Opinion
Case No. 07-CR-20067.
April 23, 2008
OPINION
This case is before the court for ruling on Defendant's pro se Motion for Copy of Trial and Sentencing Transcript (#19). For the reasons that follow, Defendant's Motion (#19) is DENIED.
BACKGROUND
On August 17, 2007, Defendant, Joseph Williams, entered an open plea of guilty to the offense charged in the indictment (#5) against him. The indictment charged that Defendant, by intimidation, did take from the person or presence of another, money belonging to and in the care, custody, control and possession of the ICG Credit Union, the deposits of which were insured by the National Credit Union Administration, in violation of 18 U.S.C. § 2113(a). On November 20, 2007, a sentencing hearing was held and Defendant was sentenced to a term of 188 months in the Federal Bureau of Prisons. Defendant did not file a notice of appeal.
ANALYSIS
On April 23, 2008, Defendant filed a pro se Motion for Copy of Trial and Sentencing Transcript (#19). Defendant stated that he desires to collaterally attack his conviction and sentence (presumably by filing a Motion under 28 U.S.C. § 2255). He asked this court to enter an order directing the clerk of the court to provide him with a certified copy of both the trial and sentencing transcript from this case. Defendant further stated that he is indigent and is entitled to the requested transcripts at no charge pursuant to 18 U.S.C. § 3006A(e).
This court initially notes that, because Defendant did not appeal his conviction or sentence, no transcripts have been prepared in this case. Additionally, because Defendant pleaded guilty to the charge against him, no trial was held, so no trial transcript could be prepared. Moreover, 18 U.S.C. § 3006A(e) does not have any application to a request for transcripts related to a Motion under 28 U.S.C. § 2255.
Instead, 28 U.S.C. § 753(f) allows an indigent defendant to obtain the preparation of free transcripts to prosecute a § 2255 action, "if the trial judge . . . certifies that the suit . . . is not frivolous and that the transcript is needed to decide the issue presented by the suit." 28 U.S.C. § 753(f); see also United States v. Ray, 2007 WL 4232988, at *1 (E.D. Wis. 2007). "However, the defendant must first file the § 2255 action in order to obtain preparation of transcripts under § 753(f)." Ray, 2007 WL 4232988, at *1 (emphasis in original); see also United States v. Tolliver, 2007 WL 611236, at *1 (S.D. Ill. 2007) (stating that § 753(f) applies when the transcript is needed to decide an issue presented by a pending and non-frivolous action). Because Defendant has not yet filed a § 2255 motion, he is not eligible for transcripts under § 753(f). See Ray, 2007 WL 4232988, at *1.
This court notes that, once Defendant has filed his Motion under 28 U.S.C. § 2255, he may file a motion requesting the preparation of transcripts under § 753(f). If this court concludes that Defendant's Motion is not frivolous and that transcripts are needed to decide an issue presented in the Motion, this court will order the preparation of transcripts at that time.
For the reasons stated, Defendant's pro se Motion for Copy of Trial and Sentencing Transcript (#19) is DENIED.