VANESSA L. BRYANT, District Judge.
In his motion dated September 9, 2015, Defendant Benjii Carr, pro se and incarcerated, moves for free transcripts, arguing that he needs his plea and sentencing transcripts to assert claims for ineffective assistance of counsel. As judgment was entered several months prior to the filing of this motion and no appeal was filed, the ineffective assistance claims may only be asserted in a 28 U.S.C. § 2255 motion. However, Carr has no right to transcripts until, inter alia, he files his Section 2255 motion and, based on that motion, the Court determines that his claims are not frivolous and that the requested transcripts are necessary to decide those claims. United States v. Horvath, 157 F.3d 131, 133 (2d Cir. 1998) ("We hold that a motion seeking transcripts pursuant to [28 U.S.C.] § 753(f) in relation to a contemplated § 2255 motion is not ripe until the § 2255 motion has been filed."); see United States v. MacCollom, 426 U.S. 317, 320-21 (1976) (plurality opinion). Because Carr has not filed a Section 2255 motion, his motion for transcripts is DENIED.
Ordinarily, the Court would liberally construe a pro se filing to raise the strongest arguments fairly suggested. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The strongest argument here would be that the motion for transcripts constitutes a Section 2255 motion and that Carr is entitled to transcripts because he believes that the claims therein are not frivolous.
Accordingly, within 35 days of this order, Carr must agree to permit the recharacterization of his instant motion for transcripts or, within 70 days of this order, file a Section 2255 motion stating all of his possible claims. See Adams, 155 F.3d at 584. Because the motion for transcripts is denied, the Court will take no further action if Carr fails to agree to the recharacterizartion or amend his current motion. If Carr choses to amend his petition by offering new support of his current claims or by raising new claims, the Court, for the purposes of calculating AEPDA's limitations period, will consider September 9, 2015 as the filing date for any claims "ar[ising] out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the [motion for transcripts]." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000). Carr should be aware that the Court has made no ruling with respect to whether his claims, as stated, are frivolous. Moreover, before the Court can grant any request for transcripts, Carr must file a motion for leave to proceed in forma pauperis ("IFP"). 28 U.S.C. § 753(f). Forms for filing Section 2255 and IFP motions are attached.
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are:
My gross pay or wages are: $ _____________, and my take-home pay or wages are: $ ____________________ per (specify pay period) ___________________ .
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
4. Amount of money that I have in cash or in a checking or savings account: $ ______________________________ .
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value):
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense):
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support:
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):
Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims.
(If petitioner is attacking a sentence based on a federal conviction to be served in the future, the petition should be filed in the federal court which entered the judgment.)
1) Name and location of the court which entered the judgment of conviction under attack: _____________________________________________________________________________________
2) Date judgment of conviction was entered ____________________________________________
3) Case number _______________________________________
4) Length and term of sentence _________________________________________________________
5) Are you presently serving a sentence imposed for a conviction other than the conviction under attack in this motion? Yes ___ No ____
6) Name of judge who imposed sentence under attack in this petition ____________________
7) Nature of the offense involved (all counts)__________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________
8) What was your plea? (check one) Not guilty ___ Guilty ___ Nolo Contendere ___
9) If you entered a guilty plea to one count or indictment, and a not guilty plea to another court or indictment, give details: _____________________________________________________________________________________________ _____________________________________________________________________________________________
10) If you entered a plea of guilty pursuant to a plea bargain, state the terms and conditions of the agreement __________________________________________________________________ _____________________________________________________________________________________________
11) Kind of trial (check one) Jury ___ Judge only ___
12) Did you testify at trial? Yes ___ No ___
13) Did you appeal from the judgment of conviction? Yes ___ No ___
14) If you did appeal, answer the following questions:
(b) State the issues raised: ____________________________________________
15) If you did not appeal, explain briefly why you did not: __________________________ _____________________________________________________________________________________________ _____________________________________________________________________________________________
16) Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? Yes ___ No ___
17) If your answer to 16 was "Yes," give the following information:
_____________________________________
18) State concisely every claim that you are being held unlawfully. Summarize briefly the facts supporting each claim. If necessary, you may attach extra pages stating additional claims and supporting facts. You should raise in this petition all claims for relief which relate to the conviction under attack.
19) If any of the claims listed in 16 were not previously presented, state briefly what claims were not so presented, and give your reasons for not presenting them: _________________________________________________________________________________________________ _________________________________________________________________________________________________
20) Do you have any petition, application, motion or appeal now pending in any court, either state or federal, regarding the conviction under attack?
Yes ___ No ___. If "Yes," state the name of the court, case file number (if known), and the nature of the proceeding: __________________________________________________________________ _________________________________________________________________________________________________ _________________________________________________________________________________________________
22) Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein:
(a) At preliminary hearing _________________________________________________ ______________________________________________________________________________________________
(b) At arraignment and plea ________________________________________________ ______________________________________________________________________________________________
(c) At trial _______________________________________________________________ ______________________________________________________________________________________________
(d) At sentencing _________________________________________________________ ______________________________________________________________________________________________
(e) On appeal ______________________________________________________________ ______________________________________________________________________________________________
(f) In any post-conviction proceeding ________________________________________ ______________________________________________________________________________________________
(g) On appeal from any adverse ruling in a post-conviction proceeding _____ ______________________________________________________________________________________________
23) Were you sentenced on more than one count of an indictment or on more than one indictment, in the same court and at the same time? Yes ___ No ___
24) Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes ___ No ___
Wherefore, petitioner prays that the Court grant him such relief to which he may be entitled in this proceeding.
The undersigned declares under penalty of perjury that he/she is the petitioner in this action, that he/she has read this petition and that the information contained in the petition is true and correct. 28 U.S.C. § 1746; 18 U.S.C. § 1621.
