United States District Court, Eastern District of North Carolina, Eastern Division
LOUISE W. FLANAGAN United States District Judge
This matter is before the court on petitioner's motion to appoint counsel and for evidentiary hearing, (DE 61), as well as petitioner's motion for transcripts (DE 67). Also pending before the court, but not yet ripe for decision, are petitioner's motion to vacate sentence, under 18 U.S.C. § 2255 (DE 45), the government's motion to dismiss (DE 55), and the memorandum and recommendation of the magistrate judge (DE 60), to which petitioner has filed objections. (DE 62). The government has obtained an extension until May 25, 2015, to respond to petitioner's objections, which extension was granted in part to enable the government to obtain and review petitioner's sentencing transcript.
A. Motion to Appoint Counsel
With respect to the motion to appoint counsel, the district court is authorized under 18 U.S .C. § 3006A(a)(2)(B) to appoint counsel to represent a habeas petitioner when the interests of justice so requires and the petitioner is financially unable to obtain representation. Under circumstances of this case, however, the court finds that this case does not presently require appointment of counsel. Therefore, the motion for appointment of counsel is DENIED.
B. Motion for Evidentiary Hearing
With respect to the motion for evidentiary hearing, the Rules Governing 2255 Proceedings provide that, if a § 2255 motion is not dismissed, the court must review the record to determine whether an evidentiary hearing is warranted. In this case, the magistrate judge has recommended granting the government's motion to dismiss, without evidentiary hearing. Accordingly, at this time, where objections to the magistrate judge recommendation are not yet ripe for ruling, an evidentiary hearing is not warranted. Therefore, the motion for evidentiary hearing is DENIED, without prejudice to its renewal should the § 2255 motion not be dismissed.
C. Motion for Transcripts
With respect to the motion for transcripts, petitioner seeks to have transcripts prepared of his plea hearing and his sentencing hearing, stating that he lacks sufficient funds to have transcripts prepared. Under the circumstances of this case, the court construes the motion as containing two separate categories of relief. First, petitioner seeks to have transcripts prepared. Second, petitioner seeks to have copies of such transcripts provided to him. The court will address each category of relief in turn.
1. Preparation of Transcripts
Concerning the preparation of transcripts, the court notes that a sentencing transcript has already been prepared and filed partly under seal on the docket. (See DE 65 & 66). Based upon the government's motion for extension of time to respond to objections, it appears that the government requested preparation of the transcript. Therefore, where a sentencing transcript has already been prepared and filed, petitioner's request to have a sentencing transcript prepared is DENIED as moot.
While no transcript of the arraignment hearing has yet been prepared or filed, based upon the claims and arguments raised the court finds that preparation of transcript of the arraignment hearing will advance the adjudication of this matter. Therefore, on the court's initiative, pursuant to 28 U.S.C. § 753(b), the court DIRECTS the clerk to obtain and file by June 3, 2015, a transcript of the court's April 12, 2012, arraignment hearing. As the court has determined on its own initiative that a transcript of the arraignment hearing is necessary, petitioner's request to have an arraignment transcript prepared is DENIED as moot.
2. Copies of Transcripts
Remaining for present decision is the issue whether petitioner may be entitled to free copies of the sentencing transcript, now filed, and the arraignment transcript, once it is filed. While a litigant generally must pay the court reporter a fee to have a transcript produced at his request, a court reporter "shall not charge a fee for any copy of a transcript delivered to the clerk for the records of court." 28 U.S.C. § 753(f). As noted on the docket in this case, the sentencing transcript has been made part of the records of the court, and it already is available for viewing at the court public terminal. (See DE 66). Section 753(f), ...