B-154384, AUG. 3, 1964

B-154384, AUG. 3, 1964

TO THE HONORABLE WARREN OLNEY III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

THIS IS IN REFERENCE TO LETTER DATED JUNE 4, 1964, AND ENCLOSURES, FROM MR. WILL SHAFROTH, DEPUTY DIRECTOR, REQUESTING A DECISION AS TO WHETHER 28 U.S.C. 753/F) ALLOWS YOUR OFFICE TO PURCHASE TRANSCRIPTS OF AN INDIGENT PETITIONER'S PRIOR CRIMINAL TRIAL FOR HIS USE IN PROCEEDINGS BROUGHT UNDER 28 U.S.C. 2255 TO VACATE HIS SENTENCE.

SECTION 753 (F) OF TITLE 28, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * FEES FOR TRANSCRIPTS FURNISHED IN CRIMINAL OR HABEAS CORPUS PROCEEDINGS TO PERSONS ALLOWED TO SUE, DEFEND, OR APPEAL IN FORMA PAUPERIS SHALL BE PAID BY THE UNITED STATES OUT OF MONEY APPROPRIATED FOR THAT PURPOSE. FEES FOR TRANSCRIPTS FURNISHED IN OTHER PROCEEDINGS TO PERSONS PERMITTED TO APPEAL IN FORMA PAUPERIS SHALL ALSO BE PAID BY THE UNITED STATES IF THE TRIAL JUDGE OR A CIRCUIT JUDGE CERTIFIES THAT THE APPEAL IS NOT FRIVOLOUS BUT PRESENTS A SUBSTANTIAL QUESTION. THE REPORTER MAY REQUIRE ANY PARTY REQUESTING A TRANSCRIPT TO PREPAY THE ESTIMATED FEE IN ADVANCE EXCEPT AS TO TRANSCRIPTS THAT ARE TO BE PAID FOR BY THE UNITED STATES.'

THE ABOVE PROVISION AUTHORIZES TRANSCRIPTS IN CRIMINAL CASES, IN HABEAS CORPUS PROCEEDINGS, AND IN OTHER PROCEEDINGS IN WHICH PERSONS ARE PERMITTED TO APPEAL IN FORMA PAUPERIS. IT IS THE POSITION OF YOUR OFFICE THAT THE AUTHORITY DOES NOT EXTEND TO MOTIONS TO VACATE SENTENCES BROUGHT UNDER SECTION 2255 OF TITLE 28, AND THEREFORE REQUESTS FOR PAYMENT FOR TRANSCRIPTS TO BE USED IN SUCH PROCEEDINGS HAVE NOT BEEN HONORED. THE BILL, H.R. 2838, 88TH CONGRESS, INTRODUCED AT THE REQUEST OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, TO AMEND THE ABOVE-QUOTED SECTION TO PROVIDE SPECIFIC AUTHORITY FOR THE FURNISHING OF TRANSCRIPTS FOR USE IN SECTION 2255 PROCEEDINGS, HAS PASSED THE HOUSE AND IS REPORTED AS NOW PENDING IN THE SENATE JUDICIARY SUBCOMMITTEE NUMBER 4. IT IS REQUESTED HOWEVER IN THE DEPUTY DIRECTOR'S LETTER THAT UNTIL SUCH TIME AS CLARIFYING LEGISLATION IS PROVIDED, GUIDANCE BE FURNISHED WITH RESPECT TO REQUESTS NOW BEFORE YOUR OFFICE TO INCUR THE COST OF PREPARING TRANSCRIPTS OF INDIGENT PETITIONER'S PRIOR CRIMINAL TRIALS FOR USE IN PROCEEDINGS BROUGHT UNDER 28 U.S.C. 2255. YOU SPECIFICALLY REQUEST TO BE ADVISED WHETHER 28 U.S.C. 753 (F) ALLOWS YOUR OFFICE TO PURCHASE TRANSCRIPTS IN THE CASES HEREINAFTER DESCRIBED.

"THE FIRST CASE IS FROM THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. THERE, DISTRICT JUDGE LUTHER BOHANON, BY ORDER DATED APRIL 13, 1964, * * * DIRECTED THE RECORD IN THE PRIOR TRIAL PROCEEDING OF UNITED STATES V. VISENTE M. FLORES AND TROY LEE PRICE (NO. 17841-CRIM) BE TRANSCRIBED FOR USE BY THE PETITIONER FLORES IN HIS APPEAL IN FORMA PAUPERIS FROM A DENIAL OF HIS MOTION TO VACATE SENTENCE UNDER 28 U.S.C. 2255. THE APPROXIMATE COST OF THIS TRANSCRIPT IS $550.00.

"THE SECOND CASE ARISES IN THE WESTERN DISTRICT OF NEW YORK AND CALLS FOR THE PREPARATION OF THE TRANSCRIPT IN THE CRIMINAL CASE OF UNITED STATES V. CURRIE, MITCHELL, LEWIS, DAWSON, PRICE AND GODFREY, AT AN ESTIMATED COST OF $1,900.00, FOR USE BY PETITIONERS IN THEIR APPEALS IN FORMA PAUPERIS FROM A DENIAL OF THEIR MOTION TO VACATE SENTENCE UNDER 28 U.S.C. 2255. THEREQUEST IS SUPPORTED BY TWO COURT ORDERS: THE FIRST DATED MARCH 31, 1964 BY CIRCUIT JUDGE MARSHALL * * * ORDERING THE TRIAL TRANSCRIPT ON BEHALF OF INDIGENT PETITIONER APPELLANT, PRICE; THE SECOND DATED APRIL 14, 1964 BY THE DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK * * * ORDERING THE TRIAL TRANSCRIPTION FOR THE ATTORNEY ON BEHALF OF PETITIONERS, MITCHELL AND LEWIS.

"IN THE THIRD CASE, POE V. UNITED STATES, CIVIL NO. 2890-63, U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIRCUIT JUDGE SKELLY WRIGHT, (SITTING AS A DISTRICT JUDGE BY DESIGNATION PURSUANT TO 28 U.S.C. 29 (C) (, HELD * * * THAT AN INDIGENT PETITIONER, WAS ENTITLED TO BE PROVIDED A TRANSCRIPT OF HIS PREVIOUS CRIMINAL TRIAL IN PROCEEDINGS UNDER 28 U.S.C.2255 I.E., SHORT OF APPEAL. THIS AGAIN WAS NECESSARY FOR USE IN PREPARING HIS MOTION TO VACATE SENTENCE UNDER TITLE 28 U.S.C. SECTION 2255.'

SECTION 753 (F) OF TITLE 28, U.S. CODE, PROVIDING FOR TRANSCRIPTS AT FEDERAL EXPENSE, IS SILENT WITH RESPECT TO SECTION 2255 PROCEEDINGS. SINCE SUCH PROCEEDINGS DO NOT COME WITHIN THE DEFINITION OF THE CLASSES COVERED BY SAID SECTION 753 (F) WE MUST AGREE WITH THE POSITION OF YOUR OFFICE IN REFUSING TO AUTHORIZE PAYMENTS. IT IS INDICATED IN THE POE DECISION, SUPRA, THAT DENIAL OF A FREE TRANSCRIPT TO INDIGENT PETITIONERS PRESENTS A CONSTITUTIONAL PROBLEM AND, WHILE THIS MAY WELL BE SO, AND AS STATED IN OUR DECISION OF MARCH 17, 1964, B-153485, TO YOU, WE CANNOT OVERLOOK THE FACT THAT THE APPROPRIATION AND USE OF PUBLIC FUNDS ARE CONSTITUTIONAL PREROGATIVES OF THE CONGRESS. SECTION 753 (F) DOES NOT AUTHORIZE THE USE OF APPROPRIATIONS FOR TRANSCRIPTS TO BE USED IN SECTION 2255 PROCEEDINGS, AND THEREFORE, THE ACTION TAKEN BY YOUR OFFICE IN THE MATTER APPEARS CORRECT.