Opinion
Civil Action No. 05-cv-01491-PSF-PAC.
May 15, 2006
ORDER
This is a habeas corpus action filed by Applicant Ronald Jennings Fogle under 28 U.S.C. § 2254. The matter before the court is Petitioner's Request for Record without Cost [filed May 2, 2006]. Applicant has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915(d).
Applicant states that "he has never reviewed the record which the Respondents have referred to for support of the court's imposition of an aggravated sentence range." Applicant requests a copy of the "record" under 28 U.S.C. § 2250. That statute provides:
If on application for a writ of habeas corpus an order has been made permitting the petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record . . . as may be required by order of the judge before whom the application is pending.
Under 28 U.S.C. § 2250, the judge in a pending habeas corpus proceeding has discretion to order the Clerk of the court to provide a habeas applicant free copies of the proceedings in the applicant's underlying criminal case if the applicant makes a showing that the requested documents or parts of the record are necessary to prosecute his federal habeas claims. See Hines v. Baker, 422 F.2d 1002, 1006-07 (10th Cir. 1970) (holding that indigent prisoner is not entitled to free transcript of state court proceedings without a showing of need); Cassidy v. United States, 304 F.Supp. 864, 867-68 (D.C. Mo. 1969) (same), aff'd 428 F.2d 585 (8th Cir. 1970); U.S. ex rel. Williams v. State of Delaware, 427 F.Supp. 72, 73-74 (D.C.Del. 1976) (holding that federal habeas court need not provide free copy of state transcripts to indigent prisoner without a minimal showing of merit on habeas claims); Bozeman v. United States, 354 F.Supp. 1262, 1263-64 (D.C.Va. 1973) (ordering Clerk to provide free copy of habeas petitioner's guilty plea proceeding to petitioner because transcript was relevant to petitioner's 28 U.S.C. § 2255 claims).
Applicant's statements in his motion are somewhat vague. However, after reviewing Applicant's Traverse, it appears that Applicant is requesting copies of the transcripts from his state district court providency and sentencing hearings, held on August 24, 2000 and October 23, 2000, respectively, along with a copy of Applicant's presentence report. The undersigned has issued a Recommendation that Mr. Fogle's § 2254 Application be dismissed as untimely, or, alternatively, as without merit. See Recommendation of United States Magistrate Judge, filed May 11, 2006. There is nothing in the transcripts of the state court hearings, or in Applicant's presentence report, that supports Applicant's claims for federal habeas corpus relief. Because Applicant has failed to make the requisite showing of need, it
HEREBY ORDERED that Petitioner's Request for Record without Cost [filed May 2, 2006] is DENIED.