Penland v. Warden, Toledo Correctional Institution

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

ALEX PENLAND,

Petitioner, : Case No. 1:18-cv-648

- vs - District Judge Michael R. Barrett Magistrate Judge Michael R. Merz

SEAN BOWERMAN, Warden, Toledo Correctional Institution,

: Respondent. DECISION AND ORDER STRIKING DESIGNATION OF MOTION FOR AUTHORIZATION [OF] EXPENSE FOR EXPERT AS FILED EX PARTE AND UNDER SEAL AND DENYING MOTION; ORDER TO THE CLERK

This habeas corpus case is before the Court on Petitioner’s Application for Authorization [of] Expense for Expert (ECF No. 62). Petitioner filed the document with the designation that it is “ex parte” and also that it is filed under seal. Except in very limited circumstances, judges are ethically prohibited from considering ex parte requests from parties to litigation. The instant Application does not qualify for that treatment and its designation as filed ex parte is stricken. Furthermore and perhaps more fundamentally, no document may be filed in this Court under seal without prior permission of a judge. S. D. Ohio Civ. R. 5.2.1; Shane Group., Inc., v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir. 2016)(Kethledge, J.). Accordingly, the Clerk is ORDERED to remove the designation “ex parte” and “Sealed” from the Application and notify respondent’s counsel of the availability of these documents. As authority for granting the Application, Penland relies on 18 U./S.C. § 3006A. That statute authorizes counsel appointed under a Criminal Justice Act plan to apply for funding for necessary expert services. The statute does not authorize applications for expert funds by pro se

litigants nor is the Magistrate Judge aware that Congress has ever appropriated funds for such services for pro se litigants. In addition to the lack of authorization to procure the services, Penland has not shown that the result of any such expert review would be admissible in evidence, given the limitations on post-conviction evidence in Cullen v. Pinholster, 563 U.S. 170 (2011). The Application is DENIED.

January 21, 2020. s/ Michael R. Merz United States Magistrate Judge