Norman v. Dovey et al

Filing 56

ORDER signed by Magistrate Judge Dale A. Drozd on 11/08/12 denying 54 Motion for transcripts at government expense. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

CHARLES GLENN NORMAN, JR.,
Petitioner,

11
12
13
14

vs.
JOHN DOVEY, et al.,
Respondent.

ORDER
/

15
16

No. 2: 06-cv-2235 MCE DAD P

Petitioner is a state prisoner proceeding pro se with an application for a writ of

17

habeas corpus pursuant to 28 U.S.C. § 2254. On April 8, 2010, the undersigned issued findings

18

and recommendations that respondent’s motion to dismiss be granted due to the untimeliness of

19

the habeas petition. The findings and recommendations were adopted in full by the assigned

20

District Judge on May 18, 2010 and the action was closed. On May 28, 2010, petitioner filed a

21

notice of appeal and a motion for a certificate of appealability. On October 25, 2011, a certificate

22

of appealability was granted and petitioner’s appeal was subsequently processed to the United

23

States Court of Appeals for the Ninth Circuit. On June 8, 2012, petitioner filed a motion for trial

24

transcripts at government expense in this court. (See Dkt. No. 54.) On October 17, 2012, the

25

United States Court of Appeals for the Ninth Circuit issued a memorandum order affirming this

26

court’s judgment. (See Dkt. No. 55.)
1

1

Petitioner argues as follows in support of his motion:

2

This motion is predicated on the grounds that trial transcripts be
issued and specific individual portions on physical evidence at lab.
All DNA testing finger print testing portions of trial transcripts be
issued. Issues were not settled in the state court and requires
resolution on the merits because evidence may have caused a
different verdict.

3
4
5
6

(Dkt. No. 54 at p. 1.)
Furnishing transcripts at public expense is governed by 28 U.S.C. § 753(f), which

7
8

provides that “[f]ees for transcripts in other proceedings to persons permitted to appeal in forma

9

pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that

10

the appeal is not frivolous (but presents a substantial question).” 28 U.S.C. § 753(f)

11

(parenthetical in original). The Ninth Circuit has stated that an indigent habeas petitioner is not

12

entitled to transcripts at government expense until after a habeas petition is filed. See United

13

States v. Connors, 904 F.2d 535, 536 (9th Cir. 1990).
Petitioner’s motion for trial transcripts at government expense will be denied.

14
15

Petitioner has failed to show a particular need for the requested trial transcripts in relation to the

16

denial of his federal habeas petition due to untimeliness which has subsequently been affirmed

17

on appeal by the Ninth Circuit. Furthermore, petitioner’s motion for trial transcripts was not

18

filed until after judgment was issued in this action dismissing the habeas petition due to

19

untimeliness. Thus, there is also no current pending habeas petition in the district court.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for transcripts

20
21

at government expense (Dkt. No. 54.) is DENIED.

22

DATED: November 8, 2012.

23
24
25

DAD:dpw
norm2235.transcripts

26
2