ISLAAM v. UNITED STATES OF AMERICA

Filing 13

MEMORANDUM AND ORDER, petitioner's application to proceed in forma pauperis is granted; ORDERED that petitioner's request for a copy of his June, 2016 § 2255 motion is denied; ORDERED that petitioner's request for a free copy of the September 10, 2013 transcript is denied without prejudice. Signed by Judge Robert B. Kugler on 2/21/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
SANTO ISLAAM,
:
:
Petitioner,
:
Civ. No. 16-3664 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
MEMORANDUM AND ORDER
:
Respondent.
:
_________________________________________ :
Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner is currently serving a 120-month
sentence after pleading guilty to one count of possession of a weapon by a convicted felon.
Petitioner initially filed this action in June, 2016. (See Dkt. No. 1) However, as petitioner did not
file his § 2255 motion on the updated form, this Court administratively terminated this action,
but gave petitioner the right to reopen. (See Dkt. No. 2) On August 5, 2016, this Court received
petitioner’s § 2255 motion on the updated form. (See Dkt. No. 3) The § 2255 motion raises the
following claims:
1. Due process rights were violated when he asserted his innocence in previous statements
that were ignored.
2. Right to speedy and public trial were violated
3. Counsel never afforded him opportunity to present or confront witnesses against him and
was denied effective assistance of counsel.
Subsequently, respondent was ordered to answer the August 5, 2016 § 2255 motion. (See Dkt.
No. 4)
The government filed its answer to the § 2255 motion on January 27, 2017. Petitioner’s
reply brief is currently due on March 13, 2017.

On February 10, 2017, this Court received a letter from petitioner. (See Dkt. No. 11)
Petitioner makes two requests in this letter. First, he requests a copy of his original § 2255.
Second, he requests a copy of the transcript from September 10, 2013 that decided an “omnibus
motion” by petitioner prior to his guilty plea. Petitioner requests these items so that he can
perfect his reply brief.
Petitioner’s request for a copy of his original June, 2016 § 2255 motion will be denied.
As outlined above, that June, 2016 § 2255 motion is no longer the operative motion in this action
as petitioner perfected his § 2255 motion by filing it on the updated form on August 5, 2016.
Therefore, this Court sees no reason to provide petitioner with a free copy of a document that is
no longer operative in this action.
Petitioner’s request for a free copy of the September 10, 2013 transcript will also be
denied. Federal statutory law controls the provision of free transcripts to indigent defendants:
Fees for transcripts furnished in proceedings brought under section
2255 of this title to persons permitted to sue or appeal in forma
pauperis shall be paid by the United States out of money
appropriated for that purpose if the trial judge or a circuit judge
certifies that the suit or appeal is not frivolous and that the
transcript is needed to decide the issue presented by the suit or
appeal.
28 U.S.C. 753(f) (emphasis added). Pursuant to 753(f), the Court must first determine whether
petitioner is eligible for IFP status. See id.; see also Walker v. People Express Airlines, Inc., 886
F.2d 598, 600 (3d Cir.1989) (citations omitted). Then, the Court may review petitioner's motion
to determine whether or not the suit for which he is requesting transcripts is frivolous, and
whether or not furnishing transcripts free of cost is necessary to decide Petitioner's suit. 28
U.S.C. 753(f); Walker, 886 F.2d at 600.

2

When plaintiff initially filed this action in June, 2016, he included an application to
proceed in forma pauperis. Upon reviewing that application now, it appears as if petitioner is
entitled to in forma pauperis status. Therefore, his application to proceed in forma pauperis will
be granted. However, this Court will not grant petitioner’s request for a free September 10, 2013
transcript at this time. Petitioner provides no reason whatsoever in his letter why furnishing him
a free (presumably additional, see infra Note 1) copy of the September 10, 2013 transcript is
necessary to decide his claims. Instead, he states in conclusory fashion that he needs a copy of
this transcript to perfect his reply. Therefore, this Court will deny this request without prejudice
at this time.1
Accordingly, IT IS this 21st day of February, 2017,
ORDERED that petitioner’s application to proceed in forma pauperis is granted; and it is
further
ORDERED that petitioner’s request for a copy of his June, 2016 § 2255 motion is denied;
and it is further
ORDERED that petitioner’s request for a free copy of the September 10, 2013 transcript
is denied without prejudice; and it is further
ORDERED that the Clerk shall serve this Order on petitioner by regular U.S. mail.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

1

Additionally, it is worth noting that petitioner filed a direct appeal whereby the transcript of the
September 10, 2013 proceedings was ordered. (See Crim. No. 12-776 Dkt. No. 54) Petitioner
does not explain why he needs an additional copy of the September 10, 2013, as one was
presumably available to his counsel on direct appeal.
3