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United States v. Nuno

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 7, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALFREDO NUNO, DEFENDANT.

ORDER ON DEFENDANT'S REQUEST FOR TRANSCRIPTS

Defendant Alfredo Nuno ("Defendant") was convicted by plea of guilty to one count of conspiracy to manufacture methamphetamine and aiding and abetting on November 2, 2009. Defendant was sentenced to a term of 262 months imprisonment on February 22, 2010. Judgment was entered on March 31, 2010. On September 27, 2010, Defendant filed a document titled "Request for Transcripts" wherein Defendant stated his request for "transcripts of his trial proceedings" "for the purposes of his appeal."

The court has examined the docket report in this case and finds that no notice of appeal was ever filed. The court also notes that the 10-day limit for the filing of a notice of appeal has long since passed. In addition, the court notes the obvious fact there were no trial proceedings in this case since Defendant's conviction was by plea of guilty. The court therefore assumes that what Defendant is requesting is transcripts from one or more of his court appearances that may pertain to his conviction or sentencing. The court also notes that no habeas petition has been filed by Defendant as of this writing.

Because Defendant has made no tender of payment for transcripts, the court presumes that Plaintiff is requesting that transcripts be provided free of cost to him. A defendant's entitlement to free transcripts of proceedings is regulated by the provisions of 28 U.S.C. § 753(f). Pursuant to that section, fees for transcripts requested by a petitioner in a suit pursuant to 28 U.S.C. § 2255 will be paid by public funds "if the trial 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." A defendant in a criminal case who has foregone his statutory right to appeal has no constitutional or statutory right to public payment for transcripts of proceedings in his case other than as provided by 28 U.S.C. § 753(f). United States v. MacCollom, 426 U.S. 317, 322-323 (1976).

Because no appeal or petition for post-conviction relief has been filed in this case, the court has no basis for consideration of Defendant's request for transcripts. The court cannot consider Defendant's request unless and until Defendant first files a petition to correct, vacate or set aside his conviction pursuant to 28 U.S.C. § 2255. Defendant may thereafter request transcripts of proceedings at no cost to him. The court will grant such request only if it appears to the court that the petition is not frivolous and that the requested transcripts are necessary to decide an issue presented.

Defendant's request for transcripts filed on September 27, 2010, is hereby DENIED.

IT IS SO ORDERED.

20101007

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