United States v. Martin

United States Court of Appeals
for the Fifth Circuit

No. 19-41056

United States of America,

Plaintiff—Appellee,

versus

Kenneth Martin, Jr.,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:16-CR-19-5

Before Elrod, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Kenneth Martin’s federal habeas claims are still being litigated in
district court. In this appeal, Martin seeks immediate review of a subsidiary
matter: whether the district court properly refused to modify a protective
order covering the government’s discovery materials. Lacking jurisdiction to
decide that question now, we DISMISS his appeal.

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 15, 2020

Lyle W. Cayce
Clerk
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No. 19-41056
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I.
In 2016, Martin was indicted on federal drug crimes. In April of that
year, before Martin’s jury trial commenced, the district court issued a
protective order covering all discovery provided by the government. Its point
was to protect “particularly sensitive information, including, but not limited
to, cooperation agreements, cooperator statements, and presentence
reports.” The order forbade showing these materials to anyone other than
Martin, his counsel, and others employed in his defense. It let Martin review
the materials, but only in court or in counsel’s presence. In July 2016, Martin
was convicted of conspiracy to possess with intent to distribute a controlled
substance and sentenced to 115 months in prison.
On September 24, 2019, Martin challenged his conviction under 28
U.S.C. § 2255, claiming ineffective assistance of counsel. On October 10,
2019, he moved to lift the protective order, arguing he needed the protected
materials for his habeas proceeding. The district court denied the motion,
finding the order remained “critical to protecting the rights of confidential
sources and ongoing criminal investigations,” especially given Martin’s and
his family’s “known history of intimidating witnesses.” The court also found
Martin failed to show good cause for modifying the order. Martin now
appeals the denial of his motion. His § 2255 proceeding remains pending in
the district court.
II.
We must police our own appellate jurisdiction. See, e.g., Edwards v.
4JLJ, LLC, 976 F.3d 463, 465 n.2 (5th Cir. 2020) (citing Castaneda v. Falcon,
166 F.3d 799, 801 (5th Cir. 1999)). Sensing a disturbance on that front, we
asked for supplemental briefing. The government argues we lack jurisdiction
because Martin tries to appeal a non-final decision that falls outside the
collateral-order exception. We agree.
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Generally, we may review only “final decisions of the district courts.”
28 U.S.C. § 1291; see also id. § 2255(d) (“An appeal may be taken to the court
of appeals from the order entered on the [§ 2255] motion as from a final
judgment on application for a writ of habeas corpus.”). “This final judgment
rule requires ‘that a party must ordinarily raise all claims of error in a single
appeal following final judgment on the merits.’” Flanagan v. United States,
465 U.S. 259, 263 (1984) (quoting Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 374 (1981)). Martin’s appeal violates that rule by appealing a
discovery-related ruling while his underlying § 2255 action remains pending.
See, e.g., A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233 F.3d
895, 897 (5th Cir. 2000) (“[D]iscovery orders do not constitute final
decisions under § 1291 and are not immediately appealable.” (citing Church
of Scientology v. United States, 506 U.S. 9, 18 n. 11 (1992))).
That ends the story unless the district court’s order fits into the
“narrow exception” known as the collateral-order doctrine. Williams v.
Catoe, 946 F.3d 278, 280 (5th Cir. 2020) (en banc) (citing Digit . Equip. Corp.
v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). To qualify, an order “must
satisfy each of three conditions: it must (1) ‘conclusively determine the
disputed question,’ (2) ‘resolve an important issue completely separate from
the merits of the action,’ and (3) ‘be effectively unreviewable on appeal from
a final judgment.’” Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988)
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
At a minimum, the district court’s order fails the third condition.
“[T]he decisive consideration” under that prong “is whether delaying
review until the entry of final judgment ‘would imperil a substantial public
interest’ or ‘some particular value of a high order.’” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009) (quoting Will v. Hallock, 546 U.S. 345,
352–53 (2006)). In making this determination, “we look to categories of
cases, not to particular injustices,” Van Cauwenberghe, 486 U.S. at 529, and
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determine whether “the class of claims, taken as a whole, can be adequately
vindicated” without an immediate right of appeal. Mohawk Indus., 558 U.S.
at 107. “[T]he chance that the litigation at hand might be speeded, or a
particular injustice averted, does not provide a basis for jurisdiction
under § 1291.” Id. (cleaned up).
The protective order at issue concerns the government’s discovery
materials. “We start from the well-settled rule in this circuit that discovery
orders may not be appealed under the Cohen exception.” A-Mark Auction
Galleries, 233 F.3d at 899 (citation omitted); see also, e.g., In re Tullius, 500 F.
App’x 286, 292 (5th Cir. 2012) (unpublished). Furthermore, Martin
identifies no critical interests that will be imperiled by delaying review of the
district court’s order. He merely speculates about “documents . . . [and]
discovery materials” his lawyer should have used in his defense, contending
the protective order prevents him from adequately reviewing those materials.
That vague assertion fails to explain why our review of the protective order
must occur immediately, before final judgment. Martin also fails to mention
that, in the district court, he represented that “most—if not all” of the
material under the protective order “has been released to the public
domain.” That was one reason the district court found no need to modify the
protective order. It likewise explains why no pressing need exists to review
this matter now.
1

If Martin does not ultimately prevail on his § 2255 motion, he can
properly appeal and argue that the district court’s decision to maintain the
protective order was somehow reversible error. Cf., e.g., Goodman v. Harris
County, 443 F.3d 464, 469 (5th Cir. 2006) (“[C]onclusively, this court has

1
We also note that, of the twelve grounds of ineffective assistance of trial counsel
Martin raises, only one concerns the protected discovery material.
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the ability to render meaningful review of the order upon a final judgment.
Nothing puts this order beyond the scope of this court’s review.”). In the
meantime, though, the inconvenience Martin claims from the protective
order cannot justify an immediate appeal. “[T]he fact that a ruling may
burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final judgment has never sufficed to breach the collateral-order
doctrine.” Williams, 946 F.3d at 280 (quoting Mohawk Indus., 558 U.S. at
107) (cleaned up); cf., e.g., Vantage Health Plan, Inc. v. Willis-Knighton Med.
Ctr., 913 F.3d 443, 449 (5th Cir. 2019) (collateral-order doctrine applied
because order would disclose confidential third-party information and so was
unreviewable on appeal).
Appeal DISMISSED.
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