B. LYNN WINMILL, Chief District Judge.
Pending before the Court in Case No. 1:06-cr-00126-BLW is Gregory Frank Sperow's ("Sperow") Motion to Unseal and Make Documents Available (Dkt. 1197). Having reviewed the Motion, and considered the Government's Response (Dkt. 1198) and Sperow's Reply (Dkt. 1199), the Court enters the following Order granting the Motion in part. Because Sperow requests the documents in connection with his pending Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Dkt. 1 in Case No. 1:12-cv-00158-BLW), the Court will direct that this Order be filed in that case as well.
Sperow moves for an order in his criminal case to unseal numerous documents referenced in the caption to his Motion and make them available to him because he deems them "necessary to establish whether the due process right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, a constitutional protection under the Fifth and Fourteenth Amendments, has been violated in the instant case." He further states that they are "necessary and proper" to the preparation of his § 2255 brief and that "the lack thereof will negatively impact is ability to properly reply to the Government's response." One of the requested documents is a hearing transcript. The Court presumes he is requesting the documents at government expense given his in forma pauperis status. Only a handful of the requested documents are actually sealed.
The Government opposes the request for what it approximates are "150 docket entries, of which 19 are sealed documents and may contain ex parte communications with the Court" and because "[t]he remaining 130-plus documents pertain to co-defendants in this case." Response at 1. The Government also objects because the "key issue" raised by the Government in response to the pending § 2255 Motion is waiver and the requested documents do not appear to relate to that issue. Finally, it objects on the grounds that the Motion further delays resolution of the § 2255 Motion.
In his Reply, Sperow appears to limit his request to Dkts. 1-20. He states that he has found gaps in the Docket Report and that he feels the sealed documents are "pertinent to his defense." He cites as an example "a missing Temporary Restraining Order ("TRO") whereby the mandatory fourteen (14) day period pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure was violated." He feels "[t]his would show further evidence of ineffective assistance of counsel...."
Despite Sperow's now limited request, and because he requests "the right to reserve the unsealing of the other noted document entry numbers as may be pertinent to his defense, " the Court will address the entire initial request.
2. Legal Standards
After a § 2255 motion is filed, transcripts may be furnished to a prisoner at Government expense (1) if the prisoner is entitled to proceed in forma pauperis, and (2) the Court certifies that the claim raised in the § 2255 proceeding is not frivolous and the transcript is needed to decide the motion. See 28 U.S.C. § 753(f).
A court is required to furnish an indigent prisoner without cost "certified copies of such documents or parts of the record on file... as may be required by order of the judge" before whom a habeas petition is pending. 28 U.S.C. § 2250.
Taken together, the gist of the above-cited authority is that the prisoner must provide the Court with sufficient information on which it can make a determination that the requested transcripts or documents are necessary to decide the § 2255 Motion or are relevant to the issues raised therein. If the Court makes that determination, it is required to provide them to the prisoner without cost.
Sperow has asserted seventeen ineffective assistance of counsel claims in his pending § 2255 Motion. The Government has responded to each of those claims on the merits and also asserted waiver as a defense in its Response and Motion to Dismiss (Dkts. 26 and 27 in Case No. 1:12-cv-00158-BLW). Yet Sperow's stated reasons in the pending motion for requesting the documents are to establish an alleged due process violation that was not raised in his § 2255 Motion and to assist in responding to the Government's Response to his § 2255 Motion. Although he refers in his Reply to "further evidence of ineffective assistance of counsel, " Sperow does not specify the claims or claims in his § 2255 Motion that the requested documents would support.
Even before receiving the Government's Response, the Court conducted an independent review of the documents sought by Sperow and concurs that they have no demonstrated relevance to his claims or defense of the Motion to Dismiss. The Court will not identify and ...