Opinion
Case No. 1:04-cr-00018-MP-AK.
June 28, 2006
ORDER
This matter is before the Court on Doc. 77, Motion to Proceed In Forma Pauperis and for Transcripts of Trial and Sentencing, filed by Carol Elizabeth Schultz. Over six months have passed since judgment was entered against Ms. Schultz, and no appeal was taken. Indeed, Ms. Schultz indicates that she has not yet filed a § 2255 motion but requests the transcripts to help her prepare the § 2255 motion.
The Court, in some instances, can direct the preparation of transcripts in § 2255 cases at government expense. 28 U.S.C. § 753(f) provides:
Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal.
However, Courts have interpreted this provision to mean that a motion for free transcript, in connection with § 2255 proceedings, is not ripe until a motion to vacate, set aside, or correct sentence has been filed. In fact, availability of free transcript depends on whether it is necessary for trial court to decide postconviction motion, not for petitioner to prepare it.United States v. Horvath, 157 F.3d 131 (2nd Cir. 1998). See also United States v. Losing, 584 F.2d 289 (8th Cir. 1978) (holding that any request for a free transcript prior to filing of a claim for postconviction relief is premature). Here, Ms. Schultz has not yet filed her § 2255 motion and has nothing else pending in this case. Accordingly, her motion for in forma pauperis status and for transcripts at government expense are denied.
DONE AND ORDERED.