[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
.U .S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12521
DECEMBER 21, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-61976-CV-JIC
LAVON LAMAR HEATH,
Plaintiff-Appellant,
versus
ASST. U.S. ATTORNEY,
ASST. STATE ATTORNEY,
STATE ATTORNEY'S OFFICE, 15th
Judicial Circuit,
U.S. ATTORNEY'S OFFICE,
Southern District of Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2006)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Lavon Lamar Heath, proceeding pro se, appeals the dismissal of his
complaint, filed under 42 U.S.C. § 1983, which the district court construed as a
petition for writ of mandamus under 28 U.S.C. § 1361, for lack of subject-matter
jurisdiction under 28 U.S.C. § 1361. Heath is currently serving a federal sentence
based on convictions stemming from his involvement in a drug distribution
operation. We set out the facts underlying his convictions in our resolution of
Heath and other co-defendants’ direct appeal, United States v. Glinton, 154 F.3d
1245 (11th Cir. 1998). Heath filed this complaint seeking disclosure of the dates
on which the state court sealed the wiretap recordings, the contents of which were
used at his criminal trial, in order to determine whether they were sealed
“immediately” pursuant to 18 U.S.C. § 2518(8)(a). On appeal, Heath challenges
that district court’s finding that the federal defendants did not have a clear duty
under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to
provide the requested information.1 For the reasons set forth more fully below, we
affirm.
We review the district court’s determination of whether it has mandamus
1
Heath does not challenge the district court’s finding that it could not grant mandamus
relief against the state defendants. He has therefore abandoned this issue. See Rowe v.
Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
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jurisdiction de novo. See Lifestar Ambulance Service, Inc. v. United States, 365
F.3d 1293, 1295 (11th Cir. 2004), cert. denied, 543 U.S. 1050 (2005).
“The test for jurisdiction is whether mandamus would be an
appropriate means of relief.” Jones v. Alexander, 609 F.2d 778, 781
(5th Cir.1980). Mandamus relief is only appropriate when: (1) the
plaintiff has a clear right to the relief requested; (2) the defendant has
a clear duty to act; and (3) “no other adequate remedy [is] available.”
Id. Put another way, a writ of mandamus “is intended to provide a
remedy for a plaintiff only if he has exhausted all other avenues of
relief and only if the defendant owes him a clear nondiscretionary
duty.” Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80
L.Ed.2d 622 (1984). “In resolving whether section 1361 jurisdiction
is present, allegations of the complaint, unless patently frivolous, are
taken as true to avoid tackling the merits under the ruse of assessing
jurisdiction.” Jones, 609 F.2d at 781.
Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (alteration in original).
Section 2518(8)(a) requires that, “[i]mmediately upon the expiration of the
period of the order [authorizing or approving the interception of wire, oral, or
electronic communications], or extensions thereof, such recordings shall be made
available to the judge issuing such order and sealed under his directions.” 18
U.S.C. § 2518(8)(a). The statute further requires, as a prerequisite to testimony
concerning the content of the intercepted communications or evidence derived
therefrom,“[t]he presence of the seal provided for by this subsection, or a
satisfactory explanation for the absence thereof . . . .” Id. (cross-referencing 18
U.S.C.A. § 2517(3)). A recording is sealed in accordance with the immediacy
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requirement of § 2518(8)(a) if it is sealed within one or two days of the expiration
of the period of the order. United States v. Matthews, 431 F.3d 1296, 1307 (11th
Cir. 2005), cert. denied, 127 S.Ct. 46 (2006). To the extent that Heath asserts an
independent duty of disclosure under § 2518(8)(a), we hold that, under the terms of
the statute, Heath does not have a clear right to the information and the government
does not have a clear duty to disclose that information to Heath.
Under Brady, “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either
to guilt or to punishment.” Grossman v. McDonough, 466 F.3d 1325, 1341 (11th
Cir. 2006) (quoting Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97) (quotation marks
omitted). The prosecutor’s duty applies even where there has been no request by
the accused and extends to impeachment evidence as well as exculpatory evidence.
Grossman, 466 F.3d at 1341. “Evidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Id. at 1341-42 (quoting United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). In
other words, “the materiality standard for Brady claims is met when ‘the favorable
evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.’” Banks v. Dretke, 540 U.S. 668, 698,
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124 S.Ct. 1256, 1276, 157 L.Ed.2d 1166 (2004) (citation omitted).
For the purposes of this appeal, we assume, without deciding, that the
prosecutor’s duty under Brady requires disclosure of material exculpatory
information after completion of an initial habeas corpus proceeding and that
information relevant only to suppression of evidence on legal grounds comes
within the scope of Brady. However, Heath cannot show a clear duty under Brady
in his case. In a case considering the denial of a post-trial motion for discovery we
stated:
The rule regarding exculpatory evidence announced in Brady
applies after trial when it is discovered that the prosecution had
material information of which the defense was unaware. United States
v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In
United States v. Quinn, 123 F.3d 1415 (11th Cir.1997), we held that
the government was not required to disclose the contents of personnel
files or submit them for in camera review simply based on the
defendant’s unsupported contention that they might contain
information of significance to his case. Id. at 1421-22. We declined
to order discovery based upon mere speculation as to whether the
material would contain exculpatory evidence because to do so would
“convert Brady into a discovery device and impose an undue burden
upon the district court.” Id. at 1422 (quotation marks and citation
omitted).
United States v. Arias-Izquierdo, 449 F.3d 1168, 1189 (11th Cir.), cert. denied, 127
S.Ct. 521 (2006) and pet. for cert. filed, (U.S. Nov. 13, 2006) (No. 06-7829).
Heath, by his own admission, is merely speculating as to whether the
requested information will show that the recordings were not sealed immediately.
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As a result, we hold that the government does not have a clear duty to act, pursuant
to Brady, which would permit the grant of mandamus relief.
In light of the foregoing, the district court’s dismissal of Heath’s complaint
is AFFIRMED.
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