Opinion
Criminal Action 15-00184-01
10-07-2021
UNITED STATES OF AMERICA v. TYRONE LARRY SMITH
HORNSBY MAGISTRATE JUDGE
MEMORANDUM ORDER
S. MAURICE HICKS, JR., CHIEF JUDGE
Before the Court is a Motion for Leave to File an Amended Petition in Support of Title 28 U.S.C. Section 2255 (Record Document 387) filed pro se by the defendant, Tyrone Larry Smith ("Smith"). Smith "moves the Court to obtain an Order directing counsel to provide copies of trial transcripts and other documentation essential to artfully submitting points and authorities supporting the merits of his collateral attack petition." Id. at 2.
The Court first notes there is no pending Section 2255 motion in this case. Thus, Smith "is not entitled to discovery prior to filing a § 2255 motion." United States v. Cole, No. 5:09-CR-004-10-C, 2012 W 13088780, at *3 n. 3 (N.D. Tex. Apr. 17, 2012), citing United States v. MacCollom, 426 U.S. 317, 325-26 (1976) (defendant has no constitutional right to free copy of trial transcript or other court records for use in collateral proceeding) and United States v. Carvaial, 989 F.2d 170 (5th Cir. 1993) (defendant was not entitled to receive documents because no § 2255 motion was pending when he filed motions seeking documents in district court). Moreover, the Fifth Circuit has made clear that there is no entitlement to a free transcript so that an indigent defendant may conduct a "fishing expedition" in search of support for a potential § 2255 motion. See United States v. Caravaial, 989 F.2d 170 (5th Cir. 1993). There is also no need for free transcripts to decide issues or claims that have not yet been asserted in a § 2255 motion, as in this case. See United States v. Peralta-Ramirez, 266 Fed.Appx. 360, 361 (5th Cir. 2008).
Accordingly, IT IS ORDERED that Smith's Motion for Leave to File an Amended Petition in Support of Title 28 U.S.C. Section 2255 (Record Document 387) be and is hereby DENIED.
THUS DONE AND SIGNED.