Linzy v. Faulk et al
ORDER denying as moot 22 Motion for Leave to Proceed in Forma Pauperis; denying 23 Motion for Hearing/Conference; granting 24 Motion to Amend/Correct/Modify; denying 25 Motion for Order, by Judge Raymond P. Moore on 8/5/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 14-cv-00962-RM
ALEX HOMER LINZY,
FRANCIS FAULK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER ON PENDING MOTIONS
Applicant, Alex Homer Linzy, a Colorado prisoner, has filed an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his
convictions and sentence imposed in the District Court of County of Denver, Colorado.
On July 16, 2014, I entered an Order to Dismiss in Part and for Answer. (ECF No. 21).
The Respondents’ Answer to Applicant’s remaining claims is due on or before August
16, 2014. On August 4, 2014, Applicant filed several motions, which I address below.
Applicant has filed a Motion for Copy of State Record without Cost Pursuant to
28 U.S.C. § 2250 (ECF No. 25), which Respondents oppose on the ground that the
Rules Governing Section 2254 Cases do not contemplate that a copy of the state court
record be provided to a habeas petitioner. (ECF No. 27). Respondents further argue
that Applicant has not shown good cause for his request at this stage of the
In support of his motion, Applicant relies on 28 U.S.C. § 2250 which 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 clerk of any court of the
United States shall furnish to the petitioner without cost certified copies of such
documents or parts of the record on file in his office as may be required by order of the
judge before whom the application is pending ” (emphasis added).
The Tenth Circuit has implicitly limited the scope of the statute by requiring that
the petitioner first make a specific showing of need. See Hines v. Baker, 422 F.2d 1002,
1006 at n. 9 (10th Cir. 1970) (collecting cases); see also Humphreys v. United States
Parole Comm'n, 977 F.2d 595, 1991 WL 423974, at *5 (10th Cir. Oct. 13, 1991)
(unpublished decision) (affirming the district court's denial of § 2241 petitioner's motion
seeking copies of records because the motion failed to include “a showing of need for
copies of the documents”). Further, an indigent § 2254 petitioner does not have a
constitutional right to access a free transcript in order to search for error. See Ruark v.
Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (citing Hines, 422 F.2d at 1006-07, which
distinguished Wade v. Wilson, 396 U.S. 282 (1970), in which Supreme Court expressly
declined to define the parameters of a § 2254 petitioner's right to a free transcript).
I find that Applicant’s motion for a free copy of the state court record is unduly
broad and premature at this time. Applicant may renew his motion after Respondents
have filed their Answer if he can demonstrate that specific portions of the record are
necessary to establish that he is entitled to federal habeas relief under the high hurdles
imposed by the AEDPA, 28 U.S.C. at § 2254(d) and (e).
Accordingly, it is
ORDERED that the Motion for Copy of State Record without Cost Pursuant to 28
U.S.C. § 2250 (ECF No. 25) is DENIED without prejudice as premature. It is
FURTHER ORDERED that the “Pro-Se Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915" (ECF No. 22) is DENIED as moot because
Applicant paid the $5.00 filing fee. (See ECF No. 4). It is
FURTHER ORDERED that the Motion for Evidentiary Hearing (ECF No. 23) is
DENIED as premature. The Court will determine whether an evidentiary hearing is
warranted after reviewing the Respondents’ Answer, any Reply filed by Applicant, and
the state court record. It is
FURTHER ORDERED that the Motion to Correct Oversight or Clerical Error
Pursuant to FRCP 60(a) (ECF No. 24) is GRANTED as follows: The Order to Dismiss in
Part and For Answer (ECF No. 21) is corrected at p. 23. lines 3 and 4, to delete the
inadvertent reference to “Albert B. Hill.”
DATED at Denver, Colorado, this August 5, 2014.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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?