United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's
Motion for a Free Court Reporter's Records [Doc. 8],
Petitioner's Motion for Leave to Supplement 28 U.S.C.
§ 2255 Motion [Doc. 11], and Petitioner's Motion for
Status Report or Hearing, which also includes a motion to
appoint counsel [Doc. 12].
has filed a Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255. [Doc. 1]. The Government filed a
Response in opposition to the Motion to Vacate and, on August
15, 2018, this Court issued an Order notifying the Petitioner
of his right to reply to the Government's Response and
setting a deadline for that reply. [Doc. 4]. Subsequently,
Petitioner moved for an extension of time to file his reply
and for certain records and transcripts of the trial
proceedings. [Doc. 8, 10]. Petitioner also moved to
supplement his § 2255 Motion to Vacate. [Doc. 11].
Petitioner recently filed a Motion for Status Report of
Hearing. [Doc. 12].
Petitioner seeks a free copy of a significant portion of the
trial proceedings in his underlying criminal matter, as well
as several other records in that case. [Doc. 8]. In order for
an indigent habeas petitioner to receive transcripts at
government 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);
see also United States v. Parker, 273 Fed.Appx. 243
(4th Cir. 2008) (“An indigent defendant is entitled to
free transcripts from his criminal proceedings only upon a
showing of a particularized need for the transcript.”).
Here, Petitioner states he needs a copy of the requested
transcripts and documents because he was never provided a
copy by his attorney and, until recently, he was borrowing a
copy of the necessary records from one of his co-defendants,
who was housed in the same facility as Petitioner.
Petitioner's co-defendant has been transferred to another
facility and, as such, Petitioner no longer has access to the
records. [Doc. 8 at 3]. Petitioner further argues that the
Court has ordered that Petitioner may file a reply to the
Government's Response and that Petitioner needs access to
the case records “as a matter of fairness and due
process because the Government cites several portions of the
trial transcripts and trial records in its response to
Petitioner's 2255 motion….” [Id.].
Without access to the same records as the Government,
Petitioner states he cannot prepare a meaningful reply.
[Id. at 3-4]. Because Petitioner has shown a
particularized need for the records he requests, the Court
will grant Petitioner's motion for free copies of the
portions of the record and trial proceedings.
support of his motion to supplement his § 2255 Motion to
Vacate, Petitioner argues that since “the filing of
Movant's 2255 motion and after the government's
response, movant has become aware of several jurisdictional
and actual innocence challenges to his RICO conviction,
” which “may be raised at any time during the
proceedings.” [Doc. 11 at 1]. Petitioner submitted a
Supplement to 28 U.S.C. § 2255 Motion with his motion.
[Doc. 11-1]. The Supplement submitted by Petitioner primarily
rehashes arguments previously made or that should have been
raised, if at all, in his original § 2255 Motion to
Vacate and appears to lack any legitimate jurisdictional or
actual innocence challenges. Nonetheless, the Court will
grant Petitioner's motion to supplement his § 2255
Motion to Vacate. On motion by the Government, the Government
will be allowed to file a surreply to Petitioner's reply
should Petitioner rely, properly or not, on any grounds
presented in his Supplement.
Petitioner's motion for a status report, Petitioner seeks
a status report on his outstanding motions, which has been
provided by the terms of this Order. The Court will,
therefore, deny Petitioner's motion for a status report
also moves for the appointment of counsel. [Doc. 12 at 2].
Petitioner, however, states no grounds for such appointment.
[See id.]. In § 2255 actions, appointment of
counsel is governed by the Rules Governing § 2255
Proceedings, Rules 6(a) and 8(c), which mandate the
appointment of counsel where discovery is necessary or if the
matter proceeds to an evidentiary hearing. Id.
Moreover, there is no constitutional right to the appointment
of counsel in a § 2255 proceeding. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). The Court may appoint
counsel to a financially eligible habeas petitioner if
justice so requires. See 18 U.S.C. §
3006A(a)(2)(B). This Court finds that Petitioner has not
shown that appointment of counsel is appropriate in this
case. The Court, therefore, denies Petitioner's motion to
IS, THEREFORE, ORDERED that:
Petitioner's Motion for a Free Court Reporter's
Records [Doc. 8] is GRANTED and the Clerk is
respectfully instructed to provide one (1) copy of the
following records in Criminal No. 3:08-cr-00134-RJC-4 to
Petitioner: Docket Nos. 623, 842, 1075, 1076, 1077, 1078,
1080, 1085, 1273, 1423, 1467, 1468, and 1573.
Court certifies that Petitioner's suit is not frivolous
and that the transcripts are needed to decide the issue
presented by the suit. 28 U.S.C. § 753(f).
Petitioner's Motion for Leave to Supplement 28 U.S.C.
§ 2255 Motion [Doc. 11] is GRANTED
Petitioner's Motion for Status Report or Hearing [Doc.
12] is DENIED as moot.
Petitioner's motion for appointment of counsel [Doc. 12]
Petitioner shall have forty-five (45) days from the date of
provision of the requested records in accordance with this
order to ...