Judges: Per Curiam
Filed: Feb. 01, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted January 4, 2019* Decided February 1, 2019 Before KENNETH F. RIPPLE, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 19-1022 Appeal from the United States District Court for the Southern District of UNITED STATES OF AMERICA, Illinois. Plaintiff-Appellee, No. 12-cr-30239 v. David R. Herndo
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted January 4, 2019* Decided February 1, 2019 Before KENNETH F. RIPPLE, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 19-1022 Appeal from the United States District Court for the Southern District of UNITED STATES OF AMERICA, Illinois. Plaintiff-Appellee, No. 12-cr-30239 v. David R. Herndon..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 4, 2019*
Decided February 1, 2019
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 19‐1022 Appeal from the United States District
Court for the Southern District of
UNITED STATES OF AMERICA, Illinois.
Plaintiff‐Appellee,
No. 12‐cr‐30239
v.
David R. Herndon,
ANTWON D. JENKINS, Judge.
Defendant‐Appellant.
O R D E R
On February 24, 2017, we vacated Antwon Jenkins’s conviction under 18 U.S.C.
§ 924(c)(1)(A)(ii) for using or carrying a firearm to commit a federal crime of violence. In
so ruling, we relied upon United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016),
where we held that § 924(c)(3)(B) is unconstitutionally vague.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the record. See Fed. R. App. P. 34(a)(2).
No. 19‐1022 Page 2
On May 14, 2018, the Supreme Court vacated our judgment and remanded for
further consideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, a
divided Court held that 18 U.S.C. § 16(b)—which increases the maximum sentence for a
defendant convicted of illegally reentering the United States if convicted of an
“aggravated felony” prior to removal—was unconstitutionally vague. The district court
has stayed the resentencing proceedings while Jenkins’s direct appeal pends.
On November 13, 2018, Jenkins moved to obtain copies of the grand jury
transcripts in his case. Thirteen days later, he filed a motion requesting copies of several
motions and briefs filed during his prosecution. In both motions, Jenkins explained that
he requires the documents because he intends to file a petition for habeas relief under
28 U.S.C. § 2255 (notwithstanding the fact that his direct appeal is ongoing). The district
court denied both motions. Jenkins promptly appealed. After review, we conclude that
this appeal is successive to Jenkins’s appeal in No. 14‐2898.
We begin with Jenkins’s request for copies of motions his attorney filed during
the prosecution and related briefing. The district court denied the requests for three
reasons. First, Jenkins failed to show that he exhausted alternative means of obtaining
the documents (from his trial or appellate counsel, for instance). Second, Jenkins had
not demonstrated his financial inability to obtain the documents through the normal
course. Third, the district court found that a “defendant must first file a 28 U.S.C. § 2255
petition in order to obtain documents.”
The last finding was erroneous: our case law clearly establishes that a petitioner
may seek and obtain court records in anticipation of filing a § 2255 petition. See Rush v.
United States, 559 F.2d 455, 458 (7th Cir. 1977) (finding that indigent petitioners who lack
other avenues of access possess “an absolute personal right to reasonable access to the
pre‐existing files and records of their underlying case” at public expense). But the
district court’s alternative bases for denying the motion were permissible. In U.S. ex rel.
Davidson v. Wilkinson, we approvingly noted that the district court required the
defendant to “exhaust his private sources of access to transcripts and records” and
further mentioned the relevance of “financial resources.” 618 F.2d 1215, 1218 & nn.3–4
(7th Cir. 1980). Jenkins is presently represented by counsel; he should direct his request
to them.
Jenkins has also requested transcripts of the grand jury testimony of certain
witnesses. Under Federal Rule of Criminal Procedure 6(e)(3)(E)(i), the district court may
authorize disclosure of grand jury documents “preliminary to or in connection with a
No. 19‐1022 Page 3
judicial proceeding.” That rule allows for “motions for disclosure of grand jury matters
after the conclusion of criminal proceedings.” United States v. Campbell, 294 F.3d 824, 827
(7th Cir. 2002). But disclosure in that scenario is “available only where the material is
related directly to identifiable litigation, pending or anticipated, and the party
requesting the information demonstrates a compelling need for the material.” Id.
Jenkins contends that he needs the grand jury transcripts to prepare his a § 2255
habeas petition. But he fails to show a compelling need for the transcripts for two
reasons. First, Jenkins’s direct appeal is still pending, and so any petition under § 2255
would be premature. See United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)
(“[A]bsent extraordinary circumstances, the district court should not consider § 2255
motions while a direct appeal is pending.”). Second, Jenkins has not explained why he
needs the grand jury transcripts to prepare the initial § 2255 petition. As evidenced by
his fifteen‐page motion requesting the transcripts, he is already fully capable of
articulating his theory of error (which appears to involve a violation of the compelled‐
testimony doctrine established in Kastigar v. United States, 406 U.S. 441 (1972)). After
filing his petition, Jenkins will be better able to demonstrate the need for the transcripts,
and the district court will be better positioned to review their materiality. The district
court properly denied his motion.
We AFFIRM the district court’s denial of Jenkins’s motions for court records and
grand jury transcripts.