United States District Court, E.D. Texas
MEMORANDUM AND ORDER
A. CRONE UNITED STATES DISTRICT JUDGE
before the court is Defendant Pablo Luis Avilez's
(“Avilez”) pro se Letter Requesting
Transcript Without Payment (#1937), wherein he asks the court
for a free copy of his sentencing hearing transcript. After
considering the motion and the applicable law, the court is
of the opinion that Avilez's request should be denied.
statutes govern the availability of records at government
expense to indigent petitioners seeking post-conviction
relief. See 28 U.S.C. § 753(f) (covering
transcripts); id. at § 2250 (covering other
court records). Under § 753(f), free transcripts are
available only if the judge “certifies that the
asserted claim is not frivolous and that the transcript is
needed to decide the issue.” This requires the movant
to make the court aware of “any facts that might
require a close examination of the trial transcript.”
United States v. Davis, 369 Fed.Appx. 546, 546-47
(5th Cir. 2010) (quoting Harvey v. Andrist, 754 F.2d
569, 571 (5th Cir. 1985)). The movant “must also
establish that the transcript is necessary for proper
disposition of the appeal.” Frazier v.
Foxworth, 697 Fed.Appx. 840, 841 (5th Cir. 2017).
“A federal prisoner is not entitled to obtain copies of
court records at Government expense for the purpose of
searching the record for possible error.” Walker v.
United States, 424 F.2d 278, 279 (5th Cir. 1970);
see United States v. Watson, No. 02-30604, 2003 WL
1109766, at *1 (5th Cir. 2003) (holding that petitioners are
“not entitled to conduct a ‘fishing
expedition' to locate possible errors”); United
States v. Herrera, 474 F.2d 1049, 1049-50 (5th Cir.)
(“This Court has consistently held that a federal
prisoner is not entitled to obtain copies of court records at
the government's expense to search for possible defects
merely because he is indigent.”), cert.
denied, 414 U.S. 861 (1973); United States v.
Delgado, No. 06CR60074-08, 2012 WL 2952425, at *2 (W.D.
La. July 18, 2012) (“[A]n indigent defendant has no
constitutional right to acquire a free copy of her transcript
or other court records for use in a collateral
Avilez seeks a copy of his sentencing hearing transcript at
the government's expense. Thus, Avilez must satisfy the
requirements of 28 U.S.C. § 753(f); however, in his
present letter, he identifies no particular need for his
transcript, nor does he identify a substantial question
relevant to appeal. See Frazier, 697 Fed.Appx. at
841; Harvey, 754 F.2d at 571. In fact, despite the
court entering judgment on September 23, 2011, Avilez did not
file a notice of appeal of his criminal conviction and has
not brought a post-conviction challenge to his conviction or
sentence, except for seeking a sentence reduction under
Amendment 782 to the United States Sentencing
Guidelines. See United States v. Driver, 326
Fed.Appx. 876, 2009 WL 1706382, at *1 (5th Cir. 2009)
(holding that defendant “did not timely appeal the
denial of his § 2255 motion, ” and there was no
pending motion before the court, therefore defendant was not
entitled to free copies of court documents); United
States v. Agbomire, 239 Fed.Appx. 929, 929-30 (5th Cir.
2007) (upholding the district court's denial of a request
for copies of court records where the defendant did not have
a § 2255 petition pending); United States v.
Guzman, No. 96-50226, 1996 WL 661631, at *1 (5th Cir.
Oct. 24, 1996) (“A federal prisoner who has not
attempted to file a petition collaterally attacking his
conviction is not entitled to obtain copies of court records
at government expense to search for possible error.”);
Skinner, 434 F.2d at 1037 (“[The Fifth
Circuit] has consistently held that where a federal prisoner
has not attempted to file a petition collaterally attacking
his conviction, he is not entitled to obtain copies of court
records at the government's expense under 28 U.S.C.
§ 2250 to search the record for possible error.”).
A stated intention to file a § 2255 petition is
insufficient to receive documents at the Government's
expense. See United States v. McCuller, No.
C-06-546(4), 2007 WL 4376110, at *1 (S.D. Tex. Dec. 13, 2007)
(“Although [the defendant] apparently seeks the
transcripts in order to file a § 2255 motion, no such
motion has yet been filed. Accordingly, he fails to meet the
statutory requirements for free transcripts or
the court finds that Avilez fails to meet the statutory
requirements for a free copy of his sentencing transcript
under § 753(f), and, thus, his Letter Requesting
Transcript Without Payment (#1937) is DENIED.
 Avilez filed his Motion to Reduce
Sentence (#1874) on October 13, 2015. The motion was
subsequently granted on February 23, 2016. Se ...