Second Circuit Criminal Law Blog

Habeas Petitioner Not Permitted to Proceed Anonymously

In United States v. Pilcher, the Second Circuit (Leval, Cabranes, Sack) (per curiam) considered whether a habeas petitioner could proceed anonymously—in this instance holding that he could not (as the case’s caption makes clear).

John Pilchner was convicted of possessing child pornography after pleading guilty in open court.  Even though his conviction was public, when he filed a § 2255 habeas petition challenging certain conditions of his supervised release, he requested that his identity be kept secret.  He contended that if his petition were made public, his marriage would be destroyed and he and his children would face harassment.  The magistrate judge assigned to the case denied his request, applying the test set forth in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008).  Under that test, there is a presumption against anonymity and a court may consider a number of factors in deciding whether a party may keep its identity secret.  Examples of the relevant factors are: whether the party’s identity is already public, the sensitivity of the matter, the risk of retaliation against the party, and the public’s interest in the litigation.  The magistrate judge who heard the case determined that Pilcher’s status as a sex offender was already public, found the risk of retaliation to be speculative, and deemed his concerns about his marriage “purely personal” and insufficient to overcome the presumption against anonymity.

On appeal, the Court found the magistrate judge had not abused his discretion in denying Pilchner’s request.  Noting that the “people have a right to know who is using their courts,” the panel was similarly unconvinced by Pilcher’s arguments. 

This ruling is part of a trend against so-called, “secret litigation” and towards openness of judicial proceedings.  Even though Pilchner’s petition related to a sensitive issue of his child pornography conviction, he did not present adequate grounds to overcome the public’s interest in open proceedings.  Pilcher will have to litigate publicly if he wishes to seek habeas relief from the federal courts (and indeed his efforts to litigate the secrecy issue have caused the very result he sought to avoid). 

-By George B. Fleming and Harry Sandick