TIMOTHY S. BLACK, District Judge.
This criminal case is before the Court on Defendant's motions for transcripts, documents, and appointment of counsel. (Docs. 249, 291, 292, 298, 299). Defendant states that he intends to file a motion to vacate pursuant to 28 U.S.C. § 2255 and, therefore, requests a transcript of his sentencing hearing, Presentence Investigation Report, sentencing memorandum, indictment, copies of various cases and secondary legal sources, and the appointment of counsel.
On March 19, 2014, Defendant Tony Dickinson and ten co-defendants were charged in a one-count indictment with conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), (B)(i), and (c); all in violation of 21 U.S.C. § 846. (Doc. 13). Defendant was appointed counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. (Doc. 112).
On July 14, 2014, Defendant appeared before the Court and pled guilty to the sole count pursuant to a Rule 11(c)(1)(C) plea agreement.
Defendant's sentencing hearing was held on December 10, 2014. (Doc. 197). At the time of sentencing, the parties jointly asked to modify the terms of the plea agreement in order to reduce the proposed term of imprisonment from ninety-six (96) months to eighty-seven (87) months. (Id.) The Court ultimately accepted the plea agreement as modified, and sentenced Defendant to eighty-seven (87) months imprisonment, as well as four (4) years of supervised release. (Id.; Doc. 201). Defendant did not file a notice of appeal, and the time for doing so has passed.
On May 14, 2015, Defendant filed a motion requesting a transcript of his sentencing hearing.
First, Defendant asks the Court to provide him with a transcript of his sentencing hearing, so that he may file a motion to vacate pursuant to 28 U.S.C. § 2255.
"[A]s a matter of equal protection . . . the [government] must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal." Britt v. North Carolina, 404 U.S. 226, 227 (1971); accord United States v. Johnson, 584 F.2d 148, 157 (6th Cir. 1978) ("[i]t is well settled that an indigent criminal defendant is entitled to a transcript of prior proceedings, at the government's expense, if it is reasonably necessary to present an effective defense at the subsequent proceeding"). Additionally, an indigent criminal defendant has a statutory right to obtain transcripts, without cost, for purposes of appeal or collateral attack, if the defendant is proceeding either under the Criminal Justice Act (18 U.S.C. § 3006A), or in forma pauperis (28 U.S.C. § 1915). See 28 U.S.C. § 753(f).
An indigent defendant is not required to set forth a "particularized need" for the transcripts requested. Britt, 404 U.S. at 228. However, the underlying rationale for providing transcripts at no cost is that, "differences in access to the instruments
Accordingly, the Court is not required to provide transcripts to a defendant before he has asserted a facially viable claim. See, e.g., United States v. MacCollom, 426 U.S. 317, 321 (1976) (holding that 28 U.S.C. § 753(f) authorizes the district court to furnish transcripts out of public funds for indigent defendants who have filed § 2255 motions only
Here, Defendant does not have an appeal, collateral attack, or any other related proceeding currently pending. Rather, Defendant requests a transcript of his sentencing hearing in order to prepare his § 2255 motion in the first instance. Further, while Defendant states that he intends to assert a claim for ineffective assistance of counsel, he offers no insight as to how the sentencing transcript relates to that, or any other claim. The Court acknowledges that Defendant is not required to set forth a "particularized need" for his request; however, he is also not entitled to a transcript at the government's expense until he has shown that he is legitimately attempting to "vindicate a legal right."
As Defendant has not yet filed his motion to vacate, nor has he demonstrated that he has a non-frivolous claim to assert, Defendant is not entitled to a free transcript. Accordingly, Defendant's request for a sentencing transcript is presently denied.
Defendant asks the Court to appoint counsel to assist him in filing his motion to vacate. (Docs. 292, 298).
An indigent defendant does not have a constitutional right to counsel in postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Pursuant to the Rules Governing Section 2255 Cases, the Court must appoint counsel only if such appointment is necessary for effective discovery, or if an evidentiary hearing is warranted. See Section 2255 Rules 6(a), 8(c). Otherwise, the decision to appoint counsel under the Criminal Justice Act (18 U.S.C. § 3006A) in § 2255 cases is within the Court's discretion. See 18 U.S.C. § 3006A(a)(2)(B) ("[w]henever the United States magistrate judge or
Here, as previously stated, Defendant has not yet filed his motion to vacate. Accordingly, Defendant is not entitled to counsel under any of the circumstances specified in the Rules Governing Section 2255 Cases. Additionally, Defendant neither offers, nor does the Court find any reason why, the interests of justice would require appointment counsel in this particular case. Therefore, Defendant's request for appointed counsel is denied.
Finally, Defendant asks the Court to provide him with documents, including his PSR, indictment, sentencing memorandum, and copies of various cases and secondary sources. (Docs. 249, 291, 292, 298, 299).
An indigent defendant who has filed a § 2255 motion is entitled to receive copies of court documents from the court clerk without cost. See 28 U.S.C. § 2250 ("the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office as may be required by order of the judge").
First, Defendant requests a copy of his PSR, in order to prepare his motion to vacate. (Docs. 249, 291, 292, 298, 299).
The preparation of a PSR is generally required before the Court imposes sentence in a criminal case. Fed. R. Crim. P. 32 (c)(1). The PSR must provide information regarding the application of the advisory sentencing guidelines, as well as the defendant's history, characteristics, criminal record, financial status, offense conduct, and anything else that may be relevant to the Court's assessment of the 18 U.S.C. § 3553(a) factors. Fed. R. Crim. P. 32(d). In short, the PSR is a critical document to sentencing proceedings and, accordingly, will likely contain relevant information to a defendant's § 2255 motion. However, the Court notes that the PSR is also a confidential document, which often contains sensitive information regarding the defendant and the offense.
Here, as an initial matter, the Court is reluctant to provide Defendant a copy of the PSR when possession of the document is so highly regulated in federal facilities for reasons of safety and security.
Accordingly, Defendant's request for a copy of his PSR is denied at this time.
Next, Defendant requests a copy of his sentencing memorandum. (Docs. 249, 291, 292, 298, 299). Neither the indictment (Doc. 13), nor the sentencing memorandum (Doc. 186), are filed under seal, nor with any access restrictions. While Defendant has not yet filed his § 2255 motion so as to trigger any right to court documents at no cost, the Clerk's office has previously sent Defendant copies of his plea agreement and judgment. Accordingly, the Court grants Defendant's additional requests for his indictment and sentencing memorandum.
Finally, Defendant's most recent motion includes a list of cases and secondary sources, which Defendant asks the Court to provide for him.
"It is well established that prisoners have a constitutional right to access the courts." Coleman v. Governor of Michigan, 413 F. App'x. 866, 874 (6th Cir. 2011) (citing Bounds v. Smith, 430 U.S. 817, 821-22 (1977)). "[A]dequate law libraries are
Here, Defendant provides a list of specific cases and secondary sources, which he believes will support his § 2255 motion. (Doc. 298 at 2). However, the specificity of Defendant's request demonstrates that he has access to legal information or assistance.
Accordingly, Defendant's request for the Court to provide him with legal research is denied.
The Court notes that Defendant's difficulty in accessing research and court documents is largely the result of his current detention in a county facility, and will likely be resolved once Defendant's pending federal case has concluded and he is moved to a BOP facility. Therefore, the Court declines to expend government resources to provide Defendant with tools not constitutionally required, that he will gain access to in due course, and which he may never even need.
Moreover, once Defendant files his § 2255 motion, the Court will be in a position to assess Defendant's claims and provide him with any necessary tools, including, if appropriate, access to court documents, transcripts, and counsel. However, Defendant is not entitled to, and the Court will not provide, such resources until such time as Defendant demonstrates that he is indeed attempting to vindicate his legal rights by asserting non-frivolous claims.
Based upon the foregoing, the Court
Id. at 16-17. However, in compliance with federal law, all BOP facilities provide inmates with a reasonable opportunity to access their PSRs, and other sentencing documents, by submitting an appropriate request to unit staff. Id. at 17. Program Statement 1351.05 details the procedures for requesting access to PSRs, SORs, and other sentencing documents. Id. at 17-19. Under any other circumstances, inmates found to be in possession of prohibited documents are subject to disciplinary action. Id. at 16.
