Savajian v. Milyard et al
Filing
33
ORDER denying 32 Applicants request for state court records by Judge William J. Martinez on 2/17/2012.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge William J. Martínez
Civil Action No. 11-cv-00913-WJM
GREGG J. SAVAJIAN,
Applicant,
v.
KEVIN MILYARD, Warden, Sterling Correctional Facility, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.
ORDER
At issue is the “Motion by Plaintiff Requesting State Record(s) under 28 U.S.C.
§ 753(f),” (ECF No. 32), filed on February 16, 2012. Applicant requests copies of state
court transcripts and all court recordings that will be used by the Court and
Respondents in deciding this case.
On direct appeal, a trial transcript is an absolute matter of right for an indigent
criminal defendant. See Griffin v. Illinois, 351 U.S. 12 (1956). However, an applicant
seeking relief under 28 U.S.C. § 2254 must first demonstrate his claim is not frivolous
and a transcript is needed to decide the issue before the court before a free transcript is
provided. See United States v. MacCollom, 426 U.S. 317 (1976) (plurality) (dealing with
a § 2255 motion and § 753(f)); Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992)
(applying MacCollom to a § 2254 action). The MacCollom court expressly cited to
circuit court opinions that held indigent petitioners seeking collateral relief did not have
unlimited access to trial transcripts. Ruark, 958 F.2d at 319 (citing MacCollom, 426
U.S. at 327 n. 5). In one of those cases, Hines v. Barker, 422 F.2d 1002 (10th Cir.
1970), the Tenth Circuit held that an indigent § 2254 applicant does not have a
constitutional right to access a free transcript in order to search for error. Id. at 1006-07
(distinguishing Wade v. Wilson, 396 U.S. 282 (1970), where the Court declined to define
a § 2254 applicant’s right to a free transcript).
Applicant fails to assert how his request is related to any claim for relief. “A
habeas proceeding is not a fishing expedition.” See Teti v. Bender, 507 F.3d 50, 60 (1st
Cir. 2007), cert. denied, 552 U.S. 1287 (2008). The request is broad and general, lacks
the specificity to support a finding of good cause, and, therefore, will be denied.
Accordingly, it is
ORDERED that Applicant’s request for state court records, (ECF No. 32), is
denied for lack of specificity.
Dated this 17th day of February, 2012.
BY THE COURT:
_______________________
William J. Martínez
United States District Judge
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?