Opinion
1:17-cr-148-LJO-SKO-1
06-06-2018
UNITED STATES OF AMERICA, Plaintiff, v. RUBEN BARAJAS-GUERRERO, Defendant.
ORDER RE REQUEST FOR TRANSCRIPT AND OTHER DOCUMENTS (ECF NO. 19)
Defendant pled guilty on September 25, 2017 to one count of possession with intent to distribute methamphetamine. ECF Nos. 12-14. He was sentenced on December 18, 2017 to 262 months' incarceration and 60 months' supervised release. ECF Nos. 17 &18. Defendant has now filed a request for a copy of his plea agreement, sentencing transcript, and any objections to his presentence report because he is "trying to file [his] 28 U.S.C. [§] 2255" motion. ECF No. 19.
As to the request for his sentencing transcript, which has yet to be prepared for any party or purpose in this case, 28 U.S.C. § 753(f) provides that the United States shall pay the fee for transcripts furnished in criminal proceedings under the Criminal Justice Act (18 U.S.C. § 3006A) or in a non-frivolous habe as corpus proceeding where the defendant has been permitted to proceed in forma pauperis. United States v. Lucatero, No. 05-cr-0443-WBS, 2007 WL 1747077, at *1 (E.D. Cal. June 18, 2007) (citing 28 U.S.C. § 753(f)). "A prisoner is not constitutionally or statutorily authorized to receive free copies of transcripts simply because he intends to bring a § 2255 petition for post-conviction relief in the future." Id. 28 U.S.C. § 753(f) further provides that fees for transcripts in § 2255 proceedings shall be paid by the United States under the statute if the defendant is "permitted to sue or appeal in forma pauperis," and, "if the trial judge . . . certifies" that (1) "the suit or appeal is not frivolous"; and, (2) "that the transcript is needed to decide the issue presented by the suit or appeal." See also Britt v. North Carolina, 404 U.S. 226, 227 (1971) (finding that an indigent prisoner must, as a matter of equal protection, be provided "with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal").
Because Defendant has yet to file any post-conviction motions, under 28 U.S.C. § 735(f), Defendant's request for a free copy of his transcript is therefore premature and cannot be entertained at this time. See United States v. Connors, 904 F.2d 535, 536 (9th Cir. 1990) ("Although Connors is indigent, he has not filed a habeas petition, and therefore is not entitled to copies of his trial transcript at government expense until he does so."); see also Lucatero, 2007 WL 1747077, at *2 ("The vast majority of courts have interpreted [28 U.S.C. § 753(f)] to mean that until a prisoner actually 'brings a proceeding under section 2255,' he is not entitled under § 753(f) to have costs for creating or copying such transcripts or other documents paid by the United States."). In the absence of Defendant actually filing a post-conviction motion, the Court cannot determine whether that motion is frivolous, as required by § 753(f). Therefore, his request for a free copy of his sentencing transcript is DENIED. Defendant is free to request that the transcript be prepared at his own expense. Accordingly, the Clerk of Court is directed to serve on Defendant a transcript request form along with a copy of this order.
The Court notes that Defendant's plea agreement precludes him from filing most forms of collateral attack motions. See ECF No. 12 at 7. --------
As for Defendant's request for a copy of any objections to the presentence report, the Court can confirm that no such objections were filed.
Because the plea agreement is a public record of modest length, Defendant's request for a copy of it is GRANTED as a courtesy. The Clerk of Court is also directed to serve a copy of the plea agreement, ECF No. 12, on Defendant along with this order. IT IS SO ORDERED.
Dated: June 6 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE