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United States v. Deress

June 29, 2006


The opinion of the court was delivered by: David G. Larimer United States District Judge


1. Background

Currently pending with the Court are two motions filed by petitioner Haile Deress ("Deress"), pro se; the first is a motion pursuant to 28 U.S.C. § 753(f) for copies of transcripts of his plea colloquy and sentencing at the Government's expense, (Dkt. #32); the second is a motion for an extension of time within which to file a memorandum of law (Dkt. #33), concerning his pending motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, based on ineffective assistance of counsel. (Dkt. #31). For the reasons that follow, the motion for transcripts is denied, and the motion for an extension of time is granted, in part.

On December 9, 2004, Deress pleaded guilty to two counts of possession with intent to distribute and distribution of marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841 (b)(1)(D) pursuant to a written plea agreement. In that plea agreement, defendant and the Government agreed pursuant to FED. R. CRIM. P. 11(c)(1)(C) that the sentence would be a term of imprisonment of 59 months. The agreement also provided that because Deress was not a citizen the conviction may affect his right to remain in the United States. In addition, Deress waived the right to appeal or collaterally attack the sentence and judgment.

On March 22, 2005, the petitioner was sentenced to fifty-nine months imprisonment plus three years supervised release. Special conditions of the petitioner's supervision provide that the petitioner is to be delivered to an Immigration official for deportation proceedings pursuant to 18 U.S.C. § 3583(d). (Dkt. # 29, Judgment at 4).

2. Discussion

A. Motion for Production of Transcripts

28 U.S.C. § 753(f) provides that:

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.

To be entitled to free transcripts, the petitioner must make a showing that the allegations in the underlying § 2255 motion are not frivolous and that the transcripts are necessary to decide the issue presented. Crossley v. U.S., 538 F.2d 508, 509 (2d Cir. 1976). Limiting the petitioner's right to free trial transcripts is consistent with the Due Process Clause. U.S. v. MacCollum, 426 U.S. 317, 319-321 (1976). The standard for determining whether an appeal is not frivolous but presents a substantial question for the purposes of Section 753(f) is whether the issue on appeal "judged on an objective basis, is a question which is 'reasonably debatable.' " Harlem River Consumers Cooperative, Inc. v. Associated Grocers of Harlem, Inc., 71 F.R.D. 93, 97 (S.D.N.Y.1976). Courts also consider whether the transcript will be necessary for the presentation of the issue. Id. at 97-98 and n.7.If the petitioner makes only a "naked allegation" that he was deprived effective counsel, the court may deny the transcript request. Crossley, 538 F.2d at 509 (2d Cir. 1976).

To determine whether the claims in petitioner's § 2255 motion are frivolous, the Court must review the claim of ineffective assistance under the two-pronged test for ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984), that (1) counsel's representation fell below an objective standard of reasonableness, and that (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001). See also Hill v. Lockhart, 474 U.S. 52, 57 (1985).

In his § 2255 motion, Deress asserts:

(1) that he would not have pled guilty had his counsel informed him that he would be deported upon release from prison; (2) counsel failed to timely file a motion to suppress evidence; and (3) that counsel "erroneously" allowed stipulations in petitioner's plea agreeing to an enhancement under U.S.S.G. § 2D1.1(b) and an upward departure under U.S.S.G. § 5K2.21. (Dkt. #31, Motion to Vacate at 6).

Petitioner does not indicate how he intends to use the transcripts or which, if any, issue the transcripts would ...

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