Hill v. Norris, Director, Arkansas Department of Corrections

Filing 89

ORDER denying 88 Motion for Reconsideration by Lester Joe Hill. Signed by Honorable James R. Marschewski on August 24, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LESTER HILL

v.

PETITIONER

CV NO. 2:08-CV-2082-RTD

LARRY NORRIS, Director
Arkansas Department of Correction

RESPONDENT
ORDER

Before the court is the Petitioner's Motion for Reconsideration from Denial of Motion for
Transcript (ECF No. 88) filed August 16, 2011. The Petitioner filed a previous Motion for
Transcript (ECF No. 83) on July 7, 2010 which the court denied but instructed the clerk to
forward copies of the tape of the hearing to the Petitioner. (ECF No. 84). The Petitioner, being
an inmate in the Arkansas Department of Correction, is unable to access the tapes which have
been sent to him and is seeking to have the tapes transcribed. (ECF No. 86-1).
The Eighth Circuit has stated that “it is clear that a majority of the Court (the Supreme
Court in United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976))
concluded that a prisoner has no absolute right to a transcript to assist him in the preparation of a
collateral attack on his conviction, and that constitutional requirements are met by providing such
materials only after judicial certification that they are required to decide the issues presented by a
non-frivolous pending case.” United States v. Russell Losing, Jr., supra, 601 F.2d at 353. See
also United States v. Losing, 584 F.2d 289 (8th Cir. 1978), Cert. denied, 439 U.S. 1081, 99 S.Ct.
865, 59 L.Ed.2d 51 (1979). See U.S. v. Lewis 605 F.2d 379, 379 (C.A.Minn., 1979).
There were no non-frivolous claims in the petition and the Petitioner's Certificate of

Appealability was denied by the Eighth Circuit. The Petitioner now claims in his motion for
reconsideration that Mr. Shue, the prosecuting attorney in his state case, did not testify as the
court has stated that he did at the evidentiary hearing. The video was played in its entirety at the
hearing as it was at trial. The court has again reviewed the taped testimony of Mr. Shue and
finds no inconsistences between Mr. Shue’s testimony and the court’s Report and
Recommendation.
The court finds no good reason to impose the costs on the Government of providing a
transcript for the Petitioner and the Petitioner's Motion for Reconsideration From Denial of
Motion for a Transcript of the hearing conducted September 15, 2009 is DENIED.

IT IS SO ORDERED this August 24, 2011.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
Chief United States Magistrate Judge