Maccollom v. U.S., 73--1659

• Decision Date: 02 August 1974
• Docket Number: No. 73--1659,73--1659
• Parties: Colin F. MacCOLLOM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1116

511 F.2d 1116

Colin F. MacCOLLOM, Appellant, v. UNITED STATES of America, Appellee.

No. 73--1659.

United States Court of Appeals Ninth Circuit.

Aug. 2, 1974.

Rehearing and Rehearing En Banc

Denied Feb. 26, 1975.

John A. Strait (argued), Public Defender, Seattle, Wash., for appellant.

Charles F. Mansfield (argued), Asst. U.S. Atty., Seattle, Wash., for appellee.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and TAYLOR, ^* District Judge.

ALFRED T. GOODWIN, Circuit Judge:

Colin F. MacCollom appeals from the dismissal of his action for declaratory and injunctive relief. He seeks preparation at government expense, of a verbatim transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255. We hold that he has the right to such a transcript, reverse, and remand the case.

MacCollom was convicted in the United States district court and was confined in 1970. Because he took no appeal, MacCollom did not request a transcript until March 1972, when he filed a 'motion for transcript in forma pauperis.' The clerk of the court notified MacCollom that until he filed a motion under 28 U.S.C. § 2255, the court had no power to act on his request. MacCollom then filed his complaint for declaratory and injunctive relief. His motion to proceed in forma pauperis was granted, and an attorney was appointed to assist him; but, on the government's motion, the district court dismissed the action for failure to state a claim upon which relief could be granted. Counsel has candidly argued that he cannot represent to the court that specific constitutional grounds for relief exist until after he has seen a transcript. The present state of the law seems to tell him that he must discover some constitutional claim and assert it before he can see the transcript.

The right of an indigent to receive at government expense a stenographic transcript of his criminal trial has been the subject of a number of Supreme Court decisions over the past eighteen years. ¹ Beginning with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Court has consistently held that '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' 351 U.S. at 19, 76 S.Ct. at 591. Later cases, reasoning from equal-protection and due-process principles have expanded the indigent's right to a free transcript for use in a direct appeal. Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (per curiam), held that a trial transcript, which under Washington procedure had to be filed with an appeal, could not be denied merely because the trial judge did not believe that an appeal would promote justice. Five years later, in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), a revised Washington procedure came up for review. There, the Court held that a trial judge's determination that an indigent's appeal was frivolous could not be substituted for appellate examination of a record full enough for the appellate court to draw its own conclusions. The next year, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), the Court held on statutory grounds that in the federal courts an attorney newly appointed on appeal was entitled to a full trial transcript. Five years later, the Court extended Griffin to include an appeal from a drunkendriving conviction. Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.ed.2d 440 (1969) (per curiam). Finally, in Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), the Court reaffirmed its earlier holdings, stating that though a state need not provide an indigent with a trial transcript if other alternatives would provide him with adequate and effective appellate review, when the appellant shows a colorable need for the full transcript, the state has the burden of showing that only part of it or some substitute would be adequate.

Meanwhile, Griffin's constitutional principle was being extended to appeals from the denial of collateral relief. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the Court held that a state prisoner was entitled to an appeal from the denial of a writ of error coram nobis in state court, even though the public defender who represented him at the time that the writ was denied believed that an appeal was useless and refused to order the required transcript. Two years later, in Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966), the Court held that an indigent state habeas petitioner was entitled to a transcript of the hearing on his petition in order to appeal a denial of the writ. (Because a full transcript of the hearing was available, the Court did not consider whether a substitute would suffice.) Finally, in Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969), the Court held that where state law did not permit an unsuccessful habeas applicant to appeal directly but did permit him to file a new petition at the next appellate level, the state must furnish a verbatim record of the first habeas hearing, absent a showing that an alternative would be an adequate substitute.

Other Supreme Court decisions conferred the rights to a free transcript of a preliminary hearing, Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (per curiam), and stated that where an adequate alternative did not exist the defendant was entitled to a transcript of a mistrial. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).

Where a state prisoner petitions federal courts for habeas corpus relief, the federal district court must hold an evidentiary hearing to make its own findings of fact and conclusions of law, if the petitioner did not receive a full and fair hearing on the merits of his claim in state court. In order to determine whether such a hearing was provided, the district court has the power to compel production of the complete state court record, including a transcript of the testimony. Hence, a state prisoner who files a federal habeas petition is entitled to that portion of the state-court transcript relevant to a determination of the facts contested by him. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(e).

The Supreme Court has not specifically decided whether an indigent state prisoner, who has not stated precisely what errors he claims in his state-court conviction, must be provided with a free transcript of his original trial for use in a collateral proceeding. That question was raised, but not reached, in Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). ² There, the petitioner had used a borrowed transcript on his direct appeal, and, before the Court would decide whether a free copy must be supplied for purposes of the habeas proceeding, it required him to show that a transcript could not again be borrowed.

The precise question before this court--whether an indigent federal prisoner is entitled to a free transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255--has not been decided by the Supreme Court. Other federal appellate courts, however, have held that a federal prisoner is not entitled to a free transcript under these circumstances, in the absence of a showing of need for the specific portion of the transcript which he requests. See, e.g., Cowan v. United States, 445 F.2d 855 (5th Cir. 1971); Bentley v. ,United States, 431 F.2d 250 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); Benthiem v. United States, 403 F.2d 1009 (1st Cir. 1968), cert. denied, 396 U.S. 945, 90 S.Ct. 384, 24 L.Ed.2d 247 (1969); United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964). ³

This circuit did hold in Wilson v. Wade, 390 F.2d 632 (9th Cir. 1968), that an indigent state prisoner was not entitled to a free transcript in order to search for some basis for postconviction relief. We relied then upon what we conceded may have been dicta in McGarry v. Fogliani, 370 F.2d 42, 44 (9th Cir. 1967). See Wilson v. Wade, 390 F.2d at 634 n. 1. However, our judgment in Wilson v. Wade was vacated by the Supreme Court, and the case was remanded to the district court for further proceedings. 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970).

Taylor v. United States, 238 F.2d 409 (9th Cir. 1956), cert. denied, 353 U.S. 938, 77 S.Ct. 817, 1 L.Ed.2d 761 (1957), is the only decision of this court involving the right of an indigent prisoner to obtain a free transcript for use in a 2255 proceeding. We denied the petitioner's request there, but that decision was handed down in 1956 only months after Griffin v. Illinois had been decided and before most of the case law in the free-transcript field had been developed. To the extent that Taylor may have been stating a constitutional doctrine, it has been thoroughly undercut by subsequent higher authority.

Moreover, Taylor is inconsistent with the prevailing rule in other circuits that an indigent prisoner in a 2255 proceeding is entitled to a free transcript if he can make a particularized showing of need. In Taylor the petitioner alleged that the government knowingly used perjured testimony to procure his conviction and that he was denied the effective assistance of counsel. Under current practice at least the first allegation probably would be sufficient to require production of the relevant portions of the transcript. Cf. United States v. McDowell, 305 F.2d 12, 14 (6th Cir.), cert. denied, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 508 (1962).

Congress had endorsed the rule, initially adopted by the Fourth Circuit, that an indigent federal prisoner must make a particularized showing of need before he can obtain a free transcript of his criminal trial. Title 28...