ORDER
LARRY R. HICKS, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner represented by counsel.
On February 16, 2016, petitioner filed a motion for leave to file a third amended petition. (ECF No. 24). On the same date, petitioner filed a second amended petition and exhibits in support of the same. (ECF Nos. 12-23). In the motion for leave to file a third amended petition, petitioner's counsel states that since entering a notice of appearance on November 30, 2015, counsel diligently attempted to obtain the state record to assess the timeliness of an amended petition. Counsel determined that the statute of limitations in petitioner's case may run as soon as February 25, 2016. Counsel explained that to ensure the timeliness of petitioner's claims, a second amended petition was filed along with the motion for leave to file a third amended petition. Petitioner then sought an extension of time up to and including June 15, 2016, to file a third amended petition. (ECF No. 32). Petitioner later sought an extension of time up to and including July 14, 2016, to file a third amended petition. (ECF No. 34). Petitioner filed a third amended petition on July 14, 2016. (ECF No. 35).
Respondents originally did not oppose petitioner's motion to file a third amended petition. (ECF No. 27). Later, after petitioner filed a third amended petition, respondents filed a supplemental response on July 26, 2016, in which they oppose the filing of the third amended petition. (ECF No. 41). On August 8, 2016, respondents filed a motion for leave to file a supplemental opposition. (ECF No. 44). The motion for leave to file a supplemental opposition is granted, to the extent that this Court has considered respondents' arguments.
The Court has reviewed all of the parties' arguments for and against granting leave to amend. (ECF Nos. 24, 27, 29, 41, 43, 44, 45, 46). The Court should freely give leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). The Court agrees with petitioner that, generally, a case this complex requires several months of review, investigation, and preparation before an adequate amended petition can be filed. At the time of filing the motion for leave to file a third amended petition, petitioner's counsel had not yet had sufficient time to fully investigate the case, review the record, and research the claims. Granting counsel leave to file a third amended petition once counsel has had an adequate opportunity to review the entire record and plead the claims in full serves the interests of justice. The Court rejects respondents' arguments to deny leave to amend. Specifically and most importantly, the Court rejects respondents' supposition that one or more claims within the third amended petition are unexhausted and therefore futile. This Court has not yet had occasion to rule on whether any claims in the third amended petition are unexhausted. Moreover, even if some claims are unexhausted, this does not make them futile. The Court will also need to rule on whether a stay and abeyance is warranted. These questions are better answered once there is a response to the third amended petition and briefing on that response is complete. Petitioner's motion for leave to file a third amended petition is granted in the interests of justice.
Petitioner has filed a motion to waive the portion of Local Rule IA 10-3(e) that requires the cover page of each exhibit to include a description of the exhibit. (ECF No. 39). Local Rule IA 1-4 permits the Court to waive any of the Local Rules if the interests of justice so require. Petitioner argues that adding descriptors to the cover page of each exhibit is unduly burdensome given the large number of exhibits filed in this case, and given the limited resources of the Office of the Federal Public Defender. Petitioner has filed an index of exhibits to the amended petitions and each exhibit includes a cover sheet referencing the exhibit by number. The Court finds that the interests of justice are best served by partially waiving Local Rule IA 10-3(e), so that the cover page of each exhibit need not include a description of the exhibit.
On July 14, 2016, petitioner filed a motion to seal certain exhibits to the third amended petition. (ECF No. 38). The motion itself was filed under seal, therefore, the next day, petitioner filed an amended motion to seal exhibits, which was not filed under seal and contained the same arguments expressed in the earlier motion. (ECF No. 40). Petitioner seeks permission to file exhibits 142-146 under seal because the exhibits contain confidential information. These exhibits were submitted under seal for in camera review. (ECF No. 38, 1-8).
While public access to judicial filings and documents is favored, see Nixon v. Warner Communication, Inc., 435 U.S. 589, 597 (1978), a party may have a judicial record sealed by demonstrating "compelling reasons" that outweigh the public policy favoring disclosure, including that the records may be used improperly, see Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Exhibits 142 and 146 contain petitioner's confidential medical information. Exhibits 143-45 were sealed in the state court and were only released by the state courts with the provision that they would remain confidential. The potential harm to petitioner's interests outweighs the public's right to access Exhibits 142-146. Petitioner has made an adequate showing of compelling reasons to keep Exhibits 142-146 sealed. The Court therefore grants petitioners motions to keep Exhibits 142-146 filed under seal.
Respondents seek an order granting a 45-day enlargement of time, from the date the Court decides petitioner's motion to file a third amended petition, in which to file and serve their response to such petition. (ECF No. 31). Good cause appearing, respondents' motion for an extension of time is granted.
IT IS THEREFORE ORDERED that respondents' motion for leave to file a supplemental opposition (ECF No. 44) is GRANTED.
IT IS FURTHER ORDERED petitioner's motions for extensions of time to file a third amended petition (ECF Nos. 32 & 34) are GRANTED.
IT IS FURTHER ORDERED petitioner's motion for leave to file a third amended petition (ECF No. 24) is GRANTED.
IT IS FURTHER ORDERED that petitioner's motion to partially waive Local Rule IA 10-3(e) (ECF No. 39) is GRANTED.
IT IS FURTHER ORDERED that petitioner's motions to seal (ECF Nos. 38 & 40) Exhibits 142-146 are GRANTED. The Clerk of Court shall keep Exhibits 142-146 (ECF No. 38, 1-8) filed under seal.
IT IS FURTHER ORDERED that respondents' motion for an extension of time (ECF No. 31) in which to file a response to the third amended petition is GRANTED. Within 45 days from the date of service of this order, respondents SHALL FILE a response to the third amended petition.
IT IS FURTHER ORDERED that if and when respondents file an answer, petitioner shall have forty-five (45) days after service of the answer to file and serve a reply.
