United States v. Dickinson

• Decision Date: 14 September 2015
• Docket Number: Case No. 1:14-cr-035
• Parties: UNITED STATES OF AMERICA, v. TONY DICKINSON, Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, v. TONY DICKINSON, Defendant.

Case No. 1:14-cr-035

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

September 14, 2015

Judge Timothy S. Black

ORDER REGARDING DEFENDANT'S REQUESTS FOR TRANSCRIPTS, DOCUMENTS, AND APPOINTMENT OF COUNSEL (Docs. 249, 291, 292, 298, 299)

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.¹ (Id.)

I. BACKGROUND

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.² (Doc. 143). The binding plea agreement proposed a sentence of ninety-six (96) months imprisonment, to run concurrent with an eleven-year sentence Defendant was already serving for a state drug conviction.³ (Id. at ¶ 2). The plea agreement also called for a minimum term of four (4) years supervised release, and payment of the $100 special assessment. (Id. at ¶¶ 2, 6(d), 10). The Court deferred acceptance of the plea agreement until it had the opportunity to review Defendant's Presentence Investigation Report ("PSR"). (Doc. 147).

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.⁴ See Fed. R. App. P. 4(b)(1).

On May 14, 2015, Defendant filed a motion requesting a transcript of his sentencing hearing.⁵ (Doc. 249). On July 27, 2015, Defendant filed a second motion requesting a transcript of his sentencing hearing, as well as a copy of his PSR and sentencing memorandum. (Doc. 291). On August 4, 2015, Defendant filed a third motion for his sentencing transcript, PSR, and, additionally, requesting appointment of counsel to assist him in filing a motion to vacate under 28 U.S.C. § 2255. (Doc. 292). On August 21, 2015, Defendant filed a fourth motion, renewing his requests for the sentencing transcript, PSR, and appointed counsel. (Doc. 298). The August 21 motion also appends a list of cases, which Defendant asks the Court to provide for him, as he believes they are necessary for his § 2255 motion, and the county jail in which he is detained does not have a law library. (Id. at 2). On September 3, 2015, Defendant filed a fifth motion requesting a copy of his PSR, indictment, sentencing memorandum, sentencing transcript, and a form motion for appointment of counsel. (Doc. 299).

II. ANALYSIS

A. Request for Sentencing Transcripts

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. § 2255.⁶ (Docs. 249, 291, 292, 298, 299).

"[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).⁷

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 neededto vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Roberts v. LaVallee, 389 U.S. 40, 42 (1967) (emphasis added). It is, therefore, implicit that a defendant, at the very least, should be attempting to "vindicate a legal right," before the Court expends government funds to provide him "access to the instruments needed." Id.

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 after the court determines that the motion is not frivolous and that the transcript is necessary). Therefore, "neither [28 U.S.C. § 1915] nor [28 U.S.C. § 753(f)] authorizes the furnishing of a transcript where there is no motion to vacate sentence pending." Ketcherside v. United States, 317 F.2d 807, 808 (6th Cir. 1963) (per curiam).

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 "particularizedneed" 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."⁸

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.

B. Appointment of Counsel

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 post-conviction 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 the court determines that the interests of justice so require, representation may be provided for any financially eligible person who ... is seeking relief under section 2241, 2254, or 2255 of title 28") (emphasis added).

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.

C. Request for Documents

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").⁹ However, "[a] federal prisoner is not entitled to obtain copies of court records at Government expense for the purpose of searching the record for possible error." Walker v. United States, 424 F.2d 278, 279 (5th Cir. 1970) (per curiam) (citations omitted). Thus, a defendant must first file his § 2255 motion, before he is entitled tocourt documents at no cost. See, e.g., United States v. Lewis, 37 F.3d 1510 (10th Cir. 1994); United States v. Connors, 904 F.2d 535, 536 (9th Cir. 1990) (per curiam).

1. PSR

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) f...