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Leavitt v. Neven

United States District Court, D. Nevada

March 9, 2015

CODY CORY LEAVITT, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

ORDER

JAMES C. MAHAN, District Judge.

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254 by a Nevada state prisoner represented by counsel. Before the court are the following motions: (1) respondents' motion to dismiss the amended petition (ECF No. 48); (2) respondents' motion to file exhibits under seal and to strike improperly filed exhibits (ECF No. 51); (3) petitioner's motion to file redacted petition and exhibits (ECF No. 52); and (4) respondents' motion for an extension to file a reply regarding the motion to dismiss (ECF No. 58).

I. Procedural History

A. Eighth Judicial District Criminal Case No. C-233866

On March 29, 2007, the State filed a criminal complaint against petitioner charging him with battery with the use of a deadly weapon, first degree kidnapping, sexual assault with a minor under fourteen years of age, and lewdness with a child under the age of fourteen. (Exhibit A).[1] On May 31, 2007, a preliminary hearing was held in which petitioner was bound over to the Eighth Judicial District Court for the State of Nevada. (Exhibit D). On June 5, 2007, petitioner was charged by information, with the same crimes alleged in the criminal complaint, in Eighth Judicial District Court Case No. C-233866. (Exhibit C).

On June 17, 2008, petitioner filed a motion to be released or to reduce bond. (Exhibit E). On July 7, 2008, the court ordered petitioner to remain on house arrest until the commencement of trial scheduled for August 25, 2008. (Exhibit F). On October 14, 2008, the State filed an amended information against petitioner, charging him with one count of child abuse and neglect with substantial bodily harm. (Exhibit G). Also on October 14, 2008, a guilty plea agreement was filed, in which petitioner pled guilty to one count of child abuse and neglect with substantial bodily harm, as alleged in the amended information. (Exhibit H). On January 13, 2009, petitioner was sentenced to 60-180 months in the Nevada Department of Corrections, with 35 days credit for time served. (Exhibit J). The judgment of conviction was filed on January 29, 2009. (Exhibit K).

B. Post-Conviction Habeas Petition, Motion to Withdraw Guilty Plea, and Nevada Supreme Court Appeal No. 57195

On January 8, 2010, petitioner filed a counseled post-conviction habeas petition in the state district court. (Exhibit L). On January 13, 2010, petitioner filed a counseled motion to withdraw his guilty plea. (Exhibit M). On January 26, 2010, a hearing was held on petitioner's motion to withdraw his plea. (Exhibit O). On February 22, 2010, petitioner filed an errata to his habeas petition correcting an error in the petition, but not adding anything new to the petition. (Exhibit P). On May 13, 2010, an evidentiary hearing was held. (Exhibit T). On May 21, 2010, petitioner filed a counseled supplement to the post-conviction habeas petition. (Exhibit U). The state district court filed findings of fact and conclusions of law on July 29, 2010, denying the post-conviction habeas petition. (Exhibit W). The state district court ruled that petitioner received effective assistance of counsel and that petitioner freely, voluntarily, and knowingly entered his guilty plea. ( Id. ). On November 12, 2010, petitioner filed a notice of appeal from the denial of the post-conviction habeas petition and motion to withdraw his guilty plea. (Exhibit X). On November 18, 2010, the state district court filed its notice of entry of decision and order. (Exhibit Y).

On November 19, 2010, the Nevada Supreme Court entered its notice to petitioner to file a case appeal statement in Case No. 57195, which was petitioner's appeal from the denial of his post-conviction habeas petition and motion to withdraw his guilty plea. (Exhibit Z). On December 20, 2010, through counsel, petitioner filed his case appeal statement. (Exhibit BB). On August 31, 2011, petitioner filed his fast track statement in Case No. 57195. (Exhibit MM). On November 28, 2011, the Nevada Supreme Court filed an order to show cause why the appeal should not be dismissed for lack of jurisdiction because the findings of fact, conclusions of law, and order of July 29, 2010 did not resolve all of the claims raised in the petition. (Exhibit OO). On January 13, 2012, the Nevada Supreme Court entered an order finding, upon further review, that the district court's order resolved all claims for relief sought, and that it had jurisdiction to hear the appeal from the denial of the habeas petition and motion to withdraw his guilty plea. (Exhibit SS). On March 7, 2012, the Nevada Supreme Court filed an order affirming the denial of the post-conviction habeas petition and motion to withdraw guilty plea. (Exhibit TT). Remittitur issued on June 6, 2012. (Exhibit WW).

C. Petition Regarding Time Credit and Nevada Supreme Court Appeal No. 59048

On May 13, 2011, petitioner filed a habeas petition in the state district court challenging the computation of credit for time served. (Exhibit DD). Petitioner asserted that he should have been given credit for time served for the time he was on house arrest. ( Id. ). On August 19, 2011, the state district court filed findings of fact, conclusions of law, and order granting in part and denying in part the petition. (Exhibit LL). The state district court reached the merits of the petition and ruled that credit for time served was allowed for time spent in jail, but not for time while a defendant is on house arrest, because house arrest is not considered confinement. ( Id. ). The court ruled that petitioner was entitled to 3 additional days of credit for time served while incarcerated prior to his conviction, for a total of 38 days credit for time served. ( Id. ). On December 2, 2011, the state district court filed an amended judgment of conviction, indicating that petitioner was given 38 days credit for time served. (Exhibit PP). Petitioner appealed from the state district court's order denying his petition asking for credit for time spent on house arrest. (Exhibit KK). By order filed April 11, 2012, in Case No. 59048, the Nevada Supreme Court affirmed the denial of the habeas petition seeking credit for time spent on house arrest. (Exhibit VV). The Nevada Supreme Court ruled that the state district court erred in reaching the merits of the claims raised on the petition, because the petition was procedurally barred as untimely under NRS 34.726 and was barred for abuse of the writ under NRS 34.810(2). ( Id. ). The court ruled that the petition was untimely by more than two years after the entry of the judgment of conviction on January 24, 2009. ( Id. ).

D. Federal Petition in the Instant Case

Petitioner dispatched (gave to prison officials for mailing) his federal petition on May 14, 2012. (ECF No. 1, at p. 2, item 5). The petition was filed in this court on June 11, 2012. ( Id. ). By order filed June 18, 2012, this court initially denied petitioner's motion for the appointment of counsel. (ECF No. 3). Petitioner made a renewed motion for the appointment of counsel. (ECF No. 4). On July 6, 2012, this court granted petitioner's motion for the appointment of counsel, noting that due to the interrelation of another habeas action filed by petitioner in this court, the appointment of counsel was warranted. (ECF No. 6). On August 6, 2012, the federal public defender filed a notice of conflict preventing that office from representing petitioner. (ECF No. 11). Therefore, on August 15, 2012, the court appointed CJA panel attorney Todd M. Leventhal to represent petitioner in this action. (ECF No. 12). On October 18, 2012, Mr. Leventhal made an appearance on behalf of petitioner. (ECF No. 13).

On March 19, 2013, counsel Leventhal filed a motion to withdraw as petitioner's attorney. (ECF No. 24). This court denied the motion to withdraw, and instead stayed this case to accommodate Leventhal's scheduling conflicts. (ECF No. 25). On September 27, 2013, counsel for petitioner filed a motion to lift the stay. (ECF No. 29). On October 8, 2013, this court granted the motion, directed the clerk of court to reopen this action, and set a deadline for petitioner's counsel to file an amended petition. (ECF No. 34). On October 15, 2013, petitioner's counsel filed an amended petition and exhibits. (ECF No. 36). The court directed respondents to file an answer or otherwise respond to the amended petition. (ECF No. 37). On November 5, 2013, respondents filed a motion to strike the amended petition because the exhibits filed in support of the amended petition were not properly marked pursuant to Local Rule 10-3(a). (ECF No. 38). On November 19, 2013, petitioner filed an errata to the exhibits in support of the amended petition, correcting the exhibits by properly marking them. (ECF No. 39). Respondents moved to withdraw their motion to strike in light of petitioner's correction of the exhibits. (ECF No. 40). Respondents also moved for an extension of time in which to file response to the amended petition. (ECF No. 41). By order filed December 26, 2013, the court granted respondents' motion to withdraw their motion to strike and set a deadline for respondents to file a response to the amended petition. (ECF No. 42).

On March 7, 2014, respondents filed the instant motion to dismiss the amended petition. (ECF No. 48). Concurrently, respondents filed exhibits comprising the state court record, as well as a motion for leave to file certain exhibits under seal and to strike certain exhibits filed by petitioner. (ECF Nos. 49, 50, 51). On March 20, 2014, petitioner filed a combined response to respondents' motion to strike improperly filed exhibits and request to file a redacted petition and exhibits. (ECF No. 52). On the same date, petitioner filed an amended petition and exhibits in which inappropriate information is properly redacted. (ECF No. 54). On April 21, 2014, petitioner filed supplemental exhibit 54, in which inappropriate information is properly redacted. (Exhibit 57). On May 8, 2014, respondents filed a reply to petitioner's response to the pending motion to dismiss the amended petition. (ECF No. 59).[2]

II. Motions and Requests Concerning Exhibits

Respondents have filed a motion to file under seal certain exhibits in support of their motion to dismiss. (ECF No. 51). The exhibits that respondents seek to be filed under seal include the following: Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, and MM. Respondents electronically filed only the pages marking each of the exhibits sought to be filed under seal, but did not file the exhibits themselves. Instead, respondents submitted hard copies of the actual exhibits for this court's in camera review. (ECF No. 49).

There is a strong presumption in favor of public access to judicial filings and documents. See Nixon v. Warner Commc'n, Inc., 435 U.S. 589, 597 (1978); see also Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). However, the court has inherent power over its own records and files, and access may be denied where the court determines that the documents may be used for improper purposes. Nixon., 435 U.S. at 598; Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 (9th Cir. 1995); Kamakana, 447 F.3d at 1179.

The Ninth Circuit distinguishes between dispositive and nondispositive pleadings and motions in terms of the showing required to seal a document. For a document filed with a dispositive motion, "compelling reasons" must be shown to justify sealing the document. Kamakana, 447 F.3d at 1179-89. In contrast, for documents filed with non-dispositive motions, a "good cause" showing will suffice to keep the records sealed. Id. This is based on the reasoning that the public has less need for access to records that are merely tangentially related to the underlying cause of action. Id. at 1179. A showing of good cause generally requires a specific description of the particular document(s) sought to be sealed and a showing that disclosure of such documents would work a "clearly defined and serious injury." Pansy v. Borough of Stroudsburg, 23 F.3d 772, 776 (3rd Cir. 1994). Where good cause is shown for a protective order, the court must balance the potential harm to the moving party's interests against the public's right to access the court files. Kamakana, 447 F.3d at 1179-89.

The documents that respondents seek to file under seal (Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, and MM) were submitted in support of respondents' motion to dismiss. The motion to dismiss is a dispositive motion and therefore respondents must show "compelling reasons" to keep the document sealed. Kamakana, 447 F.3d at 1179-89. In the instant case, the documents sought to be filed under seal contain sensitive information, including the full name of the minor victim in the underlying criminal case upon which this habeas action is based. On balance, the potential harm to the parties and the affected individual's interests outweighs the public's right to access these documents at Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, and MM. Respondents have made an adequate showing of compelling reasons to file the exhibits under seal. Additionally, in the response to the motion to dismiss, counsel for petitioner requests that respondents' Exhibit DD be sealed, because it contains a presentence report with unredacted personal information including date of birth, social security number, address, and driver's license number of petitioner Leavitt. (ECF No. 56, at pp. 3-4). The court finds that petitioner has made an adequate showing of compelling reasons to file Exhibit DD under seal. Accordingly, within ten (10) days from the date of entry of this order, respondents shall electronically file under seal Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD, and MM, pursuant to Local Rule of Civil Practice 10-5. In filing these exhibits under seal, respondents need not file an accompanying motion for leave to file documents under seal pursuant to Local Rule 10-5(b), because this order specifically permits the filing of the exhibits under seal.

Significantly, counsel for petitioner indicates in his response to the motion to dismiss that he has not received a copy of respondents' sealed exhibits. (ECF No. 56, at p. 4, n.3). It appears that respondents failed to serve petitioner's counsel with the sealed documents. Therefore, in addition to electronically filing Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD and MM under seal, respondents shall also serve petitioner's counsel with a copy of those same sealed exhibits within ten (10) days from the date of entry of this order.

Also in the response to the motion to dismiss, petitioner requests that the court strike respondents' Exhibits DD, EE, FF, KK, LL, and VV. Petitioner asks that the exhibits be stricken because they do not directly relate to the counseled state habeas petition challenging the conviction and sentence in this case. (ECF No. 56, at pp. 2-3). As outlined in the procedural history of this order, supra, the court is aware that respondents' Exhibits DD, EE, FF, KK, LL, and VV relate to petitioner's pro se petition challenging the computation of credit for time served, rather than the counseled state petition challenging petitioner's conviction and sentence. ...


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