “The presumption of access is ‘based on the need for federal courts, although independent – 2 indeed, particularly because they are independent – to have a measure of accountability and for 3 the public to have confidence in the administration of justice.’ ” Id. (quoting United States v. 4 Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 5 A request to seal material must normally meet the high threshold of showing that 6 “compelling reasons” support secrecy. See Ctr. for Auto Safety, 809 F.3d, at 1096-97. A party 7 seeking to file something under seal must present “compelling reasons” supporting the request. 8 Id. The compelling reasons standard requires that the Court: (1) find a compelling reason 9 supporting sealing the record, and (2) articulate the factual basis for sealing the record without 10 relying on hypothesis or conjecture. Id. at 1096-97. The Court must “conscientiously balance” 11 the competing interests of the public and the party who wishes to keep the documents private. 12 Id. at 1097; see also Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179-81 (9th 13 Cir. 2006). “What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the 14 trial court.’ ” Ctr. for Auto Safety, 809 F.3d, at 1097 (quoting Nixon v. Warner Commnc'ns, 15 Inc., 435 U.S. 589, 599 (1978)).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2
4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-JLT
12 Petitioner, DEATH PENALTY CASE
13 v. ORDER REGARDING PETITIONER’S APPLICATION TO FILE DOCUMENTS 14 RON BROOMFIELD, Warden of California UNDER SEAL State Prison at San Quentin, 15 Respondent.1 16
17 18 I. INTRODUCTION 19 On July 28, 2023, Petitioner, through counsel Kresta Daly and Saor Stetler, filed on the 20 public docket a Notice of Filing Under Seal an Application to Seal privileged materials. (Doc. 21 69.) The Notice is associated with the Court’s July 13, 2023 order that tentatively denied 22 Petitioner’s May 15, 2023 Motion for Equitable Tolling and provided his counsel until July 28, 23 2023 to submit to ex parte and in camera to the Court for sealing any supplemental privileged 24 material supporting the motion. (Doc. 68.) 25 Petitioner has timely submitted to the Court supplemental privileged materials along 26 with an Ex Parte Application to Seal and Proposed Order, as required by Eastern District of
27 1 Pursuant to the Federal Rules of Civil Procedure, Rule 25(d), Ron Broomfield, Warden of San Quentin State Prison, shall be substituted as Respondent in place of his predecessor wardens. 1 California Local Rule (“Local Rule”) 141.2 Petitioner states the materials to be sealed are 2 privileged and so have not been provided to Respondent. (Doc. 69 at 1-2.) 3 Respondent has not opposed Petitioner’s sealing request, and the time for doing so has 4 expired. Local Rule 141(c). Petitioner’s sealing request is therefore deemed unopposed. 5 II. BACKGROUND 6 On February 26, 1998, Petitioner was convicted of two first-degree murders and first- 7 degree residential robbery. The special circumstances of multiple-murder and robbery-murder 8 were found true, and he was sentenced to death. People v. Richard Allen McWhorter, Kern 9 County Superior Court Case No. 65352A. 10 The California Supreme Court affirmed Petitioner’s judgment of conviction and 11 sentence on automatic appeal. People v. Richard Allen McWhorter, 47 Cal. 4th 318, rehearing 12 denied October 14, 2009, as modified October 14, 2009. On October 4, 2010, the United 13 States Supreme Court denied certiorari. Richard Allen McWhorter v. California, 562 U.S. 844. 14 Thereafter, the California Supreme Court summarily denied Petitioner’s habeas corpus 15 petition. In re McWhorter, Cal. Case No. S180404. 16 On February 11, 2020, Petitioner began this federal habeas proceeding pursuant to 28 17 U.S.C. § 2254 (Docs. 1, 2) and the Court appointed counsel on March 31, 2020. (Doc. 9, citing 18 18 U.S.C. § 3599.) 19 On July 24, 2020, Respondent lodged the record.3 (Docs. 16-18.) Three months later, 20 the Court granted Petitioner’s motion to equitably toll the limitations deadline under 28 U.S.C. 21 § 2244 from January 22, 2021, to and including March 31, 2021, due to delay in the 22 appointment of federal habeas counsel. (Doc. 22.) 23 The Court granted further equitable tolling of the § 2244 deadline through January 30, 24 2023 in response to Petitioner’s second through fifth motions, on grounds extraordinary
25 2 Local Rule 141(b) directs a party seeking to seal documents to electronically file a “Notice of Request to Seal Documents” and to e-mail a “Request to Seal Documents,” proposed order, and all documents covered by the 26 request to the appropriate Judge or Magistrate Judge's proposed order e-mail box. All reference to pagination is to ECF system pagination unless stated otherwise. 27 3 Respondent augmented the lodged record on March 27, 2023. (Docs. 52, 52-1.) Respondent made a second 1 circumstances raised by the COVID-19 pandemic impeded investigation, development, and 2 presentation of his federal claims. (Docs. 28, 36, 42, 46.) 3 During the period of tolling, on October 22, 2021, Petitioner filed in this proceeding a 4 297-page (protective) petition pursuant to § 2254 stating 22 fully exhausted record-based 5 claims. (Doc. 34.) 6 On March 6, 2023, the Court denied without prejudice to renewal Petitioner’s sixth 7 motion for equitable tolling, which sought to prospectively toll the January 30, 2023 deadline 8 for filing his amended federal petition. (Doc. 50.) The Court found that Petitioner did not 9 make a sufficient showing that extraordinary circumstances raised by COVID-19, his impaired 10 mental and physical health, and his counsel’s need for additional Criminal Justice Act funding 11 entitled him to further equitable tolling. (Id.) 12 On May 15, 2023, Petitioner filed his federal amended habeas corpus petition pursuant 13 to § 2254 (Doc. 63), and concurrently renewed his previously denied request to further 14 equitably toll the limitations deadline pursuant to § 2244 from January 30, 2023 to filing of the 15 federal amended petition. (Doc. 64). 16 III. DISCUSSION 17 Petitioner supports the sealing request by observing that the contents of materials 18 proffered for sealing are privileged including under the work product and attorney-client 19 privileges. 20 Requests to seal documents in this district are governed by Local Rule 141, which 21 provides that documents may be sealed only upon written order of the Court after a specific 22 request to seal has been made. Local Rule 141(a). The request to seal shall set forth “the 23 statutory or other authority for sealing, the requested duration, the identity, by name or 24 category, of persons to be permitted access to the document, and all relevant information.” 25 Local Rule 141(b). 26 The Court observes there is a “strong presumption in favor of access to court 27 records[.]” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 1 “The presumption of access is ‘based on the need for federal courts, although independent – 2 indeed, particularly because they are independent – to have a measure of accountability and for 3 the public to have confidence in the administration of justice.’ ” Id. (quoting United States v. 4 Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). 5 A request to seal material must normally meet the high threshold of showing that 6 “compelling reasons” support secrecy. See Ctr. for Auto Safety, 809 F.3d, at 1096-97. A party 7 seeking to file something under seal must present “compelling reasons” supporting the request. 8 Id. The compelling reasons standard requires that the Court: (1) find a compelling reason 9 supporting sealing the record, and (2) articulate the factual basis for sealing the record without 10 relying on hypothesis or conjecture. Id. at 1096-97. The Court must “conscientiously balance” 11 the competing interests of the public and the party who wishes to keep the documents private. 12 Id. at 1097; see also Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179-81 (9th 13 Cir. 2006). “What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the 14 trial court.’ ” Ctr. for Auto Safety, 809 F.3d, at 1097 (quoting Nixon v. Warner Commnc'ns, 15 Inc., 435 U.S. 589, 599 (1978)). 16 The Ninth Circuit has stated that “compelling reasons” sufficient to outweigh the 17 public's interest in disclosure and justify sealing court records exist, for example, when “court 18 files might have become a vehicle for improper purposes, such as the use of records to gratify 19 private spite, promote public scandal, circulate libelous statements, or release trade secrets.” 20 Id. at 1179 (citing Nixon, 435 U.S., at 598). However, “[t]he mere fact that the production of 21 records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation 22 will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d, at 1179 23 (citing Foltz, 331 F.3d, at 1136). 24 Where the material is, at most, “tangentially related” to the merits of a case, the request 25 to seal may be granted on a lesser showing of “good cause” to find prejudice or harm for each 26 document sought to be protected. Ctr. for Auto Safety, 809 F.3d, at 1096-1102; see also 27 Kamakana, 447 F.3d, at 1178-80; Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th 1 | in such a case, a “particularized showing” that public disclosure would cause annoyance, 2 | embarrassment, oppression, or an undue burden will suffice to seal non-dispositive records. 3 | Kamakana, 447 F.3d, at 1180; see also Fed. R. Civ. P. 26(c){1). Pursuant to Federal Rule of 4 | Civil Procedure 5.2(d), a court “may order that a filing be made under seal without redaction.” 5 Petitioner has complied with Local Rule 141. The Court has reviewed the Application 6 | to Seal and the materials sought to be sealed and finds compelling reasons to grant the 7 | Application. These materials contain information regarding representation, the attorney client 8 | relationship, and attorney work product, that is privileged and confidential under state law. 9 | Thus, the Court ORDERS: 10 1. Petitioner’s Application to Seal nine (9) pages of privileged material submitted 11 | ex parte and in camera to the Court is GRANTED. 12 2. The privileged materials submitted to the Court (totaling 9 pages), shall be 13 | FILED UNDER SEAL until further order of the Court, with SERVICE UPON ONLY 14 | COUNSEL FOR PETITIONER. These documents shall not be publicly filed unless 15 | otherwise ordered by the Court. 16 3. Petitioner’s counsel shall email the above privileged materials to 17 | ApprovedSealed @caed.uscourts.gov for filing under seal in compliance with Local Rule 141 18 | WITHIN THREE DAYS of the date of entry of this order. 19 IT IS SO ORDERED. Dated: _August 1, 2023 ears [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28