                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         April 7, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 05-4263
v.                                                   (District of Utah)
                                              (D.C. No. 2:04-CR-252-02-TC)
AUGUSTINE CRUZ-LOPEZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant-appellant, Augustine Cruz-Lopez was charged in a three-count,

superseding information with drug and immigration crimes. Pursuant to the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
terms of an agreement with the government, Cruz-Lopez pleaded guilty to two of

those counts; the third count was dismissed on the government’s motion. On

October 12, 2004, Cruz-Lopez was sentenced to seventy months’ incarceration.

Nearly one year later, on September 6, 2005, Cruz-Lopez filed a motion seeking a

free transcript of the criminal proceedings “in order to proceed with his appeal.”

The district court denied the motion, concluding Cruz-Lopez had not brought a

direct appeal in this matter and the time for bringing an appeal had run.

       Cruz-Lopez filed this appeal from the district court’s order denying him

the free transcript. In his opening brief, he concedes he did not file a direct

criminal appeal but argues, for the first time, that he needs the transcript to assist

him in preparing a motion for post-conviction relief under 28 U.S.C. § 2255.

Although an indigent criminal defendant has an absolute right to a transcript on

direct appeal, our review of the record confirms that Cruz-Lopez has never filed a

direct appeal . See Ruark v. Gunter , 958 F.2d 318, 319 (10th Cir. 1992). Because

there is no similar constitutional right to a free transcript in post-conviction

proceedings, Cruz-Lopez must file a separate motion in his § 2255 proceeding

demonstrating that his claims are “not frivolous and that the transcript is needed

to decide the issue presented by the suit.”     Sistrunk v. United States , 992 F.2d

258, 259 (10th Cir. 1993).




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      Because Cruz-Lopez did not file a direct appeal, we conclude the district

court did not err when it denied Cruz-Lopez’s motion seeking a free transcript

and, accordingly, we affirm the district court’s order. Cruz-Lopez’s motion to

proceed in forma pauperis on appeal is    denied .

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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