Opinion
Case No. 7:06CV00604.
July 5, 2007
Thomas Harel Jennings, II, Pro Se Petitoner.
OPINION AND ORDER
In this closed civil action, brought as a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C.A. § 2255, petitioner Thomas Harel Jennings presents the court with a Motion for Certificate of Appealability, a Motion to Proceed in Forma Pauperis on Appeal, and a Motion for a Free Transcript. Upon review of the record, I find that Jennings may proceed in forma pauperis in his appeal, but I will deny his other motions for lack of cause shown.
A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C.A. § 2253(c)(1) (West 2006); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003). For the reasons stated previously in this case, I conclude that the Jennings has failed to make a substantial showing of denial of a constitutional right and is therefore not entitled to a certificate of appealability.
In his Motion for Certificate of Appealability, Jennings raises claims not presented in his original § 2255 motion. He alleges that the attorney appointed to represent him at sentencing provided ineffective assistance by (1) failing to object to a three-point enhancement for aggravated role in the offense (endangering the safety of minor children); (2) failing to move to withdraw the guilty plea after Jennings asked counsel to do so; (3) failing to object to the drug quantity and hearsay statements at sentencing after Jennings requested objections; (4) negotiating with the prosecutor before the sentencing hearing to coerce Jennings into deciding not to withdraw his guilty plea; and (5) failing to file a notice of appeal after Jennings asked him at the sentencing hearing to do so. I dismissed Jennings's § 2255 motion after finding that he had entered a valid plea agreement waiver of his right to bring a collateral attack. Jennings v. United States, No. 7:06CV00604, 2007 WL 1655257 (W.D. Va. June 7, 2007).
Even if I now allowed Jennings to amend his closed § 2255 case to raise these additional claims, he would not be entitled to relief. Because Claims 1, 2, 3, and 4 in the current motion do not bear on the validity of the plea agreement or its waiver provision, these claims are waived, pursuant to that plea agreement waiver provision. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). While Claim 5 is not barred by the waiver, see United States v. Poindexter, Nos. 05-7635, -7636, 2007 WL 1845119 (4th Cir. June 28, 2007), it was filed outside the one-year statute of limitations, pursuant to 28 U.S.C.A. § 2255 para. 6(1) (West 2006). Jennings's conviction became final on November 15, 2005, when he did not appeal, and he first filed Claim 5 in his June 25, 2007 motion for Certificate of Appealability, more than a year and a half later. Furthermore, the claim does not relate back to any of his originally filed claims, as it is based on entirely different facts. See Mayle v. Felix, 545 U.S. 644, 664 (2005) (holding that "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back [under Fed.R.Civ.P. 15(c)] will be in order"; otherwise, amendment filed more than one year after conviction becomes final is time-barred).
An indigent defendant who is pursuing a motion under § 2255 is entitled to free transcripts from his criminal proceedings only if the court finds that the § 2255 motion is not frivolous and the transcript is needed to decide the issues presented in the motion. See 28 U.S.C. § 753(f) (West 2006); United States v. MacCollom, 426 U.S. 317, 326 (1976); United States v. Shoaf, 341 F.2d 832, 833-34 (4th Cir. 1964) (holding that indigent defendant must show some need for transcript beyond his mere desire to comb the record in hope of discovering errors to raise in habeas). I previously granted respondent's Motion to Dismiss, and Jennings noted an appeal. Jennings now requests a free copy of the sentencing transcript. This transcript is already a part of the court's record, and the court of appeals can review it in addressing Jennings' pending appeal. Therefore, I do not find that petitioner is entitled to a free copy of his sentencing transcript.
In accordance with the foregoing, it is ORDERED that the Motion for a Certificate of Appealability and Motion for Free Transcript are DENIED, and the Motion to Proceed in Forma Pauperis on Appeal is GRANTED.
The clerk will send a copy of this Opinion and Order to the clerk of the court of appeals.