Opinion
CASE NO. 8:18-CR-53-T-17AEP
05-03-2019
UNITED STATES OF AMERICA, v. AMILKA MURILLO HURTADO.
Pro Se Defendant: Amilka Murillo Hurtado Reg. No. 70029-018 Rivers Correctional institution P. O. Box 630 Winton, N.C. 27986
ORDER
This cause is before the Court on:
Dkt. 116 Motion to Waive the Fees on Court Records
Defendant Amilka Murillo Hurtado, pro se, requests that the Court waive the cost for court records which could help Defendant in filings that Defendant Hurtado wishes to file.
Defendant Hurtado was sentenced on August 9, 2018. Defendant Hurtado has not appealed the Judgment entered in this case, nor has Defendant Hurtado filed a Sec. 2255 Petition or a habeas Petition.
In the Motion, Defendant Hurtado has not explained what claims the court records that Defendant Hurtado intends to request would have helped Defendant Hurtado to raise. Defendant Hurtado has not included any allegations that might establish that Defendant Hurtado is entitled to transcripts and court records at this time.
After consideration, the Court finds that Defendant Hurtado's Motion to Waive Fees on Court Records is premature. The Court notes that a district court's denial of a federal prisoner's transcript request has been affirmed on appeal where there is no appeal pending and the defendant has not moved to vacate his sentence under Sec. 2255. See Walker v. United States, 424 F.2d 278, 279 (5 Cir. 1970) (holding that "only where a [habeas] petitioner...has been granted leave to proceed in forma pauperis and his application is pending before the court is that petitioner entitled to be furnished copies of court records without costs.") Based on the plain language and necessary operation of [28 U.S.C. Sec. 753(f)...a motion for a free transcript pursuant to Sec. 753(f) is not ripe until a Sec. 2255 motion has been filed. United States v. Horvath, 157 F.3d 131, 132 (2d Cir. 1998); see also United States v. Losing, 601 F.2d 351, 352 (8 Cir. 1979) (holding that, under the language of Sec. 753(f) and the Supreme Court's decision in United States v. MacCollom, 426 U.S. 317 (1996), any request for a free transcript prior to the filing of a section 2255 complaint is premature). Accordingly, it is
ORDERED that pro se Defendant Amilka Murillo Hurtado"s Motion to Waive Fees on Court Records (Dkt. 116) is denied without prejudice.
DONE and ORDERED in Chambers in Tampa, Florida on this 3RD day of May, 2019.
/s/_________
ELIZABETH A. KOVACHEVICH
United States District Judge Copies to:
All parties and counsel of record Pro Se Defendant: Amilka Murillo Hurtado
Reg. No. 70029-018
Rivers Correctional institution
P. O. Box 630
Winton, N.C. 27986