U.S. ex rel. Davidson v. Wilkinson

• Decision Date: 13 March 1980
• Docket Number: No. 78-2546,78-2546
• Citation: U.S. ex rel. Davidson v. Wilkinson, 618 F.2d 1215 (7th Cir. 1980)
• Parties: UNITED STATES of America ex rel. William Douglas DAVIDSON, Petitioner-Appellant, v. George WILKINSON, Warden et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1215

618 F.2d 1215

UNITED STATES of America ex rel. William Douglas DAVIDSONPetitioner-Appellant, v.George WILKINSON, Warden et al., Respondents-Appellees.

No. 78-2546.

United States Court of Appeals Seventh Circuit.

Submitted March 13, 1980. ^*

Decided March 21, 1980. ^**

Charles R. Purcell, Loyola University, School of Law, Ilene F. Goldstein, Law Student, Chicago, Ill., for petitioner-appellant.

David T. Ready, Asst. U. S. Atty., South Bend, Ind., Richard A. Hanning, Asst. U. S. Atty., Hammond, Ind., for respondents-appellees.

Before SWYGERT, SPRECHER and TONE, Circuit Judges.

PER CURIAM.

In 1975, the petitioner, William Douglas Davidson, was found guilty of conspiracy to violate federal narcotics laws in a jury trial in the federal district court for the Northern District of Indiana.This court affirmed his conviction.United States v. Harris, 542 F.2d 1283(7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779(1977).In 1977, the petitioner, by then a resident of the federal prison at Marion, Illinois, applied to the district court for permission to review the record and transcript for the purpose of preparing a 28 U.S.C. § 2255 motion attacking the legality of his conviction.On consideration of the petitioner's motion, the district court held that the petitioner had to satisfy several preliminary requirements before the court would send him the requested court records.Pending some indication of the petitioner's compliance with these requirements, the trial court held the matter in abeyance.United States v. Davidson, 438 F.Supp. 1253(N.D.Ind.1977).The petitioner apparently fulfilled the requirements and on December 19, 1977, Judge Sharp entered an order directing that the record and transcript be sent to the warden of the federal penitentiary and kept by him for 30 days.The order directed the warden to make the documents available to the petitioner"only under the direct supervision of an official of the prison and at such times, places and circumstances as the Warden shall deem necessary to insure that the record and transcript shall remain intact without alteration, destruction or other change."¹

The petitioner, discontent with the restrictions placed on his access to the court records and the periods of time granted to review them, filed two notices of appeal from the district court's order.This court in an unpublished order dismissed the appeals for want of appellate jurisdiction.United States v. William Douglas Davidson, Nos. 78-1090, 78-1091(7th Cir.April 20, 1978).Although our order does not provide a reason for the conclusion that jurisdiction to review the district court's order was lacking, it is apparent that we accepted the reasoning of the U. S. Attorney that the district court's order was not a "final decision" within the meaning of 28 U.S.C. § 1291.

In the meantime, the warden of the Marion prison permitted the petitioner to review the court documents for certain periods of time each day under the supervision of prison employees.A log kept by one of those employees indicates that the petitioner consulted the record for a total of forty-nine hours between January 5, 1978, and February 7, 1978.Toward the end of this period, the petitioner initiated suit in the United States District Court for the Eastern District of Illinois, seeking to restrain the prison warden from returning the records to the Northern District of Indiana.Judge Foreman of the Eastern District dismissed the petitioner's suit and the petitioner sought to review his action by way of a petition for a writ of mandamus in this court.This court, in another unpublished order, found no abuse of discretion and refused to issue the writ.United States ex rel. William Douglas Davidson v. George Wilkinson, Warden et al., Misc.No. 78-8077(7th Cir.May 24, 1978).

Notwithstanding the petitioner's prior unsuccessful attempts to obtain review of the district court's rulings, he continued to seek redress in this court by way of numerous letters, motions, and other filings.In an order dated July 7, 1978, we suggested that the petitioner apply to Judge Sharp for additional time to review the record of the proceedings leading to his conviction.The petitioner did so.The district court in an order entered on November 15, 1978, found that the petitioner"had ample time in which to examine his transcript" and therefore denied the request for an extension.From that order, the plaintiff filed a timely notice of appeal.Petitioner was granted leave to proceed in forma pauperis and counsel was appointed to represent him on appeal.The petitioner's counsel urges that the district court's denial of his motion for additional time violated his right to meaningful access to the courts.The government responds by urging that this court lacks appellate jurisdiction and by arguing that the petitioner has failed to satisfy the prerequisites to obtaining court records.

An understanding of the contentions of the parties as to the appealability question and the merits starts with our decision in Rush v. United States, 559 F.2d 455(7th Cir.1977).In Rushthe petitioners had been convicted of various federal crimes in the United States District Court for the Eastern District of Illinois.After direct appeals proved unavailing, they moved that the district court permit them to review the record generated in their trial for the purpose of eventually filing motions attacking their convictions pursuant to 28 U.S.C. § 2255.The district court, construing the motion as one under § 2255, dismissed it, and the petitioners appealed.

We vacated the district court's order and remanded for further proceedings with directions.Our opinion indicates that jurisdiction was invoked under 28 U.S.C. § 2253. 559 F.2d at 457.We held that the district court erred in construing the motion as made under § 2255, because the motion did not seek to "vacate, set aside or correct the sentence."Instead, the motion was construed as one for the withdrawal of public documents.Noting that 28 U.S.C. § 753(b) makes court records open to inspection by any person without charge and the prisoners' constitutional right to access to the courts, we reasoned that the failure of a district court to provide access to court records to prisoners unable to inspect court documents in the office of the court clerk would work an invidious discrimination in violation of the due process clause of the Fifth Amendment.Consequently, this court, relying in part upon its supervisory powers, held that upon a proper application to inspect a preexisting court record, the district court should mail the record to a prisoner "providing appropriate safeguards to maintain the record's integrity similar to those detailed in our Circuit Rule 4(g)."559 F.2d at 459.²

1.Appealability.The Rush opinion did not examine the court's jurisdiction to review the action of the district court other than to cite 28 U.S.C. § 2253, and it cannot be regarded as determinative of the question in this case.In Rushthe district court treated the petitioners' motion as one for relief pursuant to § 2255.Thus jurisdiction did lie in this court under § 2253 providing for review of "the final order" in a habeas corpus proceeding.Rush, however, went beyond merely reversing the district court's judgment.It recognized the rights of indigent prisoners to access to court documents prior to filing § 2255 motions.That is precisely the right that the petitioner relies on in this case.Because § 2255 has not as yet been invoked, § 2253 provides no basis for this court's jurisdiction.Instead, the appealability of the district court's action should be tested under 28 U.S.C. § 1291 which confers jurisdiction in the courts of appeals to review "all final decisions of the district courts."

Had the petitioner filed a § 2255 motion and then been refused permission to inspect the court's documents, the trial court's order would be in the nature of a discovery order entered in the course of an action.Such orders are not in the usual case independently appealable and the petitioner would probably have to wait until final judgment and urge the district court's action as a basis for reversal.In the present case, however, no § 2255 action has been filed: The sole right asserted by the petitioner is the right to inspect public documents prior to initiating a § 2255 action in the district court.As such this case falls within an exception to the general rule barring immediate review of discovery orders."Discovery judgments may also be subject to final judgment appeal if production of information is found to be the sole object of the district court proceeding."15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure§ 3914 at 578(1976).Orders granting or denying petitions to perpetuate testimony pursuant to Fed.R.Civ.P. 27 and requests for letters rogatory, see id. at 28(b)(3), for example, are generally regarded as immediately appealable.Here, although the petitioner's ultimate goal is to attack his judgment of conviction, the only right he presently asserts is the right to review further the documents underlying that conviction.We hold that the district court's order denying him that right is a "final decision" within the meaning of 28 U.S.C. § 1291.Cf.Jones v. Superintendent, 460 F.2d 150, 152(4th Cir.1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1380, 35 L.Ed.2d 611(1973)(§ 1983 action to compel production of transcripts from a state).

2.The Merits.We do not regard this appeal as requiring that we pass on the correctness of the "preliminary procedure" established by the district court.³Although the U. S. Attorney maintains that the petitioner has failed to establish that the records which he seeks are unobtainable from his trial and appellate counsel, the district court did permit the petitioner to review the records once.Therefore, the district court implicitly...