United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
January 31, 2017, the Court denied without prejudice the
Defendant's motion for a free transcript of his
sentencing because the Defendant had not yet filed a petition
pursuant to 28 U.S.C. § 2255. See generally United
States v. Horvath, 157 F.3d 131 (2d Cir. 1998). The
Defendant has since filed several motions. The Court
addresses each motion in turn.
Motion to proceed in forma pauperis
the Defendant moves to proceed in forma pauperis.
Docket No. 642. Upon review of the Defendant's financial
affirmation, the Court finds that the Defendant is indigent
and grants the motion.
Motion for free transcripts
the Defendant has filed a “motion to be provided
transcripts pursuant to 28 U.S.C. § 2250.” Docket
No. 641. This motion argues that the Defendant's request
for a free transcript of his sentencing is not premature (as
the Court held in its January 31, 2017 Order) because, the
Defendant argues, he “is currently composing a Motion
for Recusal pursuant to Title 28 U.S.C. § 144 and Title
28 § 455 and these records are absolutely necessary for
both Defendant's Motion for Recusal and his Title 28
U.S.C. § 2255 appeal.” Docket No. 641 at 1.
(Before the Court ruled on the Defendant's motion for a
free transcript, the Defendant filed his motion for recusal,
which the Court addresses below.)
Defendant's motion for a free transcript of his
sentencing is again denied without prejudice. It is settled
that § 753(f) gives the Court authority to provide a
defendant with free transcripts only after the
defendant files a petition pursuant to 28 U.S.C. § 2255.
See Horvath, 157 F.3d at 132.
response to this, the Defendant argues that he requires a
sentencing transcript “as soon as possible” so
that he may file a timely § 2255 petition. The Second
Circuit, however, expressly rejected this argument in
United States v. Horvath. See Horvath, 157
F.3d at 133 (“Presumably, a movant who can plead facts
sufficient to obtain certification under § 753(f) will
be able to satisfy the non-onerous pleading standards for a
§ 2255 motion.”) The Defendant's renewed
motion illustrates the point made by the Second Circuit in
Horvath: in support of his motion, the Defendant
points to statements made by the Court at sentencing that,
the Defendant argues, “exhibited significant bias and
prejudice towards the Defendant and that [were] a
contributing factor to the exhorbitant [sic] sentence that
was imposed.” Docket No. 641 at 2. But if these
comments are the basis for the Defendant's anticipated
§ 2255 petition, there is no apparent reason why the
Defendant requires a sentencing transcript to prepare his
petition-the Defendant already knows what the comments are.
Indeed, he quotes them in his motion. The Defendant does not
need exact quotations to prepare a § 2255 petition.
alternative, the Defendant argues that he is entitled to free
transcripts pursuant to 28 U.S.C. § 2250. Section 2250
provides that, “[i]f on any application for
a writ of habeas corpus an order has been made
permitting the petitioner to prosecute the
application in forma pauperis, ” the Court may order
the Clerk of the Court to “furnish to the petitioner
without cost certified copies of such documents or parts of
the record on file . . . as may be required.” 28 U.S.C.
§ 2250 (emphasis added). The Second Circuit has not
interpreted § 2250, but the statute's language
compels the same result as a request brought under §
753(f): until the Defendant files a petition for a writ of
habeas corpus, he is not entitled to free transcripts, no
matter the purpose for which he intends to use the
transcripts. See Tyler v. Cartledge, 584 F.
App'x 77, 78 (4th Cir. 2014) (“Provision of . . .
copies [of documents in the record] is a matter of discretion
with the district court before which the habeas petition
is pending.”) (emphasis added); United States
v. Connors, 904 F.2d 535, 536 (9th Cir. 1990)
(“Although Connors is indigent, he has not filed a
habeas petition, and therefore is not entitled to copies of
his trial transcript at government expense until he does
so.”). The Petitioner's renewed motion for a free
copy of his sentencing transcript is therefore denied.
Motion for an extension of time to file a § 2255
the Defendant suggests that without a free copy of his
sentencing transcript, he will require “an extension of
time within which to file the § 2255.” To the
extent this statement can be construed as a motion for an
extension of time to file a § 2255 petition, the Court
lacks subject matter jurisdiction to grant such a request.
See United States v. Green, 260 F.3d 78, 82-83 (2d
Cir. 2001) (“[A] district court may grant an extension
of time to file a motion pursuant to section 2255 only if (1)
the moving party requests the extension upon or after filing
an actual section 2255 motion, and (2) rare and exceptional
circumstances warrant equitably tolling the limitations
period.”) (quotation marks omitted); United States
v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (“If or
when [defendant] actually files a § 2255 petition, the
District Court and [the Second Circuit] may consider his
argument that such a petition should be considered timely.
Until then, we lack jurisdiction to consider the
Motion for recusal
the Defendant moves to recuse the undersigned. The grounds
for the Defendant's motion are that (1) the Court revoked
Magistrate Judge McCarthy's release orders; and (2) that
the Court “made his bias obvious [at sentencing] when
he stated that [the Defendant] was a Darth Vader” and
that, had the Defendant gone to trial and been found guilty,
the Court “would have given [the Defendant]
life.” Docket No. 643 at 3.
is well settled that ‘opinions formed by the judge on
the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible.'”
United States v. Jones, 294 F. App'x 624, 627
(2d Cir. 2008) (quoting Liteky v. United States, 510
U.S. 540, 555 (1994)). It should be obvious that the
Court's statements at sentencing were not based on
“deep-seated favoritism or antagonism.” The
Court's comments were based, instead, on the Court's
view of the Defendant's history and characteristics, as
well as the Defendant's involvement in this case. In
other words, the Court's comments were based on what the
Court learned about the Defendant and this case after having
presided over the case for an extended period of time.
Cf. Liteky v, 510 U.S. at 550-51 (“The judge
who presides at a trial may, upon completion of the evidence,
be exceedingly ill disposed towards the defendant, who has
been shown to be a thoroughly reprehensible person. But the
judge is not thereby recusable for bias or prejudice, since
his knowledge and the opinion it produced were properly and
necessarily acquired in the ...