Sperow v. USA

Filing 6

MEMORANDUM DECISION AND ORDER granting in part and denying in part 3 Motion for Copy of Reporters Transcripts; staying 2 Notice of Filing and Order Setting Briefing Schedule Regarding Motion Pursuant to 28 § USC 2255. The Clerk of Court sha ll provide to Sperow: a. A copy of the transcript of the 6/25/2009 continued sentencing hearing filed on 9/10/2009 appearing at Dkt. 949. b. A copy of the transcripts requested by the Government of the changeof plea hearing and the sentencing hearing of 6/17/2009 when they become available on CM/ECF. c. A Prisoner Application to Proceed In Forma Pauperis form. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

Case No. 1:12-cv-00158-BLW
1:06-cr-00126-BLW
MEMORANDUM DECISION AND
ORDER

GREGORY FRANK SPEROW,
Defendant-Movant.

Pending before the Court is Gregory Frank Sperow’s (“Sperow”) Motion for Copy
of Reporter’s Transcripts (Dkt. 3). Sperow requests a copy of the transcripts of the
change of plea hearing held on September 3, 2008; the sentencing hearing held on June
17, 2009; and the continued sentencing hearing held on June 25, 2009. See Dkts. 665,
680, and 870. Sperow contends he needs the transcripts to prepare his Memorandum,
Points and Authorities in support of his pending 28 U.S.C. § 2255 Motion.
The Government has filed a Response (Dkt. 5) indicating that it is in the process of
ordering the transcripts for the change of plea hearing and the June 17, 2009 sentencing

MEMORANDUM DECISION AND ORDER - 1

hearing and noting that the transcript of the June 25, 2009 continued sentencing hearing
was previously prepared and filed on September 10, 2009. See Dkt. 949. It has no
objection to providing Sperow with copies of the transcripts.
The Court will direct the Clerk of Court to forward a copy of the transcript of the
June 25, 2009 sentencing hearing to Sperow. However, Sperow is not entitled to the
other two transcripts at this time absent the Government’s ordering them.

A federal prisoner does not have an absolute right to any transcripts of his criminal
proceedings in order to prepare a § 2255 motion. See United States v. MacCollum, 426
U.S. 317 (1976). However, as Sperow correctly notes, after a § 2255 motion is filed, a
transcript may be furnished to a prisoner at Government expense if (1) the prisoner is
entitled to proceed in forma pauperis, and (2) the Court certifies that the claim raised in
the § 2255 proceeding is not frivolous and the transcript is needed to decide the motion.
See 28 U.S.C. § 753(f) (emphasis added). Neither of the two conditions has been met in
this case.
Sperow has not requested in forma pauperis status. He has merely stated that he
“continues in his forma pauperis status” based on the Court’s previous determination that
he was indigent. Motion at 1. There is no fee for filing a § 2255 motion. Therefore,
there is no need to file an in forma pauperis affidavit at the commencement of the § 2255
proceeding. However, it is advisable to file it so there will be no need for an indigency
adjudication later in the proceedings if it becomes necessary to appoint counsel or grant

MEMORANDUM DECISION AND ORDER - 2

Defendant any other rights to which an indigent is entitled such as provision of
transcripts. See Advisory Committee Notes to Rule 3 of Rules Governing Section 2255
Proceedings.
The Court will direct the Clerk of Court to send Sperow a Prisoner Application to
Proceed in Forma Pauperis form. He should return the completed form to the Court
together with the required prisoner trust account statement as directed on the form. Even
if Sperow were to apply and qualify for in forma pauperis status, however, the Court
cannot make the requisite certification that the transcripts of the plea hearing and the
June 17, 2009 sentencing hearing are necessary to decide the issues presented in the
§ 2255 Motion.
Sperow has not alleged ineffective assistance of counsel at the plea hearing or any
claims involving the plea itself. Therefore, the plea hearing transcript is not necessary to
resolve a pending issue.
Sperow has alleged several claims of ineffective assistance of counsel pertaining to
the sentencing portion of the proceedings. For example, he alleges ineffective assistance
of counsel for failing to challenge the Court’s reliance on certain factors increasing the
offense level under the Sentencing Guidelines (Claim 7), for failing to challenge allegedly
erroneous amounts of marijuana and methamphetamine attributed to him in the
Presentence Report (Claims 8 and 9), for failing to file objections to the Presentence
Report (Claim 10), for failing to notify the Court that the Presentence Report was
“factually inaccurate and fundamentally defective” (Claim 11), for failing to challenge the
MEMORANDUM DECISION AND ORDER - 3

sentence disparity between him and his co-Defendants (Claim 13), and for failing to bring
to the Court’s attention at sentencing that it did not properly credit him with time served
in a previous sentence (Claim 17).
The June 25, 2009, sentencing hearing transcript (which has already been prepared
and is being provided to Sperow) clearly indicates that the Court did not sentence Sperow
under the Sentencing Guidelines which may render Sperow’s claims of ineffective
assistance of counsel pertaining to Sentencing Guideline issues moot. Rather, the Court
sentenced him pursuant to the binding Plea Agreement entered into pursuant to Fed. R.
Crim. P. 11(c)(1)(C). See 6/25/09 Sent. Tr. at 13-14; 18-19. Furthermore, the transcript
contains a lengthy discussion of the Court’s computation of the credit for the prior
sentence as well as the Court’s discussion of disparity issues. Id. at 5-10 (credit for prior
sentence); 17-18 (disparity).
Because the June 17, 2009 sentencing transcript does not appear to be required to
resolve the sentencing claims and Sperow did not raise any plea hearing issues, the Court
will deny the Motion for Transcripts as to the change of plea hearing and the June 17,
2009 sentencing hearing. However, the Court will direct the Clerk of Court to forward to
Sperow copies of the two transcripts if they are ordered by the Government to defend the
§ 2255 Motion. In other words, Sperow is not entitled at this time to those transcripts
under 28 U.S.C. § 753(f), but the Court will order that he be provided a copy of each

transcript requested by the Government.
The Government has also filed a Motion for Order Concerning Attorney-Client
MEMORANDUM DECISION AND ORDER - 4

Privilege and Motion to Stay the Instant Proceedings (Dkt. 4). The Court will reserve
ruling on the Motion for Order Concerning Attorney-Client Privilege until Sperow has
had an opportunity to respond. However, pending resolution of the attorney-client
privilege motion and preparation of the transcripts, the Court will grant the Motion to
Stay its Order dated March 29, 2012 directing a response within thirty (30) days.
ORDER
IT IS ORDERED:
1.

Sperow’s Motion for Copy of Reporter’s Transcripts (Dkt. 3) is
GRANTED IN PART. The Motion is DENIED with respect to the plea
hearing and the June 17, 2009 sentencing hearing.

2.

The Clerk of Court shall provide to Sperow:
a.

A copy of the transcript of the June 25, 2009 continued sentencing
hearing filed on September 10, 2009 appearing at Dkt. 949.

b.

A copy of the transcripts requested by the Government of the change
of plea hearing and the sentencing hearing of June 17, 2009 when
they become available on CM/ECF.

c.

A Prisoner Application to Proceed In Forma Pauperis form.

MEMORANDUM DECISION AND ORDER - 5

3.

The Court’s Order (Dkt. 2) of March 29, 2012, directing the Government to
file a Response to the § 2255 Motion within thirty (30) days of that Order
is STAYED until further notice.

DATED: April 25, 2012

B. LYNN WINMILL
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 6