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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LEONARD THOMAS WALKER,

vs. 3:09cv337/MCR/MD

UNITED STATES ATTORNEY,

DISTRICT OF FLORIDA

PENSACOLA DIVISION

ORDER and

REPORT AND RECOMMENDATION

This matter is before the court upon the federal defendant’s motion to strike

and to dismiss (doc. 16) and the plaintiff’s response thereto. (Doc. 22). The matter

is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After a careful review of the

record and the arguments presented, it is the opinion of the undersigned that the

motion should be GRANTED/DENIED.

Background

Plaintiff Leonard T. Walker was convicted after a jury trial in case number

3:96cr76/RV of conspiracy to possess with intent to distribute cocaine and

possession with intent to distribute cocaine on a date certain. He was sentenced to

a term of life imprisonment. His conviction and sentence were affirmed on appeal

in April of 1998. (Case 3:96cr76/RV, doc. 62). He filed a timely motion to vacate

pursuant to 28 U.S.C. § 2255 which was denied, and this denial was affirmed on
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appeal. (Case 3:96cr76/RV, doc. 70, 75 & 85). In September of 2000, he filed a

second motion to vacate pursuant to 28 U.S.C. § 2255 which was also denied and the

appeal was dismissed due to his failure to make a substantial showing of the denial

of a constitutional right. (Case 3:96cr76/RV, doc. 90, 108 & 111). In 2003, Walker

filed a petition for a writ of audita querela under 28 U.S.C. § 1651, which was also

denied, and the appeal dismissed. (Doc. 112, 113 & 136). The Eleventh Circuit

denied Walker’s application for leave to file a second or successive § 2255 motion

in July of 2005. (Case 3:96cr76/RV, doc. 138). In July of 2006, Walker filed a motion

for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(6), which, like his previous

post-conviction motions was denied and the appeal dismissed. (Case 3:96cr76/RV,

doc. 139, 141 & 163). In November of 2006, he filed a motion to compel the

production of documentary evidence and for the issuance of subpoenas seeking

information with respect to the grand jury proceedings which was denied via R&O,

as was his motion for reconsideration. (Case 3:96cr76/RV, doc. 153 & 156, 160 &

161). He appealed, and the appeal was dismissed due to his failure to pay the

$455.00 appellate filing fee. (Case 3:96cr76/RV, doc. 177). Walker moved in January

of 2008 for a writ of habeas corpus pursuant to 28 U.S.C. § 1651(A) to challenge

subject matter jurisdiction and to recuse Judge Vinson. (Case 3:96cr76/RV, doc. 178

& 179). Again, both motions were denied by the district court and he unsuccessfully

appealed the denial of the motion for writ of habeas corpus and failed to prosecute

the appeal of the motion for recusal. (Case 3:96cr76/RV, doc.180, 181, 219, 223). In

April of 2008, he filed a motion to obtain the factual record of the grand jury

proceedings which was denied in June of 2008 after response by the government.

(Case 3:96cr76/RV, doc. 213, 217 & 224). 

The Complaint

Plaintiff Walker has labeled his case as arising under Title 5 U.S.C. §

552(a)(4)(B), which governs public information, agency rules, opinions, orders,

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records and proceedings. He contends that Judge Lacey Collier, U.S. Attorney

Michael Patterson, then-assistant United States AttorneyKennethS. Korea, the Clerk

of the Court, the “Court Stenographer,” grand jury foreperson Robert W. Nance and

the Probation Officer all took place in “perpetrating a fraud” on him during his

criminal proceedings. Defendant asserts that he appeared in court on October 16,

1996 with Attorney Ted A. Stokes, and all of the above-listed individuals were

present. He claims that when court was convened the judge could not find an

indictment filed on Walker, at which point Walker told his attorney that if there was

no properly filed indictment, that he should be allowed to leave. The judge then

reportedly asked the Clerk of Courts if anyone remained in the Grand Jury room, 1

and after being informed that everyone had left, the Clerk was directed to go to the

Grand Jury room and get the indictment forms. After reviewing the forms, the judge

noted that there were no signatures on the indictment, and that there was no a place

on the indictment for a signature. He returned the form to the Clerk of Court who

indicated that she would type a place for the signature on the indictment. The judge

asked AUSA Korea if he could sign the indictment, and he stated that he could not,

but that Michael Patterson could sign it. At this time, the Clerk returned to the

courtroom with one of the grand jurors, Robert Nance. When questioned by the

court, Mr. Nance indicated that he was not the foreperson. He was nonetheless

sworn in as the foreperson, and he and Mr. Patterson signed the indictment. When

the indictment was passed back to Judge Collier, he noted that there was no

indictment number, and the Clerk of Court wrote in 3:96cr76/RV. Walker contends

that this is a fraud perpetrated against him and proceeds to argue that the

indictment was defective in several respects. (Doc. 1 at 4).

Defendant enumerates ten questions that relate to the legality or

constitutionality of the grand jury process in his case. (Doc. 1 at 5-6). He then

claims that infirmities in the grand jury proceedings resulted in violations of twelve

It appears that the individual Walker means to identify is the courtroom deputy.

1

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federal statutes and two constitutional provisions. (Doc. 1 at 6-7). Next, he asserts

that the U.S. Attorney, Assistant U.S. Attorney and the District Judge violated ethical

standards of their office in engaging in this conduct. (Doc. 1 at 7-8). In his claim for

relief, he notes his submission of a Freedom of Information Act (FOIA) request, and

requests that defendant be enjoined from withholding the records and directed to

release them within a specific period of time, that he be provided with a copy of the

court’s official docket for October 16, 1996 and records of counsel indicating his

whereabouts on that date, along with records of AUSA Korea and other individuals

pertaining to this matter. He also seeks attorney’s fees and costs and $16,000,000

in damages.

The majority of the exhibits attached to the complaint relate to defendant’s

criminal case and include copies of pleadings filed in those proceedings and a copy

of the docket sheet. Exhibit 4 to the complaint is a FOIA request dated August 26,

2008. (doc. 1, exh. 4). In this request, plaintiff states:

On October 16, 1996, I appeared with my Attorney; Mr. Ted A. Stokes,

before the Honorable Judge Lacy (sic) Collier. I need the name and

address of the court reporter/stenographer in the proceedings, re:

USCD NDFL Case no: 3:96cr76/RV

(doc. 1, exh. 4)

Plaintiff revised his request on December 19, 2008, stating as follows:

I appeared before Judge Lacy (sic) Collier on October 16, 1996 who was

sitting in for the judge who had my case. The judge who was on my

case was Judge Roger Vinson at which time he was not available, so

Judge Collier sat in for Judge Vinson. At this time, I am requesting

“Any and ALL documents from such date and time when I was before

Judge Lacy (sic) Collier.”

(Doc. 1, exh. 5)

Also included is a letter of appellate review affirming the action of the

Executive Office of the United States Attorney (EOUSA). (Doc. 1, exh. 3). The letter

indicated that EOUSA, after an adequate and reasonable search, had located no

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records responsive to Walker’s request for records pertaining to his October 16,

1996 hearing before Judge Lacey Collier. The appellate reviewer also noted that

there was no docket entry indicating that a hearing had taken place on October 16,

1996 in Walker’s criminal case, and thus the response of the EOUSA was correct. 

(Doc. 1, exh. 3). It is from this response that plaintiff appeals.

Legal Standard for Motions to Dismiss

In ruling on a motion to dismiss, plaintiff’s well-pled allegations are accepted

as true and construed in the light most favorable to him. Sinaltrainal v. Coca-Cola

Co., 578 F.3d 1252, 1260 (11 Cir. 2009); Oxford Asset Managment Ltd. v. Jaharis,

th

297 F.3d 1182, 1188 (11 Cir. 2002); Davis v. Monroe County Bd. Of Educ., 120 F.3d th

1390, 1393 (11 Cir. 1997). Nonetheless, conclusory allegations, unwarranted th

deductions of fact, or legal conclusions masquerading as facts will not insulate a

complaint from dismissal. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949, 173

L.Ed.2d 868 (2009); Oxford Asset Managment Ltd. v. Jaharis, 297 F.3d 1182, 1188

(11 Cir. 2002); Sinaltrainal v. Coca-Cola Co., 2009 WL 2431463 (11 Cir. 2009). The th th

complaint may be dismissed if the facts as pleaded do not state a claim to relief that

is plausible on its face. See Iqbal, 129 S.Ct. at 1950; Bell Atl. Corp. v. Twombly, 127

S.Ct. 1955, 1968-1969, 1974 (2007) (retiring the “unless it appears beyond doubt that

the plaintiff can prove no set of facts” standard). A complaint is also subject to

dismissal under Rule 12(b)(6) when its allegations--on their face--show that an

affirmative defense bars recovery on the claim. LeFrere v. Quezada, 582 F.3d 1260,

1263 (11 Cir. 2009); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th th

2001). 

The Defendant’s Motion to Strike and or Dismiss

The defendant observes in its motion that much of plaintiff’s complaint goes

beyond the scope of the FOIA request and he appears to be seeking review of his

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criminal conviction. To the extent that Walker seeks to litigate issues beyond the

scope of his FOIA request, these matters should be stricken. Plaintiff Walker

concurs in his response that this is appropriate. (Doc. 22 at 2-3). 

Defendant argues that plaintiff’s request for “the court’s official schedule or

calendar for October 16, 1996 or equivalent document that lists cases docketed on

that day” and “the record of the defense (Petitioner)” (doc. 1 at 9) are foreclosed

because plaintiff failed to include these requests with his initial or revised FOIA

requests. Furthermore, the Office of the United States Attorney does not have

possession of either these documents or transcripts of the proceedings held before

Judge Collier on October 16, 1996. Because these requests are beyond the scope 2

of plaintiff’s FOIA requests or impossible for the defendant to provide, they should

be dismissed.

The plaintiff also seeks “the official records that by law must be kept in

regards to the grand jury that indicted the Petitioner [including] the Foreperson,

Deputy Foreperson, anyone who replaced either foreperson and the circumstances

involved.” (Doc. 1 at 10, ¶ 7). The government argues that transcripts of grand jury

proceedings cannot be released absent a petition for a disclosure order pursuant to

Fed.R.CrimP. 6(e)(3)(F) and that plaintiff has already unsuccessfully moved “to

obtain the factual record of the proceedings of [his] indictments by the Grand Jury

in open Court before a Federal Magistrate Judge pursuant to 28 U.S.C. § 753(b)” in

his criminal case. (Case 3:96cr76/RV, doc. 213 & 224).

Plaintiff’s repeated assertion that he was at a hearing before Judge Collier on

October 16, 1996 is simply unsupported by court records. The docket sheet in

plaintiff’s criminal case reflects that the indictment and an “information sheet” were

filed on October 16, 1996. Magistrate Judge Susan M. Novotny signed an order for

issuance of an arrest warrant for Walker on that same date, but the warrant was no

The date of the proceedings to which plaintiff refers was clearly October 16, 1996, although it is

2

variously referred to in the government’s motion as December 16, 1009 and October 16, 2006 (doc. 16 at 6

and n.4)

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returned executed until November 14, 1996. (Case 3:96cr76/RV, doc. 3 & 5). 

Walker’s first appearance was held the following day, on November 15, 1996 and

Judge Novotny entered an order of temporary detention and appointed the Office of

the Federal Public Defender to represent defendant Walker. (Id., doc. 6, 7, 8). He

was arraigned on November 19, 1996 represented by attorney James E. Taylor and

ordered detained. (Id., doc. 10, 11, 14 & 15). Attorney Ted Stokes, who defendant

alleges was present with him on October 16, 1996 did not enter his notice of

appearance until December 6, 1996. (Id., doc. 17). Thus there is no record support

for plaintiff’s assertion that he appeared before Judge Collier, or any judge, on

October 16, 1996, or his suggestion that the criminal docket contains wholly

inaccurate information. Because of this, to the extent he maintains that production

of the transcripts would be appropriate under Fed.R.Crim.P. 6(e), he additionallyhas

failed to demonstrate a particularized need for the grand jury transcripts from the

date in question. For all the foregoing reasons, his case should be dismissed.

Accordingly, it is ORDERED:

In light of the foregoing, defendant’s motion to strike plaintiff’s first request

for production of documents or in the alternative for protective order (doc. 24) is

GRANTED as it is moot. 

And it is respectfully RECOMMENDED:

The defendant’s motion to strike and to dismiss (doc. 16) be GRANTED.

At Pensacola, Florida, this 1 day of March, 2010. st

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:09cv337/MCR/MD