United States District Court, D. Minnesota
ORDER DENYING DEFENDANT'S MOTION FOR TRANSCRIPTS
AND CASE FILE
Wilhelmina M. Wright United States District Judge
the Court is Defendant Martrell Devon Burns's motion for
the production of transcripts and case file at the
government's expense. (Dkt. 78.) Burns requests the Court
to direct his former, court-appointed defense counsel to make
such production or, alternatively, to order such production
to “assist [him] in drafting” pro se
motions on appeal and in habeas corpus proceedings. The Court
denies Burns's motion for the reasons addressed below.
December 6, 2018, Burns pleaded guilty to one count of felon
in possession of a firearm, a violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The Court sentenced
Burns to 70 months in prison and ordered the forfeiture of
the firearm. Burns was represented during these criminal
proceedings by his court-appointed counsel, Shannon Elkins.
On June 24, 2019, Burns filed a pro se motion
seeking the production of the transcripts and case file in
this criminal matter. Burns's motion is unopposed.
seeks copies of various transcripts and materials in his case
file at the government's expense to “assist [him]
in drafting” pro se motions on appeal and in
habeas corpus proceedings. As Burns is proceeding pro
se on this motion, the Court liberally construes his
motion and the accompanying pleading. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Court Proceeding Transcripts
defendant in a federal criminal case is not automatically
entitled to free copies of transcripts for use in his or her
appeal or habeas corpus proceedings. See Sistrunk v.
United States, 992 F.2d 258, 259 (10th Cir.
1993) (“[W]hether the appellant is entitled to a free
transcript depends on whether he satisfied the requirements
of [28 U.S.C. §] 753(f).”). Rather, Burns's
request is governed by 28 U.S.C. § 753(f), which
Fees for transcripts furnished in [habeas] 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. Fees for
transcripts furnished in other proceedings to
persons permitted to appeal in forma pauperis shall also be
paid by the United States if the trial judge or a circuit
judge certifies that the appeal is not frivolous (but
presents a substantial question).
Id. (emphases added).
express terms, Section 753(f) is not implicated until the
defendant has filed an appeal or a habeas corpus petition and
has been granted leave to proceed in forma pauperis. See
id.; United States v. Barnett, 389 Fed.Appx.
575, 575 (8th Cir. 2010) (per curiam) (holding that defendant
is not entitled to copies of court records at government
expense in advance of filing a habeas petition); Maus v.
Baker, 729 F.3d 708, 709 (7th Cir. 2013)
(“[Section 753(f)] allows an appellant . . . to obtain
a transcript without charge only if he is proceeding in forma
pauperis.”). After these initial showings are made, the
indigent defendant seeking transcripts at the
government's expense must also establish his or her
entitlement to such materials by establishing that the
transcripts are required to decide the issues presented by a
non-frivolous habeas corpus petition or, in the case of an
appeal, that “the appeal is not frivolous (but presents
a substantial question).” See 28 U.S.C. §
753(f); United States v. Losing, 601 F.2d 351, 353
(8th Cir. 1979) (per curiam) (holding that a prisoner may
receive free transcripts “only after judicial
certification that they are required to decide the issues
presented by a non-frivolous pending case”);
Maloney v. E. I. DuPont de Nemours & Co., 396
F.2d 939, 940 (D.C. Cir. 1967) (per curiam) (“Before a
free transcript can be furnished . . ., the appeal must be
permitted in forma pauperis, and the required
certification must be made.”). None of these conditions
is met in this case.
has not filed an appeal with the United States Court of
Appeals for the Eighth Circuit or a habeas corpus petition
with this Court. Nor has he been granted leave-by either this
Court or the Eighth Circuit-to proceed in forma pauperis. And
Burns's motion papers do not provide any information
about the claims that Burns intends to file in support of his
appeal or habeas corpus petition. As a result, the Court
cannot determine whether Burns's appeal or petition would
be frivolous or whether the transcripts he requests would be
needed to decide an issue relevant to any petition. See
Losing, 601 F.2d at 353 (“[A] prisoner has no
absolute right to a transcript to assist him in the
preparation of a collateral attack on his conviction, and . .
. constitutional requirements are met by providing such
materials only after judicial certification that they are
required to decide the issues presented by a non-frivolous
has failed to satisfy any of the conditions necessary for the
production of transcripts at the government's expense
under 28 U.S.C. § 753(f). Accordingly, the Court denies
Burns's motion as to his request for free transcripts.
Burns may re-submit the motion to seek those materials after
he has filed a non-frivolous appeal or habeas corpus petition
and has been granted leave to proceed in forma pauperis.
Until then, his motion is premature and is denied without