United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE DEFENDANT'S
FIRST MOTION FOR EXTENSION OF TIME AND MOTION FOR TRANSCRIPTS
(ECF NO. 95)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
Ernesto Valencia Madriz (“Madriz” or
“Petitioner”) is a federal prisoner proceeding
pro se. On July 21, 2015, on the eve of trial, he pled guilty
to two counts of a four-count Second Superseding Indictment:
Count 3, which alleged conspiracy to distribute
methamphetamine; and Count 4, which alleged possession with
intent to distribute methamphetamine. ECF Nos. 66 and 70. On
October 13, 2015, he was sentenced to 188 months
imprisonment, the low end of the guidelines range found
applicable to Petitioner based upon the nature of the offense
and Petitioner's criminal history. ECF No. 74. The
judgment and commitment were entered October 21, 2015. ECF
19, 2017, Petitioner filed a motion to vacate his conviction
and sentence pursuant to 28 U.S.C. § 2255. ECF No. 84.
On September 25, 2017, the United States moved to dismiss
Petitioner's motion to vacate his conviction as barred by
the applicable statute of limitations. ECF No. 91. On October
16, 2017, Petitioner filed the instant motion for an
extension of time to respond to the motion to dismiss and to
supply him transcripts from the change of plea hearing and
from the sentencing hearing, “so that the Defendant can
prepare and reply to the government's
answer.” ECF No. 95 at 2.
request for free copies of the plea hearing and sentencing
transcripts are governed by 28 U.S.C. § 753(f), which
provides that the United States shall pay the fee for
transcripts furnished in criminal proceedings under the
Criminal Justice Act (18 U.S.C. § 3006A) or in a
non-frivolous habeas corpus proceedings where the defendant
has been permitted to proceed in forma pauperis. United
States v. Lucatero, No. CR. S-05-0443 WBS, 2007 WL
1747077, at *1 (E.D. Cal. June 18, 2007) (citing 28 U.S.C.
§ 753(f)). 28 U.S.C. § 753(f) further provides that
fees for transcripts in § 22554 proceedings shall be
paid by the United States under the statute if the defendant
is “permitted to sue or appeal in forma pauperis,
” and “if the trial judge . . . certifies”
that (1) “the suit or appeal is not frivolous”
and (2) “that the transcript is needed to decide the
issue presented by the suit or appeal.” See also
Britt v. North Carolina, 404 U.S. 226, 227 (1971)
(finding that an indigent prisoner must, as a matter of equal
protection, be provided “with a transcript of prior
proceedings when that transcript is needed for an effective
defense or appeal”).
brought under Section 2255 carry a one-year statute of
limitations. Where the defendant does not take a direct
appeal, the judgment of conviction becomes final when the
time for filing a notice of appeal expires. Randle v.
Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010).
Therefore, because Petitioner did not take a direct appeal,
his judgment of conviction became final on November 4, 2015.
See id.; see also Fed. R. App. Pro.
4(b)(1)(A)(i). Petitioner did not file his 2255 petition
until May 19, 2017, after the statute of limitations had run,
and the United States has moved to dismiss on the grounds
that the Petitioner's motion was untimely and that
Petitioner has failed to demonstrate that his claim should be
equitably tolled. ECF No. 91. The Ninth Circuit has held that
the statute of limitations in 2255 proceedings may be
equitably tolled where “(1) the petitioner has
diligently pursued his rights, and (2) extraordinary
circumstances exist.” United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010)
(citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)).
failure to timely move within one year of the final judgment
thus may be excused if he can demonstrate that equitable
tolling applies. Petitioner has offered nothing to indicate
that the transcripts of his plea hearing or sentencing
hearing will contain information relevant to his ability to
prove (1) that he acted diligently following
sentencing to pursue his rights and (2) that
extraordinary circumstances exist. Therefore, the transcripts
are not “needed to decide the issue presented by the
suit.” 28 U.S.C. § 753(f). Petitioner's
request for transcripts is DENIED WITHOUT PREJUDICE to a
renewed request based on different circumstances.
reasons set forth above, (1) Petitioner's request for
copies of the transcripts of the plea hearing and sentencing
hearing is DENIED;
Petitioner's request for an extension of time to respond
to the motion to dismiss is GRANTED. Petitioner shall have 30
days from the date of this order to file an opposition to the
Government's Motion to Dismiss Defendant's Motion to
Vacate Sentence as Barred by the Statute of Limitations (ECF
No. 91), and the Government shall have 30 days from the date
the opposition is filed to submit a reply.
 The court has previously denied Mr.
Madriz's request for transcripts under 28 U.S.C. §