USCA1 Opinion
August 5, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1205
UNITED STATES,
Appellee,
v.
BARBARA BUSHWAY DE SOUZA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Barbara Bushway De Souza on brief pro se.
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Peter E. Papps, United States Attorney, on Motion for Summary
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Disposition, for appellee.
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Per Curiam. Barbara Bushway Desouza pled guilty in
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1992 to drug charges and was sentenced. She did not appeal
her sentence directly. However, Desouza brought a motion
under 28 U.S.C. 2255, alleging that a Sentencing Guideline
amendment permitting an additional one-level reduction in
base offense level for acceptance of responsibility should be
applied to reduce her sentence. The district court denied
her motion because the amendment became effective after she
was sentenced and could not be applied retroactively. We
affirmed in United States v. Desouza, -- F.2d -- (1st Cir.
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1993). Before our decision was rendered, Desouza petitioned
the district court to have certain transcripts prepared at
government expense, averring that she needed the transcripts
to "prepare [a] motion in order to secure my rights under the
law." The district court denied her request because she had
not given any reason why the transcripts should be prepared
at government expense. Desouza has appealed. We now affirm.
The district court's denial of Desouza's motion was
proper under our case law. In Ellis v. State of Maine, 448
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F.2d 1325, 1327 (1st Cir. 1971), we held that a habeas
petitioner alleging simply that his rights had been infringed
had no right to a free transcript without showing more
specifically that his claim had some merit. We stated:
As to the request for a transcript, it is
important to note that we are not here
concerned with a direct appeal from a
conviction, or a state habeas which takes
the place of such an appeal, where a
transcript may be a matter of right
without showing merit in the appeal.
[Citation omitted.] Appellant's petition
is wholly for collateral relief. For
this unusual and exceptional relief there
should be a burden upon the petitioner to
come into court with his case, not simply
to try to make one out. This does not
mean, of course, with his full case, but
he must show merit, not just personal
opinion.
Id. In her motion to the district court, Desouza stated only
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that she needed the transcripts to prepare a motion to
"secure [her] rights." Thus, she has not even alleged that
her rights have been violated, as the unsuccessful petitioner
in Ellis did, nor, obviously, has she given any details
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suggesting that she could make out a case that her rights had
been infringed. Her brief to this court is no more specific.
It states only that she is preparing a section 2255 motion
and that "[i]n order to be able to address the right issues
and effectively and accurately present [my] case . . . , [I]
need[] to refer to [the] transcripts . . . ." Because
Desouza, who is seeking collateral relief, has not even
described in general terms what the nature of her claim is,
let alone given any specific facts to show that she has some
meritorious claim, it is clear that the district court acted
properly in denying her request for a free transcript.
We note further that Desouza's motion for free
transcripts would also have been properly denied under 28
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U.S.C. 753(f). That statute permits the provision of free
transcripts to indigents pursuing their section 2255 rights
under certain circumstances.1 It states:
Fees for transcripts furnished in
proceedings brought under section 2255 of
this title to persons permitted to sue or
appeal in forma pauperis shall be paid by
the United States out of money
appropriated for that purpose if the
trial judge or a circuit judge certifies
that the suit or appeal is not frivolous
and that the transcript is needed to
decide the issue presented by the suit or
appeal.
Thus, under section 753(f) Desouza would be entitled to a
free transcript only if the district court had determined
(or, presumably, if this court upon appeal were to determine)
that her section 2255 motion was not frivolous and that the
requested transcripts were necessary to decide her motion.
The Supreme Court has held that the requirements imposed on
indigents seeking transcripts which are contained in this
provision of section 753(f) are constitutional. See United
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States v. MacCollom, 426 U.S. 317, 325 (1976) (plurality
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decision). Since Desouza has not described the basis for her
suit or any specific facts which might support a section 2255
motion, we cannot say that her motion would not be frivolous
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1. The record does not show whether the district court
granted Desouza's application to proceed in forma pauperis in
seeking the transcripts. In light of other information
contained in the record, however, we may assume either that
the court granted her IFP application or that it would have
done so.
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or that the transcripts would be necessary to decide her
motion. Thus, we conclude that the district court acted
properly in denying her motion for free transcripts. See id.
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at 326 (had the section 2255 petitioner provided the district
court with some factual allegations respecting his claim of
ineffective assistance of counsel, and not merely with
conclusory allegations, and had he stated explicitly what his
counsel's error was, the court might have concluded that his
claim was not frivolous and that a free transcript should be
furnished); Sistrunk v. United States, 992 F.2d 258, 259
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(10th Cir. 1993) (a conclusory allegation that a defendant
was denied effective assistance of counsel does not satisfy
the requirements of section 753(f)).2
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2. Because Desouza failed to make any showing that her
section 2255 motion would not be frivolous or that the
requested transcripts would be necessary to decide her
motion, we need not decide whether she should have brought
her section 2255 motion before seeking to obtain the
transcripts. See Sistrunk, 992 F.2d at 259 (citing cases
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which have held that the actual filing of the habeas petition
is a necessary prerequisite to seeking free transcripts under
section 753(f), but not deciding whether to adopt that
interpretation in light of petitioner's failure to satisfy
the statutory prerequisites); see also United States v.
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Chambers, 788 F. Supp. 334 (E.D. Mich. 1992) (discussing the
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conflict on this point among the circuit courts). Similarly,
because Desouza seeks the preparation of transcripts and not
simply a copy of transcripts already in existence, there is
no need to consider whether, not meeting the requirements of
section 753(f), she could obtain free transcripts under
section 753(b). See Rush v. United States, 559 F.2d 455, 458
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(7th Cir. 1977) (reversing the district court's denial of
petitioner's motion for free transcripts under section
753(f); because the transcripts were already in existence,
the court of appeals held that the petitioners, whose
conclusory allegations respecting their section 2255 motion
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The judgment of the district court is affirmed.3
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did not meet the requirements of section 753(f), had a right
to the transcripts under section 753(b), which provides that
"the original records" in the clerk's office must be open to
inspection "by any person without charge"). The Rush
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decision has been criticized. See Sistrunk, 992 F.2d at 260;
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United States v. Losing, 601 F.2d 351, 352-53 (8th Cir.
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1979).
3. Because Desouza has not said what grounds she has for
bringing a second section 2255 motion, we cannot say whether
her motion would be likely to be dismissed under Rule 9 of
the Rules Governing 2255 Proceedings, given her previous
section 2255 motion, as the government argues.
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