Olton v. USA

Filing 17

ORDER granting 13 Motion for Extension of Time to File Response/Reply re 10 MOTION for Summary Judgment filed (Responses due by 7/21/2010.); denying 14 Motion for Transcripts; denying 16 Motion to Compel. Signed by District Judge Martin Reidinger on 6/30/2010. (Pro se litigant served by US Mail.) (tmg)

O l t o n v. USA

D o c . 17

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H AR L O TTE DIVISION C IV IL CASE NO. 3:08cv516 [C R IM IN AL CASE NO. 3:03cr127]

R IC H AR D OLTON,

) ) P e t it io n e r , ) ) vs . ) ) U N IT E D STATES OF AMERICA, ) ) R e s p o n d e n t. ) _______________________________ )

ORDER

TH IS MATTER comes before the Court upon Petitioner's Motion for E xte n s io n of Time [Doc. 13], filed May 27, 2010; Petitioner's Motion to C o m p e l [Doc. 16], filed May 28, 2010; and Petitioner's "Motion for True, A c c u ra te , and Complete Transcript" [Doc. 14], filed June 1, 2010. O n November 13, 2008, Petitioner filed a Motion to Vacate, Set A s id e , or Correct Sentence with this Court. [Doc. 1]. On May 12, 2010, R e s p o n d e n t filed a Motion for Summary Judgment. [Doc. 10]. On May 13, 2 0 1 0 , this Court issued a Roseboro notice to Petitioner informing him that h e had 30 days in which to respond to the Motion for Summary Judgment. [Doc. 12]. Petitioner has responded by filing the three above-referenced m o tio n s .

Dockets.Justia.com

In his motion for transcripts, Petitioner requests a copy of the sidebar c o n fe re n c e and the colloquy with the jury that occurred during his trial. In s u p p o rt of his request, Petitioner asserts that he "vividly recalls that the o m itte d portion of the trial transcript contains an improper colloquy to which tria l counsel did not object." [Doc. 14 at 2]. Transcripts are provided to indigent prisoners in proceedings brought u n d e r § 2255 "if the trial judge or a circuit judge certifies that the suit or a p p e a l is not frivolous and that the transcript is needed to decide the issue p re s e n te d by the suit or appeal." 28 U.S.C. § 753(f). The Court will not p ro vid e transcripts to indigent prisoners merely so that they may "comb the re c o rd in the hope of discovering some flaw." Jones v. Superintendent, Va. S ta te Farm, 460 F.2d 150, 152 (4th Cir. 1972). A review of Petitioner's basis for requesting the transcript does not a llo w the Court to conclude that the request is not frivolous. That is, P e titio n e r provides no specifics whatsoever as to the basis or nature of the c la im for which he believes he needs the transcripts. Indeed, Petitioner's r e q u e s t appears to be nothing more than a "fishing expedition." Consequently, Petitioner's request for transcripts will be denied. In his Motion to Compel, Petitioner asks the Court to compel his fo rm e r defense counsel to produce to Petitioner all work product
2

a s s o c ia te d with Petitioner's criminal case. Petitioner alleges that "[d]espite [h is ] request for all work product, counsel had not provided such nor had he m a d e Petitioner aware that such existed." [Doc. 16 at 2]. In particular, P e titio n e r requests the production of the Motion to Disclose the Identity of In fo rm a n ts , the Motion to Disclose Any Agreements, and Motion to P re s e rve Rough Notes.1 [Id.]. "A habeas petitioner, unlike the usual civil litigant in federal court, is n o t entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 5 2 0 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Thus, d is c o ve ry is granted only for "good cause." Rule 6(a), Rules Governing § 2 2 5 5 Proceedings for the United States District Courts. A petitioner must m a k e specific allegations establishing reason to believe that, if the facts are fu lly developed, he is entitled to relief. The burden is on the petitioner to d e m o n s tr a te the materiality of the information sought. Stanford v. Parker, 2 6 6 F.3d 442, 460 (6th Cir. 2001). Moreover, "Rule 6 does not `sanction fis h in g expeditions based on a petitioner's conclusory allegations.'" W illia m s v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quoting Rector v. J o h n s o n , 120 F.3d 551, 562 (5th Cir. 1997)). Here, Petitioner merely

The Court notes that each of the specified documents were filed with the Court and are available to Petitioner in the same manner as they are to all other members of the public who have proper access thereto.
1

3

a s s e rts that he needs these documents to respond to the Motion for S u m m a ry Judgment. Such an assertion does not establish the materiality o f the information requested or the good cause necessary for postc o n vic tio n discovery, and thus his motion will be denied. Petitioner also has requested an extension of time in which to re s p o n d to Respondent's Motion for Summary Judgement. For good c a u s e shown, this Court will grant Petitioner an extension up to and in c lu d in g July 21, 2010. IT IS, THEREFORE, ORDERED that: 1. Petitioner's Motion for Extension of Time [Doc. 13] is

G R AN TE D and Petitioner has up to and including July 21, 2010, in which to respond to respondent's Motion for Summary Judgment; 2. 3. Petitioner's Motion for Transcripts [Doc. 14] is DENIED; and P e titio n e r's Motion to Compel [Doc. 16] is DENIED.

IT IS SO ORDERED.
Signed: June 30, 2010

4