Opinion
2:17-cr-00073-APG-EJY
07-26-2023
UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA RAY FISHER and JUSTIN ANTHONY FISHER, Defendants.
ORDER
ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Justin Anthony Fisher's Motion for Transcripts. ECF No. 249. Defendant's Motion is made post-conviction and post-appeal. For these reasons, no response will be filed.
Defendant seeks “court records” regarding criminal proceedings before this Court because he is preparing a habeas petition under 28 U.S.C.§ 2255. Id. at 3. Defendant says sentencing transcripts are most important. Id. Defendant also seeks an order enforcing a prior order vacating the separation of Defendant from his brother Joshua Ray Fisher.
On July 19, 2019, the Court issued a Minute Order stating in pertinent part: “At the request of counsel for the Defendant, the Court's Separation Order is VACATED.” ECF No. 161. The docket reflects his Order remains in effect.
With respect to providing Defendant with the records of criminal proceedings, the Court notes Defendant has not yet filed a habeas petition or an application to proceed in forma pauperis. Thus, Defendant's Motion request is premature. 28 U.S.C. § 753(f) (“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.”). See also United States v. Rodriguez-Lopez, Case No. 8:17-cr-42-T-17-CPT, 2019 WL 9047181, at *1 (M.D. Fl. July 30, 2019) citing United States v. MacCollom, 426 U.S. 317, (1976) (any request for a free transcript prior to the filing of a section 2255 complaint is premature); 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 cost.”).
Based on the foregoing, IT IS HEREBY ORDERED that Defendant's Motion for Transcripts (ECF No. 249) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Order vacating the previously entered Separation Order remains in effect. See ECF No. 161.
IT IS FURTHER ORDERED that Defendant's Motion seeking transcripts of proceedings is DENIED without prejudice as premature.