United States District Court, N.D. Illinois
March 10, 2004.
UNITED STATES OF AMERICA, Plaintiff
PAUL KELLY, Defendant
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Petitioner first sought, pro se, various documents and transcripts,
preparatory to filing a § 2255 petition, while his appeal was still
pending. That motion was denied as premature, coincidentally on the same
day his conviction was affirmed. He subsequently filed this action and
renews his request
His request for transcripts requires a certification that the suit is
not frivolous and that the transcript is needed to decide the issues
presented. 28 U.S.C. § 753(f). We turn, then, to the issues raised
in his petition.
He raises three issues, all predicated on ineffective assistance of
counsel. The first is, apparently, that his counsel possibly acquiesced
in or failed to prevent a violation of the Speedy Trial Act,
18 U.S.C. § 3161, in that far more than thirty days elapsed between
arrest and indictment. The second is that his counsel, at sentencing,
failed to attack the amount of drugs calculation and the enhancement for
the use of minors, and for being a leader. The third is that his
appellate counsel failed to raise the Speedy Trial Act claim.
Most of the matters petitioner seeks have no relation to his claims and
are sought, it
appears, in hopes that something else will turn up. These include Items
1, 3, 4, 5 and 6. The only item that might possibly be helpful to
petitioner Is transcript from three dates in 1999, item 2. Since we do not
know what then transpired, we cannot conclude that the claim is frivolous
or not frivolous, and the transcript is necessary to determine that. We
will, therefore, authorize preparation of the transcript for review by
the court and for transmission to petitioner if it provides any support
for the claim. We should advise petitioner that, even were he successful
on his claim, the best he could hope for is that the government would
have to begin anew, and it would be able to use the same evidence as
before, including petitioner's own statements to the extent indicated by
the Court of Appeals. The motion is granted to the limited extent
indicated and is otherwise denied.
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