       CLD-298                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 12-4631
                                        ___________

                            UNITED STATES OF AMERICA

                                              v.

                             OMARI HOWARD PATTON
                                    A/K/A “O”,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                         (D.C. Criminal No. 2:02-cr-00093-001)
                     District Judge: Honorable Donetta W. Ambrose
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 27, 2013
             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                               (Opinion filed: July 17, 2013)
                                        _________

                                         OPINION
                                         _________

PER CURIAM

       Before the Court is the Government’s “Motion for Summary Action,” which asks

us to dismiss this appeal for lack of jurisdiction or, in the alternative, to summarily affirm

the judgment of the District Court pursuant to 3d Circuit L.A.R. 27.4 and I.O.P. 10.6.
For the following reasons, we will grant the Government’s motion in part and summarily

affirm.

          Omari Howard Patton was convicted of several drug-related offenses. We

affirmed his conviction and sentence on direct appeal. See generally United States v.

Patton, 292 F. App’x 159 (3d Cir. 2008) (nonprecedential). In 2010, Patton filed a 28

U.S.C. § 2255 motion to vacate his conviction and sentence, alleging a violation of his

Sixth Amendment rights to both a fair and public trial and to the effective assistance of

counsel. The District Court denied relief, and after granting a partial certificate of

appealability (COA), we affirmed the District Court’s judgment. See generally United

States v. Patton, 502 F. App’x 139 (3d Cir. 2012) (nonprecedential).

          In November 2012, Patton moved in the District Court to “unseal Miscellaneous

Docket #01-679 A through F.” The motion and its attachments reflected Patton’s alleged

inability to obtain that material through the Freedom of Information Act (FOIA).

However, Patton did not explain why he needed the documents. In its response, the

Government represented that “these dockets contain[ed] the written filings pertaining to

six iterations of a wiretap,” which were required to be sealed under 18 U.S.C.

§ 2518(8)(b). According to the Government, Patton had “already received the contents of

these miscellaneous dockets, as they were disclosed to him in the course of the [criminal]

case’s litigation.”

          The District Court denied Patton’s request, observing that he had “no pending case

relevant to the requested docket entries” and that the materials had already been disclosed

“prior to his trial.” Patton moved for reconsideration, and suggested that he had “other

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post conviction remedies that ha[d] not been exhausted” to which the “docket entries

[we]re relevant.” The District Court denied reconsideration, too. Patton appealed.

       The Government asks us to dismiss the appeal for lack of jurisdiction or, in the

alternative, to summarily affirm. Relying in part on our nonprecedential opinion in

United States v. Mabry, 417 F. App’x 168 (3d Cir. 2011) (per curiam), the Government

argues that “the [motion to unseal] whose denial is under appeal should be seen for what

it is: a successive 28 U.S.C. §2255 petition [sic].” 1 Appellee’s Mot. for Summary Action

¶ 18. The Government further indicates that Patton’s opening appellate brief (filed before

the Government’s motion stayed the briefing schedule) contains argumentation that

would appear to relate to a collateral attack on his conviction and sentence, although the

Government concedes elsewhere that the brief transcends boundaries of his original

motion to unseal. In sum, the Government contends that the District Court properly

dismissed a second or successive § 2255 motion because it lacked jurisdiction to consider

it, and because reasonable jurists would not dispute this outcome, we are required to deny

a COA and dismiss this appeal. See Appellee’s Mot. for Summary Action ¶ 20 (citing, in

part, Mabry, 417 F. App’x at 490).

       We disagree with the Government’s jurisdictional reasoning. First and foremost,

Mabry is a nonprecedential decision that does not bind the Court. See Garcia v. Att’y

Gen., 553 F.3d 724, 728 n.5 (3d Cir. 2009). But it is also distinguishable. In Mabry, a

purported “18 U.S.C. § 3582(c)(2)” motion was, in reality, an unauthorized second or

1
 See United States v. Thomas, 713 F.3d 165, 172 n.10 (3d Cir. 2013) (discussing the
nomenclature of § 2254 “petitions” and § 2255 “motions”).


                                              3
successive § 2255 motion because it attacked the underlying conviction and sentence as

violating the Constitution instead of referencing relief available under § 3582(c)(2). See

Mabry, 417 F. App’x at 170. By contrast, this motion to unseal, while possibly presaging

such an unauthorized filing, appears to be a simple post-judgment document request, and

not necessarily a disguised collateral attack. Cf. United States v. Miramontez, 995 F.2d

56, 57–58 (5th Cir. 1993) (discussing post-judgment, post-collateral-attack appeal of

request for grand-jury transcripts). True, Patton’s filings in this Court can be construed to

suggest that he now wishes to challenge his conviction, and may have viewed his motion

to unseal as the first step in such a process. But based on what was before the District

Court, we conclude that Patton’s motion was not an unauthorized collateral attack barred

by 28 U.S.C. §§ 2244(b) and 2255(h). We therefore deny that portion of the

Government’s motion, and exercise our jurisdiction pursuant to 28 U.S.C. § 1291 to

review the District Court’s decisions for abuse of discretion. See Lazaridis v. Wehmer,

591 F.3d 666, 669 (3d Cir. 2010); cf. United States v. McDougal, 559 F.3d 837, 840 (8th

Cir. 2009); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 n.4

(3d Cir. 1991).

       We find no such abuse of discretion. Patton did not clearly explain his need for

the materials, had no relevant action pending at the time of filing, and may already have

been provided the documents he sought. He also could not bring an independent FOIA

suit on the docket of his criminal case. Cf. Martinez v. Bureau of Prisons, 444 F.3d 620,

623 (D.C. Cir. 2006) (discussing proper defendants in a FOIA suit); see also Roth v. U.S.

Dep’t of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011) (explaining that FOIA is “not a

                                             4
substitute for discovery in criminal cases”). Patton has not otherwise identified a mistake

of law in the District Court’s decision. See Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10

(1st Cir. 1998). Because there is no substantial question presented by this appeal, we will

grant the Government’s motion in part and summarily affirm the District Court’s

judgment. See Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam).




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