United States v. Bushway de Souza

Opinion

USCA1 Opinion

August 5, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1205 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                              BARBARA BUSHWAY DE SOUZA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

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                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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            Barbara Bushway De Souza on brief pro se.
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            Peter  E. Papps,  United  States Attorney,  on Motion  for Summary
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        Disposition, for appellee.

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Per Curiam.  Barbara Bushway Desouza pled guilty in
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            1992 to drug charges  and was sentenced.  She  did not appeal

            her  sentence directly.   However,  Desouza brought  a motion

            under 28  U.S.C.   2255, alleging that a Sentencing Guideline

            amendment  permitting  an additional  one-level  reduction in

            base offense level for acceptance of responsibility should be

            applied to  reduce her sentence.   The district  court denied

            her motion  because the amendment became  effective after she

            was sentenced  and could  not be  applied retroactively.   We

            affirmed  in United States v.  Desouza, -- F.2d  -- (1st Cir.
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            1993).  Before our  decision was rendered, Desouza petitioned

            the district  court to  have certain transcripts  prepared at

            government expense, averring that  she needed the transcripts

            to "prepare [a] motion in order to secure my rights under the

            law."   The district court denied her request because she had

            not given any  reason why the transcripts  should be prepared

            at government expense.  Desouza has appealed.  We now affirm.

                      The district court's denial of Desouza's motion was

            proper under our  case law.  In Ellis v.  State of Maine, 448
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            F.2d  1325, 1327  (1st  Cir. 1971),  we  held that  a  habeas

            petitioner alleging simply that his rights had been infringed

            had  no  right  to a  free  transcript  without  showing more

            specifically that his claim had some merit.  We stated:

                      As to the request for a transcript, it is
                      important to  note that  we are  not here

concerned  with  a direct  appeal  from a
                      conviction, or a state habeas which takes
                      the place  of  such an  appeal,  where  a
                      transcript  may  be  a  matter  of  right
                      without  showing  merit  in  the  appeal.
                      [Citation omitted.]  Appellant's petition
                      is  wholly  for collateral  relief.   For
                      this unusual and exceptional relief there
                      should be a burden upon the petitioner to
                      come into court with his case, not simply
                      to try  to make one  out.  This  does not
                      mean, of course, with his full case,  but
                      he  must  show merit,  not  just personal
                      opinion.  

            Id.  In her motion to the district court, Desouza stated only
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            that  she  needed the  transcripts  to  prepare a  motion  to

            "secure  [her]  rights."  Thus, she has not even alleged that

            her rights have been violated, as the unsuccessful petitioner

            in Ellis  did,  nor, obviously,  has  she given  any  details
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            suggesting that she could make out a case that her rights had

            been infringed.  Her brief to this court is no more specific.

            It  states only that she  is preparing a  section 2255 motion

            and that "[i]n  order to be able to address  the right issues

            and effectively and accurately present [my] case . .  . , [I]

            need[] to  refer to  [the]  transcripts .  .  . ."    Because

            Desouza,  who  is seeking  collateral  relief,  has not  even

            described in general terms  what the nature of her  claim is,

            let alone given  any specific facts to show that she has some

            meritorious claim,  it is clear that the district court acted

            properly in denying her request for a free transcript.

                      We  note further  that  Desouza's  motion for  free

            transcripts  would also  have been  properly denied  under 28

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U.S.C.    753(f).  That statute permits the provision of free

            transcripts  to indigents pursuing  their section 2255 rights

            under certain circumstances.1  It states:

                      Fees   for   transcripts   furnished   in
                      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.

            Thus, under section  753(f) Desouza  would be  entitled to  a

            free  transcript only  if the  district court  had determined

            (or, presumably, if this court upon appeal were to determine)

            that her section 2255  motion was not frivolous and  that the

            requested transcripts  were necessary  to decide  her motion.

            The  Supreme Court has held that  the requirements imposed on

            indigents seeking  transcripts  which are  contained in  this

            provision of  section 753(f) are constitutional.   See United
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            States  v. MacCollom,  426  U.S. 317,  325 (1976)  (plurality
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            decision).  Since Desouza has not described the basis for her

            suit or any specific facts which might support a section 2255

            motion,  we cannot say that her motion would not be frivolous

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            1.  The  record  does not  show  whether  the district  court
            granted Desouza's application to proceed in forma pauperis in
            seeking  the  transcripts.   In  light  of other  information
            contained  in the record, however, we  may assume either that
            the court granted her  IFP application or that it  would have
            done so.  

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or  that  the transcripts  would be  necessary to  decide her

            motion.   Thus,  we conclude  that  the district  court acted

            properly in denying her motion for free transcripts.  See id.
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            at 326 (had the section 2255 petitioner provided the district

            court with  some factual allegations respecting  his claim of

            ineffective  assistance  of  counsel,  and  not  merely  with

            conclusory allegations, and had he stated explicitly what his

            counsel's error was, the court might have  concluded that his

            claim  was not frivolous and that a free transcript should be

            furnished);  Sistrunk v.  United  States, 992  F.2d 258,  259
                         ________     ______________

            (10th Cir.  1993) (a  conclusory allegation that  a defendant

            was denied  effective assistance of counsel  does not satisfy

            the requirements of section 753(f)).2

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            2.  Because  Desouza  failed to  make  any  showing that  her
            section  2255  motion  would not  be  frivolous  or that  the
            requested  transcripts  would  be  necessary  to  decide  her
            motion,  we need not  decide whether she  should have brought
            her  section  2255  motion   before  seeking  to  obtain  the
            transcripts.   See Sistrunk,  992 F.2d  at 259  (citing cases
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            which have held that the actual filing of the habeas petition
            is a necessary prerequisite to seeking free transcripts under
            section  753(f),  but  not  deciding whether  to  adopt  that
            interpretation  in light  of petitioner's failure  to satisfy
            the  statutory  prerequisites);  see  also United  States  v.
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            Chambers, 788 F. Supp. 334 (E.D. Mich. 1992)  (discussing the
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            conflict on this point among the circuit courts).  Similarly,
            because Desouza seeks the  preparation of transcripts and not
            simply a copy  of transcripts already in  existence, there is
            no need to consider whether, not meeting  the requirements of
            section 753(f),  she  could  obtain  free  transcripts  under
            section 753(b).  See Rush v. United States, 559 F.2d 455, 458
                             ________    _____________
            (7th  Cir. 1977)  (reversing the  district court's  denial of
            petitioner's   motion  for  free  transcripts  under  section
            753(f); because  the transcripts  were already  in existence,
            the  court  of  appeals  held  that  the  petitioners,  whose
            conclusory allegations respecting  their section 2255  motion

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The judgment of the district court is affirmed.3
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            did  not meet the requirements of section 753(f), had a right
            to the transcripts under  section 753(b), which provides that
            "the  original records" in the clerk's office must be open to
            inspection  "by  any  person  without  charge").    The  Rush
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            decision has been criticized.  See Sistrunk, 992 F.2d at 260;
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            United States  v.  Losing, 601  F.2d  351, 352-53  (8th  Cir.
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            1979).

            3.  Because Desouza  has not  said what  grounds she  has for
            bringing a second section 2255 motion,  we cannot say whether
            her motion would  be likely to  be dismissed under Rule  9 of
            the Rules  Governing    2255 Proceedings, given  her previous
            section 2255 motion, as the government argues.  

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