The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on Defendant's pro se Motion to Receive Transcript from Sentencing Hearing Without Cost (#20). For the reasons that follow, Defendant's Motion (#20) is DENIED.
On February 7, 2008, Defendant entered an open plea of guilty to the offense charged in the indictment (#8) against him. The indictment charged that Defendant, having previously been convicted of a felony offense under the laws of the State of Illinois, knowingly possessed firearms, all of which had previously traveled in interstate commerce in violation of 18 U.S.C. § 922(g)(1). On May 8, 2008, a sentencing hearing was held and Defendant was sentenced to a term of 92 months in the Bureau of Prisons. Defendant did not file a notice of appeal.
On September 8, 2008, Defendant filed a pro se Motion to Receive Transcript from Sentencing Hearing Without Cost (#20). Defendant stated "[t]hat he is in need of his trial and or sentencing transcripts in order to file his Title U.S.C. § 2255 or § 2241 motion for Habeas relief." He asked this court to order that he be allowed to proceed in forma pauperis and that he be given his transcripts from the sentencing hearing free of cost. Defendant further stated that he is indigent and without income to pay the costs of the proceeding or for the requested documents. He also does not own any real property, jewelry, accounts, or anything else of value.
This court initially notes that, because Defendant did not appeal his conviction or sentence, no transcripts have been prepared in this case. Additionally, because Defendant pleaded guilty to the charge against him, no trial was held, so no trial transcript could be prepared.
28 U.S.C. § 753(f) allows an indigent defendant to obtain the preparation of free transcripts to prosecute a § 2255 action, "if the trial judge ... certifies that the suit ... is not frivolous and that the transcript is needed to decide the issue presented by the suit." 28 U.S.C. § 753(f); see also United States v. Ray, 2007 WL 4232988, at *1 (E.D. Wis. 2007). "However, the defendant must first file the § 2255 action in order to obtain preparation of transcripts under § 753(f)." Ray, 2007 WL 4232988, at *1 (emphasis in original); see also United States v. Tolliver, 2007 WL 611236, at *1 (S.D. Ill. 2007) (stating that § 753(f) applies when the transcript is needed to decide an issue presented by a pending and non-frivolous action). Because Defendant has not yet filed a § 2255 motion, he is not eligible for transcripts under § 753(f). See Ray, 2007 WL 4232988, at *1.
This court notes that, once Defendant has filed his Motion under 28 U.S.C. § 2255, he may file a motion requesting the preparation of transcripts under § 753(f). If this court concludes that Defendant's Motion is not frivolous and that transcripts are needed to decide an issue presented in the Motion, this court will order the preparation of the transcripts at that time.
For the reasons stated, Defendant's pro se Motion to Receive Transcript from Sentencing Hearing Without Cost (#20) is DENIED.
ENTERED this 26th day of September, 2008
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