                                                          [DO NOT PUBLISH]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



                                           3
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,



                                           4
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.

                                             5
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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