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In re Cox

United States District Court, Fourth Circuit

October 23, 2013

IN RE: RONALD COX, #355-348,

MEMORANDUM AND ORDER

PAUL W. GRIMM, District Judge.

On August 26, 2013, Ronald Cox, a Maryland state prisoner presently confined at North Branch Correctional Institution in Cumberland, filed a motion seeking disclosure of sealed information pertaining to United States v. Michael West, Crim. No. RDB-08-0372 (D. Md.). See Mot. for Disclosure, ECF No. 1.[1] When the filing is liberally construed consistent with Haines v. Kerner, 404 U.S. 519, 520 (1972), Cox appears to seek the unsealing of documents related to the West case, including the sealed supplement, for use in his state post-conviction proceedings, see Mot. for Disclosure 3.

Cox failed to pay the miscellaneous filing fee of forty-six dollars ($46), see 28 U.S.C. 9 1914, or to provide an indigency affidavit to seek leave to proceed in forma pauperis. He was reminded of this deficiency and granted fourteen (14) days to correct the deficiency. See Order, ECF NO.4. He shall be granted a final fourteen (14) days to correct this deficiency. Cox is cautioned that failure to submit the required filing fee may result in the dismissal of this action without prejudice and without further notice from this Court.

On September 9, 2013, Mr. Gary Proctor entered his appearance, pro bono, on behalf of Petitioner.[2] See Notice, ECF NO.2. I held a telephone conference on September 11, 2013 with Mr. Proctor, Counsel for West, and the U.S. Attorney's Office. I ordered Mr. Proctor to submit a proposal for documents to be released to Petitioner's state habeas attorney, Ms. Judith Jones. See Letter Order, ECF NO.5. On September 30, 2013, Cox submitted, without his counsel, a handwritten request under the Freedom of Information Act for the same documents he requested in his Motion. See Correspondence, ECF NO.6. I denied his request without prejudice as duplicative of his Motion. Letter Order, ECF NO.7.

Mr. Proctor requested the release of the Plea Agreement, the Sealed Supplement, an Emergency Motion, portions of the Sentencing Memorandum, and portions of the Statement of Reasons from West's criminal case.[3] Those documents would be released directly to Ms. Jones, subject to a protective order. Counsel for West and the Government submitted responses.[4] Both agreed to the release of the Plea Agreement, the Sealed Supplement, and the Emergency Motion, but expressed concerns, for various reasons, about releasing the contents of the Sentencing Memorandum and the Statement of Reasons.[5] Mr. Proctor submitted a reply.[6] There, he argues that any agreement between West and the Government and its resulting impact on West's ultimate sentence, as well as the timeliness of their disclosure to Cox's trial counsel, are relevant to Cox's state post-conviction proceedings. I agree, and am ordering the below identified sealed filings in West's case to be made available to Cox's state post-conviction attorney for use in those proceedings.

After consideration of all the filings by Cox, Mr. Proctor, Counsel for West, and the Government, I find it appropriate to release to Ms. Jones the following documents from United States v. West, Crim. No. RDB-08-372, subject to an appropriate protective order: the Plea Agreement, ECF No. 31; the Sealed Supplement, ECF No. 32; the Emergency Motion, ECF No. 35; and the Judgment, ECF No. 47. As all parties recognize, Ms. Jones should receive the Plea Agreement, the Sealed Supplement, and the Emergency Motion. However, the Government and Counsel for West raise legitimate concerns about the potential dangers of releasing the Sentencing Memorandum and the Statement of Reasons. That said, the judgment imposing West's criminal sentence may be relevant to Cox's state proceedings. Mr. Proctor acknowledges that he cannot precisely articulate his need for the Statement of Reasons and the Judgment because they are sealed and he cannot review the documents. After an independent review, I find the Judgment an adequate substitute for the Statement of Reasons. Therefore, in place of the Sentencing Memorandum and the Statement of Reasons, Ms. Jones shall receive the Judgment. With the Plea Agreement, the Sealed Supplement, the Emergency Motion, and the final judgment, Ms. Jones will have sufficient information adequate to represent Cox in his state proceedings.

In the Letter Order dated September 16, 2013, I ordered the parties to submit filings directly to my Chambers and ordered that the parties not file documents on CM/ECF, due to the sensitivity of the issues and the potential dangerousness if the information became public. That order is hereby rescinded and any future filings in this action shall be filed in CM/ECF, rather than sent to Chambers directly. The parties shall submit a joint proposed protective order, with Ms. Jones's signature, for the Court's approval. The protective order shall clearly state that the documents released pursuant to this Order remain sealed and are not to be given to Cox. Their use shall be limited to discussions of their content and sections may be shown to Cox at the discretion of his counsel. If the documents are filed in state court, they must be filed under seal. Once the signed protective order is approved, I will direct the Clerk to mail the four documents listed above directly to Ms. Jones.

Accordingly, it is this 23rd day of October, 2013, by the United States District Court for the District of Maryland, hereby ordered:

1. Petitioner Ronald Cox IS GRANTED a final fourteen (14) days leave to pay the proper filing fee or to seek leave to proceed in forma pauperis;
2. The parties SHALL FILE an executed joint proposed protective order for the Court's approval;
3. The Clerk SHALL MAIL a copy of thir to Petitioner.

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