United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter comes before the court on defendant Michelle
Belair's two Motions for Sentencing Transcripts (Docs.
341 & 342) and her Motion to Appoint Counsel (Doc. 343).
The government has filed a response to Ms. Belair's
request for free sentencing transcripts (Doc. 346). For
reasons explained below, the court denies Ms. Belair's
Belair's filings are brief. They ask the court “to
prepare the portion of the Sentencing [Transcript]” so
that she can file a motion under 28 U.S.C. § 2255. Doc.
341 at 1; Doc. 342 at 1. Ms. Belair asks the court to waive
the costs of the transcript, and she provides a Financial
Affidavit to demonstrate her inability to purchase the
transcript. Doc. 344. The government responds, arguing that
Ms. Belair hasn't shown “a need for the sentencing
transcripts.” Doc. 346 at 4. “[S]he is not
entitled to the transcripts merely to search for possible
error, ” the government asserts. Id.
indigent defendant is entitled to have the government pay the
fees for a copy of [her] transcript in a section 2255
proceeding only if [she] demonstrates that [her] suit is not
frivolous and that the transcript is needed to decide the
issue presented by the suit.” United States v.
Austin, No. 94-1108, 1995 WL 94632, at *1 (10th Cir.
Feb. 28, 1995). The statute governing transcript fees
provides the following:
[f]ees for transcripts furnished in proceedings brought under
section 2255 . . . to persons permitted to sue or appeal in
forma pauperis shall be paid by the United States . . . if
the trial 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.
28 U.S.C. § 753(f). And, the Tenth Circuit has
“construed section 753(f) as requiring that the
defendant show ‘particularized need' for the
transcript.” Id. (quoting Sistrunk v.
United States, 992 F.2d 258, 259 (10th Cir. 1993)).
Ms. Belair just requests the transcript, and at no cost. She
does not explain the basis for a § 2255 motion, and she
has not filed such a motion. So, the court cannot evaluate
whether her motion is frivolous. And, under § 753(f),
the court cannot determine whether the United States should
pay for Ms. Belair's transcript. She has identified no
“particularized need” for the transcript, as the
Tenth Circuit requires. Austin, 1995 WL 94632, at
*1. The court thus denies Ms. Belair's request.
working on Ms. Belair's case, the court has noted a
curious aspect of the docket for her case. Ms. Belair
submitted two documents to the Clerk for filing. One is
docketed as Doc. 343, a Motion to Appoint Counsel. The court
addresses that motion elsewhere in this Order. Ms.
Belair's second submission-her one-page Motion for
Sentencing Transcripts-was docketed twice in the case. The
Clerk docketed this filing as Doc. 342, characterizing it as
a Motion for Sentencing Transcripts. This Order rules on that
the Clerk also docketed this same submission a second time as
Doc. 341, characterizing it as a Motion to Vacate Under
§ 2255. So that it is clear, the court does not
apprehend the motion docketed as Doc. 341 to assert a claim
under 28 U.S.C. § 2255.
in that motion, Ms. Belair does not claim
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
28 U.S.C. § 2255(a). Because the court does not
recognize Doc. 341 to make a § 2255 claim, the court
declines to express any conclusions about any § 2255
claims. Finding no issue to decide in Doc. 341, the court
directs the Clerk to terminate Doc. 341 as a pending motion
on the docket.
leaves Ms. Belair's third filing, a Motion to Appoint
Counsel. Doc. 343. She asks the court to appoint her counsel
in a habeas proceeding because: (1) her ability to litigate
the case is limited by her imprisonment; (2) the issues
involved in the case are complex; (3) she has limited
knowledge of the law; and (4) she cannot afford to retain
counsel. The Sixth Amendment right to counsel does not apply
to collateral attacks on a conviction such as a § 2255
motion. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). But, a district court has discretion to appoint
counsel in a habeas case when “the interests of justice
so require.” 18 U.S.C. § 3006A(a)(2)(B). When
exercising its “broad discretion” to decide
whether to appoint counsel to an indigent litigant, the
district court “should consider a variety of factors,
including the merits of the litigant's claims, the nature
of the factual issues raised in the claims, the
litigant's ability to present his claims, and the
complexity of the legal issues raised by the claims.”
See Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
none of Ms. Belair's filings identify any basis for a
habeas claim. Thus, the court cannot find that she is
entitled to an appointment of counsel based on the merits of
her claims, the nature of her claims, or the complexity of
the legal issues raised by the claims. Exercising its