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United States of America v. Jose Macarena-Esparza

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


December 29, 2010

UNITED STATES OF AMERICA, PLAINTIFF/ RESPONDENT,
v.
JOSE MACARENA-ESPARZA, DEFENDANT/PETITIONER.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

OWW ORDER DENYING PETITIONER'S MOTION FOR TRIAL TRANSCRIPTS AND LEGAL DOCUMENTS WITHOUT,PREJUDICE

On December 23, 2010, Jose Macarena-Esparza, proceeding in pro per, filed a motion for production of (1) trial and evidentiary hearing transcripts, and (2) Indictment, Presentence Reports and docket sheet.

Petitioner was charged with one count of conspiracy to distribute methamphetamine and with two counts of distribution of methamphetamine. Pursuant to a written Plea Agreement, Petitioner pleaded guilty to one count of distribution of methamphetamine. Petitioner's Plea Agreement did not waive his right to appeal his conviction or sentence or his right to challenge his conviction or sentence by collateral attack. Petitioner was sentenced on June 26, 2006 to 120 months incarceration and 60 months of supervised release. Petitioner did not file a notice of appeal and his conviction and sentence are now final. Petitioner's motion requests production of the documents at government expense and asserts that he is indigent. Petitioner 9 has not filed any post-conviction collateral attack on his conviction or sentence. Petitioner's motion is DENIED WITHOUT PREJUDICE.

28 U.S.C. § 753(f) provides: Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. 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. Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question).

Petitioner is not entitled to copies of transcripts or other court records at Government expense until he actually brings a post-conviction motion. See United States v. Lucatero, 2007 WL 1747077 (E.D.Cal.2007); United States v. Soto-Valdez, 2009 WL 1311954 (D.Ariz.2009). IT IS SO ORDERED.

Dated:

668554

20101229

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