United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
John Patrick Newton's (“Newton's”) May
31, 2017 pro se motion to unseal grand jury transcripts is
to a plea agreement, Newton pleaded guilty to (1) conspiracy
to distribute a controlled substance, (2) maintaining a
drug-involved premises, (3) possession of a controlled
substance with intent to distribute, and (4) a money
laundering conspiracy, and was sentenced to a total of 292
months' imprisonment and an eight-year term of supervised
release. The United States Court of Appeals for the Fifth
Circuit affirmed the conviction. United States v. Newton, 463
Fed.Appx. 462 (5th Cir. 2012). And Newton unsuccessfully
sought collateral relief under 28 U.S.C. § 2255. Newton
v. United States, 2014 WL 1294873 (N. D. Tex. Mar. 31, 2014)
(Fitzwater, C.J), certificate of appealability denied, No.
14-10603 (5th Cir. Mar. 4, 2015) (per Clement, J.), cert.
denied, No. 16-8480 (Apr. 24, 2017). Newton now seeks to
unseal the grand jury transcripts in an effort to seek
further post-conviction relief.
Crim. P. 6(e) prohibits disclosure of grand jury materials
except in limited circumstances. A party seeking disclosure
must “show that ‘a particularized need'
exists for the materials that outweighs the policy of
secrecy.” United States v. Miramontez, 995 F.2d 56, 59
(5th Cir. 1993). To carry this burden, a defendant must show
that the material is needed to avoid a possible injustice in
another judicial proceeding, that the need for disclosure is
greater than the need for continued secrecy, and that his
request is limited to cover only the material necessary. Id.
has not met his burden of demonstrating a particularized
need. He does not raise any specific allegation of
irregularity as to the superseding indictment, apart from
arguing that “[t]he original indictment was not the
product of a grand jury, but rather that of the
Government.” D. Mot. 5. He asserts that “[t]he
Government stepped into the shoes of the foreman and forged
his signature” on the original indictment, which he
maintains was subsequently used to obtain the superseding
indictment. Id. By pleading guilty to the original
indictment, however, Newton waived all nonjurisdictional
defects that occurred during the grand jury proceedings, see
Miramontez, 995 F.2d at 60, and this court concluded in
denying Newton's § 2255 motion that any
jurisdictional challenge failed on the merits, Newton, 2014
WL 1294873, at *2.
Newton cannot establish that the grand jury transcript is
necessary to avoid injustice in another judicial proceeding.
He merely asserts that he is “pursuing all available
remedies for post-conviction relief.” D. Mot. 3. But he
unsuccessfully sought § 2255 relief and has not been
granted leave to file a successive § 2255 motion. Thus
his request amounts to nothing more than a “fishing
expedition” to uncover materials that may support a
potential future, successive § 2255 motion. See United
States v. Carvajal, 989 F.2d 170, 170 (5th Cir. 1993)
(holding that defendant cannot “conduct a fishing
expedition to see if he can find something in the grand jury
minutes that might support further relief under §
2255.”); In re McDermott & Co., 622 F.2d 166, 172
(5th Cir. 1980) (stating that party cannot obtain grand jury
transcripts for use in potential future judicial proceeding).
Accordingly, Newton's motion to unseal grand jury
transcripts is denied.
court prospectively certifies that any appeal from this order
would not be taken in good faith. See 28 U.S.C. §
1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this
finding, the court adopts and incorporates the reasons set
above, see Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir.
1997), and finds that any appeal of this order would present
no legal point of arguable merit and would, therefore, be
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
If Newton appeals this decision, he may challenge this
certification by filing a separate motion to proceed in forma
pauperis on appeal with the Clerk of the Court, United States
Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d
at 202; Fed. R. App. P. 24(a)(5).
clerk is directed to open for statistical purposes a new
civil action (nature of suit 550 directly assigned to the
same District Judge and Magistrate Judge as in the criminal
case), and to close the same on the basis of this order. See
Miramontez, 995 F.2d at 58 (holding that defendant's
request for grand jury transcripts, which followed affirmance
of his conviction on direct appeal and ...