Opinion
CASE NO. 8:17-CR-42-T-17CPT
07-30-2019
UNITED STATES OF AMERICA, v. WALTER HUGO RODRIGUEZ LOPEZ.
Copies to: All parties and counsel of record Pro Se Defendant: Walter Hugo Rodriguez Lopez Reg. No. 68307-018 FCI JESUP LOW 2680 US HIGHWAY 301 South JESUP, GA 31599
ORDER
This cause is before the Court on:
Dkt. 240 Pro Se Motion for Court Intervention
Defendant Walter Hugo Rodriguez Lopez, pro se, requests court intervention as to communication with Defendant Rodriguez Lopez' counsel. Defendant Rodriguez Lopez seeks the discovery provided to his counsel, and the status of Defendant's appeal.
Defendant Rodriguez Lopez was sentenced on February 23, 2018. (Dkts. 204, 205). Defendant Rodriguez Lopez was represented by counsel at sentencing, and an interpreter translated the sentencing hearing. (Dkt. 203). At sentencing, the Clerk's Minutes indicate that Defendant Rodriguez Lopez was advised of his right to appeal, and to counsel on appeal.
Defendant Rodriguez Lopez entered into a Plea Agreement which contains a waiver of the right to appeal the sentence, except on certain grounds:
a. the sentence exceeds Defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines;(Dkt. 87, p. 17).
b. the sentence exceeds the statutory maximum penalty; or
c. the sentence violates the Eighth Amendment to the Constitution.
Magistrate Judge McCoun conducted a change-of-plea hearing on August 17, 2017; during that hearing, Magistrate Judge McCoun questioned Defendant Rodriguez Lopez to ascertain that Defendant Lopez understood the terms of the Plea Agreement and that Defendant Lopez' plea was intelligent and voluntary. (Dkt. 91). The Court listened to the audio recording of the change-of-plea hearing, and it appears that Defendant Rodriguez Lopez' plea was intelligent and voluntary. Defendant Rodriguez Lopez was represented counsel, and an interpreter translated the proceedings. No objection to the Report and Recommendation (Dkt. 94) recommending that Defendant Rodriguez Lopez' plea be accepted was filed.
The Court has reviewed the docket. The docket does not reflect that a Notice of Appeal was filed after the sentencing, nor is there a pending habeas petition or Section 2255 petition. The discovery provided to Defendant's counsel is not filed in the public docket.
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 had not moved to vacate his sentence under Sec. 2255. See Walker v. United States, 424 F.2d 278, 279 (5th 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 (8th 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 Walter Hugo Rodriguez Lopez' Motion for Court Intervention (Dkt. 240) is denied without prejudice. There is no direct appeal pending, nor is there a pending Section 2255 petition or habeas petition.
DONE and ORDERED in Chambers in Tampa, Florida on this 30th day of July, 2019.
/s/_________
ELIZABETH A. KOVACHEVICH
United States District Judge Copies to: All parties and counsel of record Pro Se Defendant: Walter Hugo Rodriguez Lopez
Reg. No. 68307-018
FCI JESUP LOW
2680 US HIGHWAY 301 South
JESUP, GA 31599