United States Court of Appeals

for the Fifth Circuit

No. 21-40051

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Victor Hernandez-Cuellar, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:16-CR-111-1

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

Jose Victor Hernandez-Cuellar, federal prisoner # 26608-078, appeals 

the district court’s denial of his motion for copies of transcripts and other 

court records. He asserts that he needs access to the records and transcripts 

in his case to prepare a 28 U.S.C. § 2255 motion and that his previous 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2021

Lyle W. Cayce

Clerk

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No. 21-40051

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attorneys have denied his requests for copies of his file. Additionally, he 

contends that the district court’s denial of his motion violated his Fifth and 

Fourteenth Amendment rights. 

An indigent defendant has no constitutional right to acquire a copy of 

his transcripts or court records for use in a collateral proceeding. See United 

States v. MacCollum, 426 U.S. 317, 325-26 (1976). However, a movant for a 

writ of habeas corpus is entitled to copies of court records without cost where 

he has been granted leave to proceed in forma pauperis and his federal habeas 

motion is pending before the court. 28 U.S.C. § 2250; see Walker v. United 

States, 424 F.2d 278, 278-79 (5th Cir. 1970). The records will not be 

provided, though, where a movant contends that he needs them to formulate 

a claim or to review for facts that may support a potential habeas petition. See 

United States v. Carvajal, 989 F.2d 170, 170 (5th Cir. 1993).

When Hernandez-Cuellar moved to furnish the requested records, no 

§ 2255 motion or other collateral-review application was pending before the 

district court. While he claims that he was granted leave to file a successive 

§ 2255 motion, his motion was, in fact, denied as unnecessary. Because there 

was no live action, the district court had no basis to consider his motion for 

production. See Carvajal, 989 F.2d at 170; Walker, 424 F.2d at 278-79. 

In any event, Hernandez-Cuellar sought production of the requested 

documents precisely for the improper purpose of “fishing” for possible 

claims for relief. See Carvajal, 989 F.2d at 170. Hernandez-Cuellar does not 

identify an error in the district court’s analysis, and while he attempts to 

show a need for production, he merely argues the merits of his substantive 

habeas claims and generally asserts that the documents will prove his claims. 

See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th 

Cir. 1987); Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). As to 

Hernandez-Cuellar’s claims of constitutional violations implicit in the denial 

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of his motion, we do not address arguments raised for the first time on appeal. 

See United States v. Cates, 952 F.2d 149, 152 (5th Cir. 1992).

Accordingly, Hernandez-Cuellar’s appeal is without arguable merit 

and is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 

(5th Cir. 1983); 5th Cir. R. 42.2. Hernandez-Cuellar is CAUTIONED

that filing frivolous, repetitive, or otherwise abusive appeals may invite 

sanctions, including dismissal, monetary sanctions, and restrictions on his 

ability to file pleadings in this court and any court subject to this court’s 

jurisdiction.

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