White v. USA

Filing 28

ORDER signed by Judge J P Stadtmueller on 2/9/10 denying 26 petitioner's motion for order pursuant to USCA 28-1735b, 1734b. (cc: petitioner, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ J O H N N Y RAY W H IT E , P e t it io n e r , v. U N IT E D STATES OF AMERICA, R e s p o n d e n t. ____________________________________________ Case No. 07-CV-262

ORDER
N e a rly two years ago, this court denied the petition of Johnny Ray W h ite ("W h ite") for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Docket #14). The petitioner's attempts to appeal the decision of this court failed, as the Seventh C irc u it, on November 13, 2008, finding "no substantial showing of a denial of a c o n s titu tio n a l right," denied W h ite 's request for a certificate of appealability and W h ite 's motion to proceed in forma pauperis. (Docket #25). Nine months later, on A u g u s t 17, 2009, petitioner, Johnny Ray W h it e ("W h it e" ) filed a motion with this court to "issue an order directing the . . . United States Attorney for the Eastern District of W is c o n s in to show cause why the Petitioner [sic] should not be granted." (Docket # 2 6 ). The petitioner's motion, hardly a model for clarity, appears to be asking, p u rs u a n t to 28 U.S.C. §§ 1734 and 1735, for a hearing to determine the content of re c o r d s for which he and the United States Attorney's Office and the Clerk's Office o f this court have been unable to locate. W h ite 's motion is propelled by his request la s t year for a copy of several pages of the pager phone records that were used to

d isc re d it a witness at his criminal trial in 2004. Because the United States is a party to this action, the determination regarding whether an evidentiary hearing is needed is guided by 28 U.S.C. § 1735(b),1 which requires: W h e n e ve r the United States is interested in any lost or destroyed re c o rd s or files of a court of the United States, the clerk of such court a n d the United States attorney for the district shall take the steps n e c e s s a ry to restore such records or files, under the direction of the ju d g e s of such court. 2 8 U.S.C. § 1735(b) is a discretionary rule that requires a hearing to restore a record "only where a judge of the district court so directs." Rivers v. United States, 9 2 3 F. Supp. 92, 98 (W .D . Va. 1996). In this case, W h ite 's motion, which contains a letter from the United States Department of Justice, demonstrates that the United S ta te s Attorney has taken the necessary steps in attempting to restore the records in question. W h ile the Department of Justice was unable to locate the supposed m is s in g pages, nothing in the petitioner's motion to the court indicates that having a hearing to restore the record is either necessary or would be productive. M o re o ve r, this court has already dismissed W h ite 's habeas petition. Inasmuch as th e petitioner seeks the records from his trial to support another § 2255 challenge to the validity of that conviction, any petition would be successive and likely

Initially, its not entirely clear to this court that 28 U.S.C. § 1735 is a proper vehicle for obtaining a c o p y of a record after a conviction has becom e final. The dearth of case law on the statute seem s to indicate th a t § 1735 is used quite sparingly, such as when a court m u s t authenticate evidence whose authenticity is d e p e n d e n t on a evidence that is lost, such as an affidavit. See, e.g., United States v. Scully, 546 F.2d 255, 2 7 0 (9th Cir. 1976). Nothing, including the petitioner's m o tio n , dem o n s tr a te s that § 1735 has any relevance to the case at hand, where the court has no reason to m a k e a determ in a tio n on the evidence, as the court has a lr e a d y dism is s e d W h it e 's petition. Nonetheless, the court will address the m e r i ts of the petitioner's argum e n t .

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d ism iss e d by this court.2 As such, holding a hearing to find the missing pages of a c rim in a l record would likely be a "grand waste of efforts by both the court and the p a r tie s . " Mark Travel Corp. v. Walter, No. 09-CV-101, 2009 U.S. Dist. LEXIS

1 1 5 5 0 6 , at *17 (E.D. W is . Dec. 11, 2009). Finally, the court notes that "a prisoner h a s no constitutional right" to receive a free copy of trial records post-appeal. United S ta te s v. Groce, 838 F. Supp. 411, 416 (E.D. W is . 1993) (denying a defendant's m o tio n for transcripts as the opposite ruling would "encourage `fishing expeditions' a n d other abuses by potentially litigious prisoners.") The court directs the petitioner to follow the recourse suggested by the Department of Justice in the letter sent to M r. W h ite if the petitioner is displeased with the decision of the administrative a g e n c y. Accordingly, IT IS ORDERED that the petitioner's motion "for order pursuant to USCA 281 7 3 5 b , 1734b" (Docket #26) be and the same is hereby DENIED. Dated at Milwaukee, W is c o n s in , this 9th day of February, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

The general rule is that "a claim presented in a second or successive habeas corpus application u n d e r section 2255 that was presented in a prior application shall be dism is s e d ." 28 U.S.C. § 2244(b)(1). W h ile § 2244(b)(1) provides exceptions to this rule, W h ite has not indicated that any of those exceptions apply o r that the claim s he seeks to pursue are different than those he previously brought.

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