United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
The matter is before the court on respondent's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 19), which was fully briefed. Also before the court is respondent's motion to seal (DE 28). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motions.
STATEMENT OF THE CASE
On October 16, 2002, a jury in the United States District Court for the Middle District of North Carolina found petitioner guilty of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). United States v. Farrow, No. 1:02-CR-230-WO-1 (M.D. N.C. Oct. 16, 2002). Petitioner's § 922(g) conviction was predicated on a prior February 12, 1990, North Carolina state court conviction for four counts of felony sale of cocaine for which petitioner was sentenced to a five year term of imprisonment. United States v. Farrow , 364 F.3d 551 (4th Cir. 2004); (PSR ¶¶ 3, 23.) On February 18, 2003, the United States District Court for the Middle District of North Carolina sentenced petitioner to a term of two hundred twenty-two (222) months imprisonment and a five year term of supervised release for his § 922(g) conviction. United States v. Farrow, No. 1:02-CR-230-WO-1 (M.D. N.C. Feb. 18, 2003). The United States Fourth Circuit Court of Appeals subsequently affirmed petitioner's conviction and sentence on April 15, 2004. Farrow , 364 F.3d at 556.
On March 24, 2005, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which was dismissed without prejudice on the same date because petitioner's pleading did not comply with the sentencing court's local rules of practice and procedure. United States v. Farrow, No. 1:02-CR-230-WO-1 (M.D. N.C. Mar. 24, 2005). On October 7, 2005, petitioner properly filed his § 2255 petition, and it was denied on May 26, 2006. Id . (May 26, 2006). Petitioner subsequently filed two additional § 2255 petitions which were dismissed as second or successive. Id . (July 28, 2008, Aug. 23, 2010.)
On August 16, 2012, petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he is actually innocent of being a felon in possession of a firearm and of being an armed career criminal pursuant to the United States Supreme Court's ruling United States v. Simmons , 649 F.3d 237 (4th Cir. 2011). On January 24, 2013, the court dismissed petitioner's § 2241 petition. Petitioner appealed the court's decision to the Fourth Circuit Court of Appeals.
On October 9, 2013, the Court of Appeals issued an order affirming this court's decision as to petitioner's challenge to his armed career criminal status. The court of appeals, however, vacated and remanded petitioner's actual innocence claim. On December 4, 2013, this court entered an order allowing petitioner to proceed with his actual innocence claim.
On January 23, 2014, respondent filed a motion to dismiss, arguing that petitioner failed to state a claim upon which relief may be granted, to which petitioner responded. Then, on July 11, 2014, the court entered an order directing the parties to expand the record. Specifically, the court directed respondent to file a copy of petitioner's presentence investigation report ("PSR"), which respondent referenced in her motion to dismiss, but was not available on petitioner's criminal docket sheet. The court also directed respondent to provide a copy of any relevant North Carolina state court judgement that served as a predicate felony for petitioner's conviction of being a felon in possession of a firearm in violation of § 922(g). In light of the new materials the court requested, the court informed the parties of its intent to construe respondent's motion to dismiss as a motion for summary judgment and directed the Clerk of Court to issue a Federal Rule of Civil Procedure 56 letter.
On July 29, 2014, respondent complied with the court's July 11, 2014, order. Respondent also filed a motion requesting that petitioner's PSR be filed under seal. Petitioner filed a supplemental response on September 3, 2014.
A. Motion to Seal
Respondent seeks to seal the copy of petitioner's PSR that respondent filed on July 29, 2014. The public has a First Amendment right of access to exhibits submitted in conjunction with a summary judgment motion. See, e.g., Va. Dep't of State Police v. Washington Post , 386 F.3d 567, 578 (4th Cir. 2004) (citing Rushford v. New Yorker Magazine, Inc. , 846 F.2d 249, 253 (4th Cir. 1988)). As such, the parties must offer a compelling reason to keep them under seal. Id. at 578-79. ZDue to the sensitive nature of the contents of petitioner's PSR, the court finds compelling reason that the document be sealed. See, e.g., United States v. Jones, 533 F.Appx. 291, 301 (4th Cir. 2013); L. Crim. R. 32.2(j), E.D. N.C. ; see also, United States v. Matthews, No. 3:07cr226, 2008 WL 5210706, at *1 (E.D. Va. Dec. 12, 2008) ("Peters has not asserted a sufficient particularized need for access to the PSR and that Peters' First Amendment rights were not violated by leaving the other documents in the case under seal.") Thus, respondent's motion to seal is GRANTED.
B. Motion for Summary ...