United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
THE COURT is the Pro Se Motion Requesting Court
Transcripts at Government's Expense
(“Motion”) of Defendant Luis Sierra-Gonzalez
(“Defendant”). (Doc. 96). The Court notes that
this motion remains open on the criminal docket for the
above-referenced case although arguably long moot. The Court
will, however, address the Motion at this time. For the
following reasons, Defendant's Motion is
Luis Sierra-Gonzalez pled guilty to three counts of
possession of controlled substances with intent to distribute
and one count of conspiracy to possess with intent to
distribute quantities of cocaine, cocaine base, and
methamphetamine (18 U.S.C. § 2; 21 U.S.C. §§
841, 846). In addition, following a jury trial, he was found
guilty of two other counts, a firearm offense related to drug
trafficking (18 U.S.C. §§ 2, 924(c)) and an offense
alleging possession of a firearm while being an alien
illegally in the United States (18 U.S.C. §
922(g)(5)(A)). (See Docs. 59, 73, 83). Defendant
appealed, arguing: (1) the Court erred in denying his motion
for acquittal on the firearm charges; (2) his Sixth Amendment
rights were violated when his sentence was enhanced based on
a prior conviction that was not alleged in the indictment or
submitted to the jury, and (3) the Court erred in not
reducing his offense level for acceptance of responsibility.
(Doc. 91). The Fourth Circuit Court of Appeals affirmed
Defendant's convictions and sentence. (Id.). The
United States Supreme Court denied Defendant's petition
for writ of certiorari on June 12, 2006. Sierra-Gonzalez
v. United States, 547 U.S. 1198 (2006).
filed the instant Motion on February 2, 2007, requesting, at
government's expense, a copy of his court transcript
record to prepare a motion to vacate pursuant to 28 U.S.C.
§ 2255. (Doc. 96 at 2-3). Defendant moved under 28
U.S.C. § 753(f), which authorizes the provision of
transcripts to persons seeking relief under § 2255 in
certain circumstances. (See Id. at 1).
request was premature. Defendant did not have a § 2255
proceeding pending at the time he filed the Motion. 28 U.S.C.
§ 753(f) provides for payment of fees by the United
States in certain situations “in proceedings brought
under section 2255.” The Fourth Circuit, in unpublished
opinions, has stated that when a defendant has no motion to
vacate pending, that defendant is not eligible for
preparation of a transcript at government expense under 28
U.S.C. § 753(f). E.g., United States v.
Ortega, 536 F.App'x 335, 335 (4th Cir. 2013)
(unpublished per curiam) (citing United States v.
MacCollom, 426 U.S. 317, 319 (1976)); United States
v. Webb, 54 F.App'x 588, 588 (4th Cir. 2003)
(unpublished per curiam) (citing United States v.
Horvath, 157 F.3d 131, 132-33 (2d Cir. 1998)); In re
O'Kane, 91 F.3d 132, 1996 WL 379674, at *1 (4th Cir.
June 27, 1996) (Table) (citing MacCollom, 426 U.S.
at 321-22). This Court, in United States v.
Velasquez, 2012 WL 3307264, at *1, *1 n.2 (W.D. N.C.
Aug. 13, 2012) (citations omitted), noted that courts within
this circuit have held that a motion for a free transcript
pursuant to 28 U.S.C. § 753(f) is not ripe until a
§ 2255 motion has been filed. This ground alone is
sufficient to deny Defendant's Motion. For the same
reasons, 28 U.S.C. § 2250, which was not raised by the
Defendant, would not apply as there was no pending
application for a writ of habeas corpus.
in order to receive transcripts at government's expense,
the trial judge or a circuit judge must certify “that
the suit or appeal is not frivolous and that the
transcript is needed to decide the issue presented by the
suit or appeal.” 28 U.S.C. § 753(f) (emphasis
added). A document filed pro se is to be
“liberally construed.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Defendant's
Motion, however, specifically and explicitly identified the
reasons underlying Defendant's request for the
requested his court transcripts in order to challenge two
issues in a § 2255 motion: (1) whether this Court erred
in denying a three (3) point sentencing reduction for
acceptance of responsibility; and (2) whether this Court had
the authority to enhance Defendant's sentence for a prior
felony drug conviction not alleged in the Indictment,
admitted by him, or made part of his plea agreement or jury
determination. (Doc. 96 at 3). Defendant indicated no other
challenges that he intended to raise in a § 2255 motion.
Defendant's proposed challenges were directly addressed
by the Fourth Circuit Court of Appeals which, approximately
one year prior to the instant Motion, affirmed both this
Court's refusal to apply a three (3) point sentencing
reduction for acceptance of responsibility and this
Court's sentencing enhancement based upon Defendant's
prior conviction regardless of whether that prior conviction
was alleged in the indictment or submitted to the jury. (Doc.
91 at 4-5; United States v. Sierra-Gonzalez, 166
F.App'x 52, 53-54 (4th Cir. 2006)).
a change in the law, a prisoner is not permitted to
relitigate in a collateral proceeding an argument rejected on
direct appeal. United States v. Roane, 378 F.3d 382,
396 n.7 (4th Cir. 2004) (“Because the Defendants have
not pointed to any change in the law that warrants our
reconsideration of these claims, we agree with the district
court that they cannot relitigate these issues.”);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976) (criminal defendant cannot “recast,
under the guise of collateral attack, questions fully
considered by this court” in a previous
appeal). Because the Fourth Circuit already
affirmed the only two challenges Defendant indicated he
intended to raise in a § 2255 motion, those challenges
would be procedurally barred, and therefore frivolous. As set
out above, the questions set forth by Defendant as grounds
for granting his Motion were fully considered by the Fourth
Circuit Court of Appeals in his earlier appeal. Defendant has
demonstrated no other justification for the Court to grant
his Motion. Defendant, therefore, is not entitled to
transcripts at government expense.
THEREFORE, ORDERED that Defendant's Motion Requesting
Court Transcripts Record at Government Expense Pursuant to 28
U.S.C. § 753(f) (Doc. 96) is DENIED.
 28 U.S.C. § 2250 provides, in
relevant part, that “[i]f on any application for a writ
of habeas corpus an order has been made permitting the
petitioner to prosecute the application in forma pauperis,
the clerk . . . shall furnish . . . certified copies of such
documents . . . on file in his office as may be required by
order of the judge.” At the time Defendant filed the
Motion, he had not filed under § 2255, let alone
obtained an order permitting him to proceed in forma pauperis
with respect to such a proceeding. Parenthetically, Defendant
did file a § 2255 motion on June 24, 2016. (Doc. 129).
The Court dismissed the motion as untimely. (Doc. 130; Case
No. 5:16-cv-00128-RLV, Docs. 3, 4 (Nov. 1, 2016)). No further
action related to Defendant has taken place on the docket in
 Defendant's Motion referenced
“Booker” in connection with the enhancement of
his sentence in light of a prior conviction. (Doc. 96 at 2).
The Fourth Circuit Court of Appeals, however, considered
United States v. Booker,543 U.S. 220 (2005), in
Defendant's prior appeal, holding that Defendant's
argument was, in fact, ...