United States v. Francisco Audia

87 F.3d 1323

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Francisco AUDIA, Defendant-Appellant.

No. 95-50613.

United States Court of Appeals, Ninth Circuit.

Submitted June 11, 1996. * Decided June 18, 1996.

Before: CANBY, NOONAN, and LEAVY, Circuit Judges.

1

MEMORANDUM ** 2

Francisco Audia, a federal prisoner, appeals pro se the district court's order denying his request for free transcripts of portions of his criminal trial and pretrial proceedings pursuant to 28 U.S.C. § 753 (f). Audia contends that he needs the transcripts and copies of various court records in order to file a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel on direct appeal. Section 735(f) does not authorize the district court to order payment for transcripts if the defendant has not yet filed a collateral attack on his conviction or sentence under § 2255. United States v. MacCollom, 426 U.S. 317, 321 (1976). Accordingly, we affirm the district court's order.

3

To obtain transcripts, Audia first must file a § 2255 motion. After he files the motion, the district court will decide whether he also has met the other conditions for obtaining transcripts at government expense. See 28 U.S.C. § 735 (f) (district court must certify that § 2255 motion is not frivolous and that transcript is needed to decide issue presented by motion).

4

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3