Young v. United States of America
Filing
75
MEMORANDUM OPINION AND ORDER: Directing that movant's Motion for Transcripts is denied. Signed by Judge John T. Copenhaver, Jr. on 7/1/2011. (cc: Movant; attys; Mag. Judge) (tmr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOSEPH PAUL YOUNG,
Movant
v.
CIVIL ACTION NO. 2:09-1554
(Criminal No. 2:08-00226)
UNITED STATES OF AMERICA,
Respondent
MEMORANDUM OPINION AND ORDER
Pending is movant’s motion to obtain grand jury
transcripts (“motion for transcripts”) pursuant to 28 U.S.C. §
753(f) filed May 31, 2011.
On December 27, 2010, the court entered its Judgment
denying movant’s motion pursuant to 28 U.S.C. § 2255.
failed to appeal the Judgment.
Movant
On May 13, 2011, movant requested
that the court, pursuant to Federal Rule of Criminal Procedure
51, consider as preserved an alleged error during his criminal
case relating to false statements made in a report by an agent of
the Federal Bureau of Investigation (“Rule 51 motion”).
The
court denied the Rule 51 motion, noting that provision was
inapplicable under the circumstances.
It further observed that
if movant wished to pursue a new trial, he was obliged to satisfy
the substantive and procedural requirements of Rule 33.
51 motion was, accordingly, denied.
The Rule
Movant now asserts that he requires grand jury
transcripts in order to aid the development of his agent
falsification allegations.
He concedes that the FBI agent “may
not have testified at the Grand Jury proceedings.”
Trans. at 2).
(Mot. for
He seeks the transcripts solely on the speculative
assumption that the FBI agent may have handled evidence or may
have written reports that could have been presented to the grand
jury.
(See id. (stating also “[i]t is the defenses [sic]
position that items or reporting presented to the Grand Jury may
be tainted by” the FBI agent).
The instant motion for grand jury transcripts is based
upon 28 U.S.C. § 753(f), which provides as follows:
Fees for transcripts furnished in criminal
proceedings to persons proceeding under the Criminal
Justice Act (18 U.S.C. 3006A), or in habeas corpus
proceedings to persons allowed to sue, defend, or
appeal in forma pauperis, shall be paid by the United
States out of moneys appropriated for those purposes.
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).
In view of the recently decided section 2255
motion herein, movant’s request is appropriately adjudicated
according to the second sentence of that portion of section
2
753(f) reproduced above.
So viewed, the transcript is
unnecessary to decide the issue presented.
as no “issue” is properly before the court.
That is so inasmuch
As noted, the
Judgment was entered on movant’s section 2255 motion on December
27, 2010.
No appeal was taken.
He also has not sought leave to
file a second or successive section 2255 motion.
The court, accordingly, ORDERS that the motion for
transcripts be, and it hereby is, denied.
The Clerk is directed to forward copies of this written
opinion and order to the movant, all counsel of record, and the
United States Magistrate Judge.
DATED: July 1, 2011
John T. Copenhaver, Jr.
United States District Judge
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