                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             DEC 9 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-3190
 v.                                            D.C. No. 89-CR-10054-01-SAC
                                                        (D. Kansas)
 RICHARD RAY LACEY,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Mr. Lacey, appearing pro se and in forma pauperis, seeks to appeal the

district court’s order denying his motion for grand jury transcripts. Mr. Lacey

argues that he needs the transcripts to prepare a collateral attack on the

indictment. He claims that he is not the “Richard Ray Lacey” named in the

original indictment (instead he is “Rick Ray Lacey”), a somewhat belated theory

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
given the protracted proceedings in this case. The district court denied the

motion, and further noted that even if the grand jury transcript were unsealed, Mr.

Lacey had not made an adequate showing to obtain it. See Sistrunk v. United

States, 992 F.2d 258, 259 (10th Cir. 1993) (requiring a showing of “particularized

need” for a transcript under 28 U.S.C. § 753(f)).

      Mr. Lacey’s motion seeking grand jury transcripts is civil in nature and we

have jurisdiction over this appeal. See In re Grand Jury 95-1, 118 F.3d 1433,

1436 (10th Cir. 1997); see also United States v. Campbell, 294 F.3d 824, 826-27

(7th Cir. 2002) (per curiam); United States v. Miramontez, 995 F.2d 56, 58 (5th

Cir. 1993). Because Mr. Lacey failed to show a particularized need for the

transcripts, the district court did not abuse its substantial discretion in denying the

motion. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-23

(1979); United States v. Warren, 747 F.2d 1339, 1347 (10th Cir. 1984). After

reviewing the record in this case, it is apparent that Mr. Lacey’s claims are based

upon incorrect information, see Aplee. Br. at 7, or are entirely speculative, see

Aplt. Reply Br. at 3 (arguing that grand jury indicted based upon “record of

violence” of someone else).

      Were that not enough, Mr. Lacey’s theory is inadequate to meet the

requirements to file a second or successive petition, i.e. newly discovered

evidence. See 28 U.S.C. § 2255, ¶ 8. Mr. Lacey’s narcotics convictions were


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affirmed on direct appeal. United States v. Lacey, 86 F.3d 956 (10th Cir. 1996).

His initial § 2255 motion was denied by the district court as time-barred and this

court denied him a certificate of appealability. United States v. Lacey, 162 F.3d

1175, No. 98-3030, 1998 WL 777067 (10th Cir. Oct. 27, 1998). Thus, to obtain a

certificate of appealability for a second § 2255 motion, he would be required to

demonstrate newly discovered evidence that “would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would have found

[him] guilty of the offense.” 28 U.S.C. § 2255, ¶ 8. Given the discussion of the

evidence in his direct appeal, Lacey, 86 F.3d at 961-62, he cannot make this

showing on the theory that he was not the person named in the indictment.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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