Smalley v. Oliver

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 DEON D. SMALLEY, Case No. 3:21-cv-00331-APG-CLB 5 Petitioner, 6 ORDER v. 7 GABRIELLA NAJERA, et al., 8 Respondents. 9

10 11 12 In this habeas corpus action, the respondents filed a motion to dismiss on May 30, 2023. 13 ECF No. 31. The petitioner, Deon D. Smalley, represented by appointed counsel, is due to file a 14 response to the motion to dismiss by July 14, 2023. See ECF No. 12 (scheduling order) (45 days 15 for response to motion to dismiss). On June 9, 2023, Smalley filed a motion for extension of 16 time, requesting an extension of time to June 27, 2023, to respond to the motion to dismiss. ECF 17 No. 37. I will deny that motion, as unnecessary; Smalley has until July 14, 2023, to respond to 18 the motion to dismiss. I will also, sua sponte, grant Respondents 30 days to file a reply to 19 Smalley’s response to the motion to dismiss. 20 On May 30, 2023, Respondents filed a motion requesting leave of court to file an 21 exhibit—their Exh. 47—under seal. ECF No. 35. The exhibit Respondents propose to file under 22 seal is a presentence investigation report. While there is a strong presumption in favor of public access to 23 judicial filings and courts prefer that the public retain access to them, see Nixon v. Warner 24 Communications, Inc., 435 U.S. 589, 597 (1978), a court may seal its records if a party demonstrates 25 “compelling reasons” to do so. See Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178–79 (9th 26 Cir. 2006). “Compelling reasons” exist where the records could be used for improper purposes. 27 Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598). Presentence investigation reports 1 || Nevada law, presentence investigation reports are confidential, and are not to be made part of a 2 || public record. See NRS 176.156(5). In view of the state law and considering the nature of the 3 || information in this exhibit, I find that there are compelling reasons for the exhibit to be filed 4 || under seal, and I will grant this motion. 5 IT IS THEREFORE ORDERED that Petitioner’s Motion for Extension of Time (ECF 6 || No. 37) is DENIED as unnecessary. Petitioner has until and including July 14, 2023, to file a 7 || response to the motion to dismiss. Respondents will then have 30 days to file a reply to 8 || Petitioner’s response to the motion to dismiss. In all other respects, the schedule for further Q || proceedings set forth in the order entered March 3, 2022 (ECF No. 12) will remain in effect. 10 IT IS FURTHER ORDERED that Respondents’ Motion for Leave to File Exhibit In 11 || Camera and Under Seal (ECF No. 35) is GRANTED. As the exhibit in question—Exh. 47—has 12 || already been filed under seal (ECF No. 36-1), no further action is necessary in this regard. 13 IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), 14 || Gabriella Najera is substituted for William Hutchings as the respondent warden. The Clerk of the 15 || Court is directed to update the docket to reflect this change. 16 DATED THIS12tN day of June , 2023. 17 18 ( So ANDREW P. GORDON 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28