                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JOHN DOE,                                          No. 15-99006
                    Petitioner-Appellant,

                      v.                               ORDER

 ROBERT L. AYERS, JR., Warden,
              Respondent-Appellee.


                        Filed May 27, 2015

         Before: Harry Pregerson, Stephen Reinhardt,
         and Kim McLane Wardlaw, Circuit Judges.


                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel filed an order denying petitions for rehearing
and rehearing en banc, and published the order for the
purpose of explaining why it denied the state’s petition and
rejected the state’s arguments objecting to the panel’s
decision to grant Petitioner’s request in the alternative to


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
2                         DOE V. AYERS

issue the opinion using a pseudonym rather than Petitioner’s
real name.

    The panel explained that in this exceptional case – one in
which Petitioner (1) was granted penalty-phase habeas relief
based on sealed, graphic evidence regarding repeated sexual
assault in prison, and (2) submitted credible evidence that he
would likely be subjected to more violence if his name was
revealed alongside the evidence of this abuse – the use of a
pseudonym was appropriate.


                             ORDER

    The panel has voted unanimously to deny the petitions for
rehearing and rehearing en banc. The full court has been
advised of the petitions for rehearing en banc, and no judge
has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35. The petitions for rehearing and rehearing
en banc are denied.

    We publish this order for the purpose of explaining why
we deny the state’s petition and why we reject its arguments
objecting to our decision to grant Petitioner’s request in the
alternative to issue our opinion using a pseudonym rather
than Petitioner’s real name.1

   As a preliminary matter, the state was afforded notice and
an opportunity to brief its position regarding the use of
“Doe,” a pseudonym. The procedural history is as follows.


    1
    Although the Warden is the nominal Respondent in this habeas case,
we refer throughout to the Respondent by the name of the party whose
interest is actually at stake – the state.
                            DOE V. AYERS                                3

After we reached our decision on the merits – a decision that
discusses the contents of sealed records2 – we provided a
copy of our proposed opinion to the parties, and, pursuant to
our normal practice, ordered them to show cause why the
record should not be unsealed for the limited purpose of
referring to it in the published opinion. Because Petitioner
objected, arguing that the opinion should be filed under seal,
we held a telephonic hearing at which the appropriateness of
publication under a pseudonym was raised. The state was
instructed to submit a letter brief setting forth its position as
to the matters addressed during the hearing. Shortly
thereafter, the state contacted the Clerk of Court to request
that we issue a written order delineating the topics to be
addressed, but quickly withdrew that request before such an
order could be issued. The state then filed a brief contesting
Petitioner’s request to seal our disposition, on much the same
grounds as it now objects to the use of a pseudonym, but did
not specifically address the latter point. Petitioner’s letter
brief did address that issue.

    Based on the hearing and the parties’ briefs, and after
considering the factors outlined in Does I Through XXIII v.
Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), we
concluded that Petitioner’s exceptional case met the high bar
for proceeding under a pseudonym. In light of that
determination, and our conclusion that the use of a
pseudonym would be appropriate in this case, we denied
Petitioner’s request to seal much of the critical information in
our proposed opinion, including all its references to his sexual
and emotional abuse, which formed the evidentiary basis for
the claim on which we granted him relief. We concluded,

  2
    The state did not contest the sealing of these records in the district
court or on appeal.
4                           DOE V. AYERS

given that his identity could be protected to a reasonable
extent by the use of Doe, that he had not shown sufficient
“compelling reasons” why we should deny the public access
to the grounds for our decision to invalidate his death
sentence. See Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172, 1178–80 (9th Cir. 2006). Having reviewed the
state’s petition for rehearing and rehearing en banc,
Petitioner’s response, and the state’s reply, we are convinced
that our decision was and is correct.

     When a party requests “Doe” status, the factors to be
“balance[d] . . . against the general presumption that parties’
identities are public information,” are: “(1) the severity of the
threatened harm; (2) the reasonableness of the anonymous
party’s fears; and (3) the anonymous party’s vulnerability to
such retaliation.” Advanced Textile Corp., 214 F.3d at 1068
(citing U.S. v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980)
(recognizing the risks to a long-term prison inmate and
approving the use of a pseudonym)) (other internal citations
omitted). Petitioner made a strong showing, based on the
affidavit of a highly-qualified correctional expert with
relevant experience in the California prison system, both that
(1) other inmates would learn of his past victimization if we
were to recount it in a published opinion captioned in his
proper name, and (2) this notoriety would create a significant
risk of severe harm at the hands of other inmates, a risk to
which he would be quite vulnerable.3

    3
   This risk to Petitioner was previously recognized by the district court,
when it granted his motion to seal filings in the case, and also by us, when
we granted his motion not to publish audio or a transcription of the oral
argument. Because inmates are likely to read habeas opinions issued by
this court but unlikely to encounter an unpublished district court
disposition denying relief, the need for anonymity is greater than at
previous stages of this litigation.
                         DOE V. AYERS                           5

    We explained in United States v. Stoterau that “mere
membership in a class of offenders that may be targeted by
other inmates is [in]sufficient to make a defendant’s case
extraordinary” and warrant the use of a pseudonym. 524 F.3d
988, 1013 (9th Cir. 2008) (emphasis added) (internal
quotation marks omitted). However, we were careful there to
distinguish such an inadequate, generalized showing of
susceptibility to abuse in prison from the individualized
finding – based on personal history and expert evidence –
made in United States v. Parish, 308 F.3d 1025, 1032 (9th
Cir. 2002). Here, Petitioner’s truly extreme history and the
expert evidence he offered led us to conclude that his
particular circumstances represented the “unusual case” in
which the use of a pseudonym is appropriate. United State v.
Doe, 488 F.3d 1154, 1156 n.1 (9th Cir. 2007).

    As for the state’s countervailing interests, we also
considered “the precise prejudice at [this particular] stage of
the proceedings to the opposing party.” Advanced Textile
Corp., 214 F.3d at 1068. In James v. Jacobson, 6 F.3d 233,
240–41 (4th Cir. 1993), on which we relied to illustrate this
consideration in Advanced Textile Corp., the risk that the
plaintiffs’ use of pseudonyms might prejudice the jury in their
favor or undermine efforts to impeach them was relevant to
the court’s analysis. In the instant appeal from the denial of
a habeas petition, however, unlike at a jury trial, no arbiter of
fact could be prejudiced in favor of the petitioner because it
knew him only by the name of Doe.

    The state’s petition raises two additional concerns, but
neither is valid. First, the state argues that the use of a
pseudonym in our opinion would “encumber further review.”
However, if the state elects to file a petition for certiorari, it
can comply with the rules of the Supreme Court by moving
6                        DOE V. AYERS

to file the dispositions in the district court and the state court
under seal. See Stephen M. Shapiro et al., Supreme Court
Practice ch. 16.8(c), at 867 (10th ed. 2013). Second, the state
contends that the use of a pseudonym prevents it from
complying with Marsy’s Law, Cal. Const., art. I, § 28(b)(7),
which entitles crime victims’ family members to “reasonable
notice of all public proceedings.” To the extent that our prior
order and opinion may not be clear, the state is not prohibited
from disclosing the identity of Doe to the family members of
his victim(s).

    Finally, we concluded that “the public’s interest in the
case [was not] best served by requiring that the litigants
reveal their identities,” because here, “[p]arty anonymity
[did] not [significantly] obstruct the public’s view of issues
joined or the court’s performance in resolving them.”
Advanced Textile Corp., 214 F.3d at 1068 (quoting Doe v.
Stegall, 653 F.2d 180, 185 (5th Cir. 1981)). Although the
public does not know Petitioner’s name, any reader of the
Federal Reporter may consider the evidence in aggravation
and mitigation, as outlined in detail in our opinion, and
determine for himself whether our assessment of its strength
was correct. Because the record in this case was sealed in the
district court and on appeal, knowing Petitioner’s name
would be of relatively limited added value in this regard.

    In this exceptional case – one in which Petitioner (1) was
granted penalty-phase habeas relief based on sealed, graphic
evidence regarding repeated sexual assault in prison, and
(2) submitted credible evidence that he would likely be
subjected to more violence if his name was revealed
alongside the evidence of this abuse – the use of a pseudonym
was appropriate. This deviation from our normal practice
remains the rare exception rather than the rule.
                      DOE V. AYERS                       7

    No further petitions for rehearing or rehearing en banc
will be entertained.
