Opinion
Criminal No. 03-72.
August 15, 2007
Order
AND NOW, this 15th day of August, 2007, defendant Daniel Keith Matthews ("defendant Matthews") has filed a pro se motion seeking that this court make available transcripts from court proceedings in the above-entitled case so that he can prepare a section 2255 motion. (Doc. No. 893).
The Government has filed a Response in Opposition arguing that defendant Matthews' motion should be denied because the plain language of 28 U.S.C. § 753(f) provides that a section 2255 petitioner is not entitled to transcripts free of cost until the petitioner has filed a section 2255 motion, citing United States v. Horvath, 157 F.3d 131, 132-33 (2d Cir. 1998) (holding that a motion for a free transcript pursuant to section 753(f) is not ripe until a section 2255 motion has been filed). (Doc. No. 895).
The Government is correct. Defendant Matthews' motion for transcripts is hereby DENIED WITHOUT PREJUDICE to his ability to file a motion for transcripts if he files a section 2255 motion.
The court notes that defendant Matthews' direct appeal is still pending and a section 2255 motion normally is premature while a defendant's direct appeal is pending. See United States v. Ford, 215 Fed.Appx. 167, 168 (3d Cir. 2007) (nonprecedential; per curiam) (noting that "in the context of collateral attacks upon convictions, courts have concluded that there is no jurisdictional bar to a District Court's adjudication of a § 2255 motion while the movant's direct appeal is pending, but that such actions are disfavored as a matter of judicial economy and concern that the results on direct appeal may make the District Court's efforts a nullity"; "While a direct appeal is pending, a District Court may consider a § 2255 motion only in "extraordinary circumstances.") (citing United States v. Prows, 448 F.3d 1223, 1228-29 (10th Cir. 2006); Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999); Womack v. United States, 395 F.2d 630, 631 (D.C. Cir. 1968)); see also United States v. LaFromboise, 427 F.3d 680, 686 (9th Cir. 2005) (noting that there is some dispute whether this is a jurisdictional or prudential bar, citing the Advisory Committee Notes to the Rules Governing § 2255 Proceedings: "We are of the view that there is no jurisdictional bar to the District Court's entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances."); Pratt v. United States, 129 F.3d 54, 60-61 (1st Cir. 1997) (citing United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. 1995) ("The settled rule in this circuit . . . is that the district court should decline to hear claims for relief based on allegedly ineffective assistance of counsel until the direct appeal is decided, unless `extraordinary circumstances' are demonstrated.") (citations omitted)).