UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 3, 2007
UNITED STATES OF AMERICA, PLAINTIFF,
JOSE FALU-MENDOZA, DEFENDANT.
The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING DEFENDANT'S REQUEST FOR TRANSCRIPTS
Before the Court is Defendant Jose Falu-Mendoza's ("Defendant") Motion for Order of Sentencing Hearing Transcripts. [Doc. No. 77.] Defendant asserts that he is indigent and needs the transcripts to prepare a petition pursuant to 28 U.S.C. § 2255.
The applicable statute, 28 U.S.C. § 753(f), provides in pertinent part: 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.
28 U.S.C. § 753(f). Courts have interpreted this language to mean that, until a prisoner files a § 2255 motion, he is not entitled under § 753(f) to have costs for such transcripts paid by the United States. See, e.g., Chapman v. United States, 55 F.3d 390, 390 (8th Cir. 1995); Hansen v. United States, 956 F.2d 245, 248 (11th Cir. 1992); United States v. Herrera, 474 F.2d 1049, 1049 (5th Cir. 1973) (per curiam); Bentley v. United States, 431 F.2d 250, 253 (6th Cir. 1970); United States v. Stevens, 224 F.2d 866, 868 (3d Cir. 1955). Once a petitioner files a § 2255 petition, a district court must certify that the petition is not frivolous and that the transcript is needed to decide the issue presented by the petition. See 28 U.S.C. § 753(f).
Under 28 U.S.C. § 753(f), this Court is not authorized to order payment for transcripts before Defendant has filed a § 2255 petition. Further, based on the limited information provided in Defendant's motion, the Court cannot determine whether his petition will be frivolous or whether a transcript will be needed to decide the issues presented in the petition. Defendant asserts that he plans to submit a petition on the grounds of ineffective assistance of counsel and illegal sentence because "Supervised Release is not a punishment in defendants [sic] original sentence statue [sic] pursuant to § 3583(a)." (Mot. at 1.) However, 18 U.S.C. § 3583(a) provides that the Court, "in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment." 18 U.S.C. § 3583(a) (emphasis added). Contrary to Defendant's assertion, the text of the statute provides that the Court may impose a term of supervised release. Defendant thus fails to provide any legal arguments or factual allegations to support his claim that his counsel was ineffective or that his sentence was illegal. Accordingly, the Court DENIES Defendant's Motion for Order of Sentencing Hearing Transcripts.
IT IS SO ORDERED.
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