UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

v. Criminal No. 06-cr-071-02-SM

Opinion No. 2008 DNH 030

Edward L. Brown

O R D E R

Defendant’s letter to the Clerk of Court dated January 24,

2008 (document no. 224), will be taken as a motion seeking full

transcripts of his criminal trial at government expense. See

18 U.S.C. § 3006A(d); 28 U.S.C. § 753(f). The justification for

providing the requested transcripts at government expense offered

by defendant is: 1) he is indigent and no longer able to afford

to pay the customary fee; and 2) he anticipates “upcoming

litigation and the transcripts are essential to the case.”

Assuming, without deciding, that defendant is in fact

currently indigent, his motion still must be denied. There are

two likely possibilities, in this context, regarding defendant’s

perceived need for transcripts. The first is that he expects to

use them in pursuing direct appellate review of his conviction

and sentence. But that possibility has already been foreclosed. 

On April 26, 2007, this court allowed his premature appeal after

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judgment entered, and the United States Court of Appeals for the

First Circuit dismissed that appeal on October 7, 2007, due to

defendant’s inexplicable failure to pursue it. His conviction

and sentence are now final and he has no need of transcripts

relative to a direct appeal that is no longer available to him.

The second reasonable possibility is that defendant wishes

to use the requested transcripts in connection with a petition

for relief under the provisions of 28 U.S.C. § 2255. But in

order to secure free transcripts in support of a collateral

relief petition, petitioner must first allege more than simply

that his rights have been infringed. The burden is on

petitioner:

[T]o 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.

Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971). 

Petitioner has not come close to meeting that modest burden

either in his motion for transcripts or his motion to vacate his

convictions and sentence (which he emphatically says is not

intended as a motion for § 2255 relief). And, under the

provisions of 28 U.S.C. § 753(f), the court would be required,

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before providing defendant with free transcripts, to certify that

defendant’s motion for relief under § 2255 (which he denies

filing), or his appeal, is not frivolous, and the transcripts are

needed to decide an issue presented by the appeal or motion. 

Defendant’s motion, not filed under § 2255, is plainly frivolous,

and no further appeal is now available to defendant, so the

required certification cannot be made.

The motion for transcripts of defendant’s criminal trial at

government expense (document no. 224) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 1, 2008

cc: William E. Morse, Esq.

Elaine A. Brown, pro se

Edward L. Brown, pro se

U.S. Probation

U.S. Marshal

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