IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, ) 8:00CR59

)

Plaintiff, )

) ORDER

vs. )

)

HOMAR ESCARSEGA, )

)

Defendant. )

This matter is before the court on defendant’s Motion to Request Trial Transcripts

and Legal Documents, Filing No. 45, and Motion for Leave to Proceed In Forma Pauperis,

Filing No. 46. The court notes that the time for a direct appeal has expired, as this court

sentenced defendant on November 30, 2000, Filing No. 37. Judgment was entered on

December 13, 2000, Filing No. 39. The court notes that defendant has failed to file a

request for habeas corpus pursuant to 28 U.S.C. § 2255.

28 U.S.C. § 2250 contemplates the filing of a motion for collateral review of a

conviction and a motion for leave to proceed in forma pauperis before free copies of the

record or parts of the record may be furnished to the moving party. Section 2250 states:

If on any application for a writ of habeas corpus an order has been made

permitting the petitioner to prosecute the application in forma pauperis, 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 before whom the application

is pending.

See also Chapman v. U.S., 55 F.3d 390, 390-91 (8th Cir. 1995):

We held in United States v. Losing, 601 F.2d 351, 352 (8th Cir. 1979) (per

curiam), that under 28 U.S.C. § 753(f) and under Supreme Court authority

"any request for a free transcript prior to the filing of a section 2255 complaint

is premature." We also held that under section 753(b), access to materials

such as a transcript is not constitutionally required until after judicial

certification that access is required to decide issues presented in a pending,

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non-frivolous case. Id. at 353. The district court correctly held that [the

defendant] was not entitled to copies of transcripts at government expense

in advance of filing suit.

Once a § 2255 motion is filed, 28 U.S.C. § 753(f) provides funds for a transcript if

the defendant qualifies. “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.” Id.

 Therefore, before the court will consider any request for copies, defendant must file

a motion seeking collateral relief. 

 IT IS ORDERED:

1. The defendant’s Motion to Request Trial Transcripts and Legal Documents, Filing

No. 45, and Motion for Leave to Proceed In Forma Pauperis, Filing No. 46. are denied.

2. The Clerk’s Office is ordered to mail to the defendant at his last known address

the forms and instructions for initiating a proceeding pursuant to 28 U.S.C. § 2255 and for

requesting leave to proceed in forma pauperis. 

DATED this 18th day of January, 2011.

BY THE COURT:

s/ Joseph F. Bataillon 

Chief United States District Judge

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