# 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

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

ANTWON D. JENKINS,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of

Illinois.

No. 12

‐ cr

‐ 30239

David R. Herndon,

J udge

.

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). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 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 aNo. 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.