United States District Court, M.D. Georgia, Valdosta Division
ROBERT L. KIER, JR., Petitioner,
UNITED STATES OF AMERCIA, Respondent.
LAWSON, SENIOR JUDGE.
the Court is Petitioner Robert L. Kier, Jr.'s Motion to
Obtain Production or Disclosure of Material or Information.
(Doc. 199). For the following reasons, Petitioner's
motion is DENIED.
October 23, 2012, Petitioner pled guilty pursuant to a plea
agreement to two counts of a four-count indictment: Count
Two, Possession of Stolen Firearms; Count Three, Possession
of Stolen Goods. (Doc. 65). The Court sentenced Defendant to
a total term of imprisonment of 168 months, to be followed by
six years supervised release. (Doc. 108). Petitioner waived
his right to appeal his conviction. (Doc. 105).
filed his first motion to vacate pursuant to 28 U.S.C. §
2255 on February 4, 2014. (Doc. 124). After holding an
evidentiary hearing, the Court denied Petitioner's §
2255 motion. (Doc. 182). Petitioner appealed the denial. The
Eleventh Circuit Court of Appeals then denied Petitioner a
certificate of appealability. (Doc. 189). Petitioner filed
his second § 2255 motion on June 25, 2018 (Doc. 196),
which the Court denied as an unauthorized second or
successive motion to vacate. (Doc. 196). The Eleventh Circuit
subsequently denied Petitioner's application for leave to
file a second or successive motion to vacate. (Doc. 198).
has now filed the present motion, asking the Court to order
the Government to produce any statements or reports utilized
in the prosecution of his case. Petitioner represents that
these materials are needed as exhibits to his pending second
or successive § 2255 motion. Petitioner cites to a
variety of rules and regulations under which he pursues these
documents, none of which authorize the relief he
extent that Petitioner seeks documents that properly fall
under the tenets of Brady v. Maryland, 373 U.S. 83
(1963), Petitioner's request is procedurally improper.
Under Brady, “due process requires a
prosecutor to disclose material exculpatory evidence to the
defendant before trial, ” but there is “nothing
in our precedents suggest[ing] that this disclosure
obligation continue[s] after” a defendant is convicted
and the case closed. District Attorney's Office for
the Third Judicial Dist. v. Osborne, 557 U.S. 52, 68
(2009). The Eleventh Circuit has explained that 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.
Arias-Izquierdo, 449F.3d 1168, 1189 (11th Cir. 2006)
(citing United States v. Agurs, 427 U.S. 97, 103
(1976)). However, the Eleventh Circuit has declined to order
discovery where, as here, the request is “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.
(quotation marks and citation omitted).
motion requests disclosure of the following:
(1) the “criminal complaint filed by federal
(2) “all statements and reports from the Government
made by their witnesses in this case;” and
(3) “all exculpatory evidence that was used by the
Government that was alleged to be used to prove he in fact
committed the crimes listed in the counts of his
(Doc. 199, p. 4). In short, Petitioner's motion is a
fishing expedition to unearth information he hopes may prove
to be exculpatory. While he presents his request under the
cloak of Brady, what he is seeking is speculative
post-conviction discovery without a proper procedural basis.
also cites to 18 U.S.C. § 3500, also known as the Jencks
Act. Petitioner's reliance on the Jencks Act is similarly
misplaced. The purpose of the Jencks Act is to establish a
process by which a defendant may demand production of witness
statements to impeach government witnesses during
cross-examination at trial. See United States v.
Williams, 180 Fed.Appx. 108, 109 n.2 (11th Cir. 2006)
(citing United States v. Prieto, 505 F.2d 8, 11 (5th
Cir. 1974)). As Petitioner purports to seek the requested
materials in pursuit of post-conviction relief, this rule is
in general, grand jury proceedings are secret, and
transcripts of the proceedings may only be released under
limited circumstances. See Fed. R. Crim P.
6(e)(3)(E)(i); United States v. Aisenberg, 358 F.3d
1327, 1346 (11th Cir. 2004). “A party seeking grand
jury transcripts bears the burden of showing that (1) the
material sought is needed to avoid a possible injustice in
another judicial proceeding; (2) the need for disclosure
outweighs the need for continued secrecy; and (3) the request
is structed to embrace only necessary material.”
Williams, 180 Fed.Appx. at 109 (citing Douglas
Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211
(1979); United Kingdom v. United States, 238 F.3d
1312, 1320-21 (11th Cir. 2001)). A party seeking grand jury
material must demonstrate a “particularized need”
and may not rely on generalized allegations. United
States v. Burke, 856 F.2d 1492, 1496 (11th Cir. 1988).
Court need only address the first requirement. Petitioner
states in his motion that he is awaiting authorization from
the Eleventh Circuit to file a second or successive §
2255 motion. That request has since been denied. (Doc. 200).
Petitioner, therefore, has failed to establish that the