United States District Court, E.D. Virginia, Newport News Division
REBECCA BEACH SMITH, Chief District Judge.
This matter comes before the court on the Defendant's "Motion for Limited Unsealing of Record and for Leave to Review and Copy Materials in the Custody of the Court" ("Motion"), ECF No. 415, and Memorandum in Support thereof, ECF No. 416, filed through counsel on March 17, 2015. On March 18, 2015, the court ordered the United States to file responsive pleadings, Order, ECF No. 417, with which directive the United States timely complied on March 31, 2015 ("Response"). ECF No. 418. On April 3, 2015, the Defendant filed his Reply. ECF No. 421. The Motion is now ripe for review.
By Memorandum Order of November 5, 2014, this court appointed Michele J. Brace of the Virginia Capital Representation Resource Center to represent the Defendant on collateral review in this court. ECF No. 410. In the instant Motion, the Defendant asks to copy various documents from the trial record, including juror questionnaires, the list of potential jurors who were peremptorily struck and the party which exercised each strike, and all documents filed ex parte or under seal. Mot. at 1. The Defendant asserts that "[i]n order to investigate whether Runyon's trial counsel rendered ineffective assistance with respect to the process of jury selection, postconviction counsel must review all of the materials that trial counsel possessed." Mem. Supp. Mot. at 2. The court does not disagree. Nor does the court disagree with the United States' position that the Defendant is not entitled to all of the material requested. See Resp. at 2. For the reasons stated below, the court GRANTS in part and DENIES in part the Motion.
I. Juror Questionnaires
The Defendant requests a copy of the completed questionnaires of all prospective jurors who returned a questionnaire, in the form of a CD. Mem. Supp. Mot. at 1-3. The United States agrees that the Defendant is entitled to a copy of the questionnaires of the jurors who were brought into the courtroom for voir dire proceedings, but objects to the Defendant obtaining the questionnaires from the jurors who were either excused or were never called into the courtroom. Resp. at 2. In his Reply, the Defendant again asserts that postconviction counsel needs access to all of the juror questionnaires, "in order to determine, for example, whether trial counsel unreasonably failed to challenge compliance with the jury selection procedures under 28 U.S.C. § 1861 et seq. and this Court's Plan for the Random Selection of Grand and Petit Jurors." Reply at 2.
As to the Defendant's request for all juror questionnaires, the court GRANTS the Motion, provided that counsel for the Defendant maintains the materials as filed under seal and returns all materials to the Clerk when the habeas litigation is complete, together with a sworn statement from counsel that the materials have been maintained under seal, and no copies thereof of any nature-paper, electronic, or otherwise-exist. The Clerk is DIRECTED to release copies of the questionnaires of all the prospective jurors who completed a questionnaire, to counsel for the Defendant and to the United States Attorney at Newport News. No contact, direct or indirect, may be made with any of the prospective jurors, or any juror who served at any juncture in the case, absent further order of the court.
II. Peremptory Strike Lists
The Defendant next requests any peremptory strike lists. Mem. Supp. Mot. at 3. In support, the Defendant argues that "[i]nformation about who struck whom was known to trial counsel, and postconviction counsel needs that same information in order to investigate potential claims." Id . The United States does not object to postconviction counsel obtaining a copy of any peremptory strike lists that may exist. Resp. at 2. However, the United States requests that the Defendant be ordered to use the initials of jurors and not their full names, if postconviction counsel makes a claim regarding the strikes. Id. at 2-3. In Reply, postconviction counsel opposes the United States' request that juror initials be substituted for full names. Reply at 2-3.
As to the Defendant's request for peremptory strike lists, the court GRANTS the Motion, provided that counsel for the Defendant maintains the materials as filed under seal and returns all materials to the Clerk when the habeas litigation is complete, together with a sworn statement from counsel that the materials have been maintained under seal, and no copies thereof of any nature-paper, electronic, or otherwise-exist. However, to the extent that the Defendant uses the information in the peremptory strike lists in his habeas petition, the Defendant is ORDERED to use the initials of jurors and not their full names, or to use juror number identifiers.
III. Sealed Docket Entries
Lastly, the Defendant requests all docket entries that were originally filed under seal or ex parte. The Defendant lists approximately one hundred records, including those filed by his co-defendants, Catherina Rose Voss and Michael Anthony Eric Draven. See Mem. Supp. Mot. at 4. The Defendant argues that the "pleadings filed by another defendant can be relevant, because they may show issues that Runyon's trial counsel should have been aware of, but did not pursue." Id. at 5. In its Response, the United States does not object to the Defendant's request as to all sealed documents filed by the Defendant's trial counsel, but does object to the Defendant's request as to all other sealed documents filed by other parties. Resp. at 3.
"[A] district court has supervisory power over its own records and may, in its discretion, seal documents if the public's right of access is outweighed by competing interests.'" Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000) (quoting In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984)). As to the Defendant's request for all docket entries filed under seal or ex parte,  the court GRANTS in part and DENIES in part the Motion. Specifically, the Defendant is granted access only to those docket entries filed under seal or ex parte in the Defendant's case and on his behalf.
The Clerk shall forward a copy of this Memorandum Order to counsel for the Defendant and to the United States ...