The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING MOTION TO COMPEL FREE TRANSCRIPT OF MARSDEN HEARING
Presently before the Court is Habeas Petitioner Anthony D. Swanegan's ("Petitioner") motion for an order compelling the respondents to provide Petitioner with a "free transcript of a full verbatim record of the Marsden motion hearing." (Pl.'s Mot. 2, ECF No. 18) The motion was filed nunc pro tunc September 16, 2011. On October 6, 2011, the Court issued a briefing schedule setting November 3, 2011 as the date of filing for a response, and noting that the hearing date on the motion was set for December 8, 2011. (Order, Oct. 6, 2011, ECF No. 19) Respondent failed to file a response by the November 3, 2011 deadline.*fn1 The hearing set for the motion on December 8, 2011, was vacated, and the matter taken under submission on the papers.
The Supreme Court has established that a "State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227 (1971). Pursuant to this rule, "the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal." Id. To determine the defendant's need, courts should consider "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Id.
Here, Petitioner's claim for habeas relief is premised on the alleged ineffective assistance of his trial counsel in negotiating the plea agreement, in that counsel failed to accurately tally the number of Petitioner's prior strikes. (Pet. 6, ECF No. 4) The sought-after transcript is that from the Marsden motion hearing regarding Petitioner's request for appointment of different counsel on the same date that Petitioner entered into the plea agreement. Thus, Petitioner easily establishes the first prong necessary to demonstrate need. See Britt, 404 U.S. at 228 & n.3.*fn2 Moreover, Respondent does not offer any alternative devices available to Petitioner that serve the same function as a transcript. Petitioner is not required to rely on his memory of the hearing or any notes he may have taken at the time. See id. at 229 & n.4.
It is unclear from the lodgments whether a transcript of the Marsden hearing is readily available. (NOL No. 1 at 15 ("Marsden hearing held. . . . Court reporter's notes of this proceeding are ordered sealed and not to be transcribed unless by further order of the Court.")) But because Respondent did not oppose this motion, it is unclear what suitable alternatives might be available in lieu of an official reporter's transcript. The Court therefore ORDERS that a stenographic transcript of the Marsden hearing be prepared and provided to Petitioner at no cost.
Within twenty-eight days of the electronic docketing of this Order, Respondent SHALL FILE a notice of compliance with this Court's Order directing Respondent to provide a free copy of the transcript of the Marsden hearing to Petitioner. Petitioner shall have twenty-eight days from the date the notice of compliance is filed to file his objections to Magistrate Judge Lewis's Report and Recommendation.