Opinion
No. 99-40046-01-SAC.
October 30, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Melissa Marie Jackson's pro se motion to unseal plea agreement and attached order form for a transcript of her sentencing hearing held on July 11, 2000. (Dk. 202). The defendant erroneously identifies the plea agreement as docket number 103 instead of docket number 104. The government has filed its response noting that the plea petition with attached plea agreement was sealed for the benefit and security of the defendant but not opposing the defendant's request to unseal the documents if the defendant knows the potential consequences from her request. (Dk. 204).
The filing at docket number 103 is a minute sheet from the change of plea hearing. This minute sheet has already been unsealed pursuant to a minute order on July 19, 2000 (Dk. 172).
The court furnished a copy of this pro se motion to the defendant's attorney appointed to represent her at trial and sentencing. The court now directs her attorney to furnish the defendant promptly with a copy of the plea petition and plea agreement. The defendant's attorney shall bill the court for any costs and fees associated with providing a copy of these documents to the defendant. Because there appear some basis for ongoing concerns over the defendant's safety and security should these documents be unsealed, the court denies the defendant's request to unseal these documents.
The defendant asserts in her motion "that there appears to be a discrepancy in amount of drugs in the sentencing, in the Presentence Investigation Report, and in the amount in the Plea Agreement." (Dk. 202). She further states that "she may not be responsible for the amount of drugs under which she was sentenced." Id. In her transcript order form, the defendant offers that she needs the transcript from her sentencing in order to prepare other pleadings in this case.
The defendant apparently requests the sentencing transcript in order to prepare her motion for relief pursuant to 28 U.S.C. § 2255. Such a transcript request must satisfy the requirements of 28 U.S.C. § 753(f). United States v. Sistrunk, 992 F.2d 258, 260 (10th Cir. 1993) ("§ 753(f) is the exclusive provision governing requests by indigent prisoners for free transcripts."). The defendant has not shown a "particularized need for the transcript" as required by 28 U.S.C. § 753(f). See Sistrunk v. United States, 992 F.2d at 259; United States v. Austin, 48 F.3d 1233, 1995 WL 94632 (10th Cir. 1995) (Table). "A petitioner seeking relief under 28 U.S.C. § 2254 or 2255 must first demonstrate that his claim is not frivolous and that the transcript is needed to decide the issue presented by the suit before the court is required to provide him with a free transcript." Brown v. New Mexico District Court Clerks, 141 F.3d 1184, 1998 WL 123064, at *3 n. 1 (10th Cir. Mar. 19, 1998) (Table) (citing United States v. MacCollom, 426 U.S. 317 (1976) (plurality) (interpreting a § 2255 petition and 28 U.S.C. § 753(f)). A prisoner does not have the right to a free transcript simply to search for error in the record. Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992); United States v. Brown, No. 94-20020-01-JWL, 1995 WL 468431 (Kan. Jul. 25, 1995). The naked assertion of ineffective assistance of counsel without supporting factual allegations does not satisfy the requirements of § 753(f). See MacCollom, 426 U.S. at 327-38; Ruark v. Gunter, 958 F.2d at 319. The defendant has not yet filed a § 2255 motion, nor has he proffered facts sufficient for the court to determine whether such a motion would be frivolous or not. United States v. Basey, No. 92-40036-01-DES, 1997 WL 51391 (Kan. Jan. 29, 1997); see United States v. Horvath, 157 F.3d 131, 133 (2nd Cir. 1998) (Consistent with the approach taken by four other circuits, the court held that "a motion seeking transcripts pursuant to § 753(f) in relation to a contemplated § 2255 motion is not ripe until the § 2255 motion has been filed."); Sistrunk, 992 F.2d at 359 (avoided deciding whether actual filing of the § 2255 petition is a prerequisite to a § 753(f) transcript request).
The defendant asserts a discrepancy in the amount of drugs referenced in the plea agreement, considered in the presentence report, and used at sentencing. After reviewing the plea agreement and the presentence report, the court finds nothing to support this assertion. The defendant did agree in the plea agreement that her relevant conduct would be determined by Counts 1 through 4. The specific drug amounts charged in those counts total approximately 30 grams of cocaine base. By the terms of the plea agreement, the defendant also stipulated, however, to the government's factual basis for her guilty plea to Count 5 that charged her with conspiracy to possess with intent to distribute 50 grams or more of cocaine base. Consistent with the government's factual basis for Count 5, the defendant's stipulation thereto, and the defendant's guilty plea to Count 5, the presentence report calculated a base offense level on an amount of drugs totaling 51.37 grams of cocaine base. As stated above, the court must deny the defendant's request for a sentencing transcript as she has failed to show that her argument is not frivolous and that she needs the transcript from her sentencing to present this argument.
IT IS THEREFORE ORDERED that the defendant Melissa Jackson's motion to unseal (Dk. 202) the plea petition with attached plea agreement (Dk. 104) is denied but her counsel is directed to furnish promptly the defendant with a copy of the same;
IT IS FURTHER ORDERED that the defendant's accompanying request for authorization and voucher for payment of the sentencing transcript is denied.