Free Motion to Unseal Document - District Court of Colorado - Colorado

Case 1:01-cr-00395-RPM

Document 575

Filed 01/11/2008

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Richard P. Matsch

Criminal Action No. 01-cr-00395-RPM UNITED STATES OF AMERICA, Plaintiff, v. JACK DOWELL, Defendant. _____________________________________________________________________ MOTION FOR ACCESS TO SEALED FILES AND TO CRIMINAL JUSTICE ACT FORMS _____________________________________________________________________ Defendant Jack Dowell, through his court appointed attorney Richard N. Stuckey1, respectfully moves for an order from this Court allowing court-appointed counsel access to certain sealed document filings in this case, and to relevant Criminal Justice Act forms and files which pertain to this case, and as reason therefor, does state as follows: 1. One contention and allegation in Mr. Dowell's 2255 petition is that his trial counsel represented Dowell while counsel "labored under a conflict of interest" (Doc. 558, pages 40-42). 1. Counsel was appointed by the Court under the Criminal Justice Act in this case (Docs. No. 570, 572) to represent Mr. Dowell pursuant to his request in his "Motion for Appointment of Counsel" contained at pages 30-31 of Doc. 568, "Jack Dowell's Reply to the United States Answer to Dowell's 28 U.S.C. 2255 Motion . . .", which motion requests "an evidentiary hearing to resolve the factual disputes with appointment of counsel under Rule 8(c) governing 28 U.S.C. 2255 proceedings." Rule 8(c) requires the appointment of counsel for an indigent 2255 petitioner "If an evidentiary hearing is warranted . . ." Mr. Dowell's 2255 petition is Civil Action No. 07-cv-02002-RPM in this Court.

Case 1:01-cr-00395-RPM

Document 575

Filed 01/11/2008

Page 2 of 4

2. The alleged conflict of interest made by Mr. Dowell is that trial counsel was being investigated by federal authorities at the time for matters of fraud and theft, which matters then became the substance of sanctions and discipline by the Attorney Regulation Office of the State of Colorado Supreme Court, and in addition, that trial counsel somehow fraudulently billed this Court for expert and investigative services and then somehow paid those funds into his trust account in order to make other payments as may have been demanded in his settlement with the Colorado Attorney Regulation office. 3. Counsel has examined the files in this case in connection with Mr. Dowell's specific document discovery requests.2 Although about four Criminal Justice Act voucher forms are in the files for viewing3, the rest of the documents which Mr. Dowell has requested are noted with inserted "green slips" which state that the document is sealed, and contained in the sealed documents area of the clerk's office. Counsel has also determined from docket sheet entries that about five of the filings Mr. Dowell has requested are not relevant, as they either pertain to other defendants in the case, or other attorneys against whom Mr. Dowell does not complain. 5. Counsel thus requests permission from the Court to view the sealed filings

2. Mr. Dowell notes 30 case filings at page 40 of his memorandum in support of his 2255 petition (Doc. 558) which he claims will support his conflict of interest allegation. He also requests those documents at page 3 of his Motion for Leave for Discovery and Production of Documents (Doc. 571, his most recent filing), although he has omitted, inadvertently it is suggested, documents numbered 236 and 345. 3. Counsel is of the understanding that CJA voucher forms are not normally public record, as well as the CJA files kept in the CJA coordinator's offices, and therefore this request asks for access to those documents where relevant, as well as the documents marked sealed. The Office of the Clerk of the Court has indicated that it agrees with this position, and that Court approval must be had for access.

Case 1:01-cr-00395-RPM

Document 575

Filed 01/11/2008

Page 3 of 4

and CJA files which Mr. Dowell has requested in order to properly investigate and represent Mr. Dowell in his claim of conflict of interest resulting in incompetency of counsel. 6. It is noted that the Court, by Order of June 14, 2007, (Doc. 552), has allowed Mr. Dowell to obtain by purchase some documents which he had requested (although the number of docket entries was considerably smaller than he now requests). It is not known whether this was done as counsel has not yet contacted Mr. Dowell, but will by copy of this motion and by telephone to the federal prison facility in Jessup, Georgia, when that can be arranged. 7. Counsel also suggests that should the Court grant this motion, that his examination of the materials take place at the Office of the Clerk of the Court under the supervision of a deputy clerk.

Dated: January 11, 2008

Respectfully submitted, s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law, PC 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Office Phone: 303-292-0110 Fax Phone: 303-292-0522 E-mail [email protected] Attorney for Defendant Jack Dowell

CERTIFICATE OF SERVICE

Case 1:01-cr-00395-RPM

Document 575

Filed 01/11/2008

Page 4 of 4

I hereby certify that on January 11, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Martha A. Paluch Assistant U.S. Attorney And by U.S. Mail to: Jack Dowell #05225-013 Federal Correctional Institution 2680 Hwy 301 South Jesup, Georgia 31599-5676 [email protected]

s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law, PC 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Office Phone: 303-292-0110 Fax Phone: 303-292-0522 E-mail [email protected]