
USCA1 Opinion

	




          August 5, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1205                                     UNITED STATES,                                      Appellee,                                          v.                              BARBARA BUSHWAY DE SOUZA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Barbara Bushway De Souza on brief pro se.            ________________________            Peter  E. Papps,  United  States Attorney,  on Motion  for Summary            _______________        Disposition, for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Barbara Bushway Desouza pled guilty in                      __________            1992 to drug charges  and was sentenced.  She  did not appeal            her  sentence directly.   However,  Desouza brought  a motion            under 28  U.S.C.   2255, alleging that a Sentencing Guideline            amendment  permitting  an additional  one-level  reduction in            base offense level for acceptance of responsibility should be            applied to  reduce her sentence.   The district  court denied            her motion  because the amendment became  effective after she            was sentenced  and could  not be  applied retroactively.   We            affirmed  in United States v.  Desouza, -- F.2d  -- (1st Cir.                         _____________     _______            1993).  Before our  decision was rendered, Desouza petitioned            the district  court to  have certain transcripts  prepared at            government expense, averring that  she needed the transcripts            to "prepare [a] motion in order to secure my rights under the            law."   The district court denied her request because she had            not given any  reason why the transcripts  should be prepared            at government expense.  Desouza has appealed.  We now affirm.                      The district court's denial of Desouza's motion was            proper under our  case law.  In Ellis v.  State of Maine, 448                                            _____     ______________            F.2d  1325, 1327  (1st  Cir. 1971),  we  held that  a  habeas            petitioner alleging simply that his rights had been infringed            had  no  right  to a  free  transcript  without  showing more            specifically that his claim had some merit.  We stated:                      As to the request for a transcript, it is                      important to  note that  we are  not here                      concerned  with  a direct  appeal  from a                      conviction, or a state habeas which takes                      the place  of  such an  appeal,  where  a                      transcript  may  be  a  matter  of  right                      without  showing  merit  in  the  appeal.                      [Citation omitted.]  Appellant's petition                      is  wholly  for collateral  relief.   For                      this unusual and exceptional relief there                      should be a burden upon the petitioner to                      come into court with his case, not simply                      to try  to make one  out.  This  does not                      mean, of course, with his full case,  but                      he  must  show merit,  not  just personal                      opinion.              Id.  In her motion to the district court, Desouza stated only            ___            that  she  needed the  transcripts  to  prepare a  motion  to            "secure  [her]  rights."  Thus, she has not even alleged that            her rights have been violated, as the unsuccessful petitioner            in Ellis  did,  nor, obviously,  has  she given  any  details               _____            suggesting that she could make out a case that her rights had            been infringed.  Her brief to this court is no more specific.            It  states only that she  is preparing a  section 2255 motion            and that "[i]n  order to be able to address  the right issues            and effectively and accurately present [my] case . .  . , [I]            need[] to  refer to  [the]  transcripts .  .  . ."    Because            Desouza,  who  is seeking  collateral  relief,  has not  even            described in general terms  what the nature of her  claim is,            let alone given  any specific facts to show that she has some            meritorious claim,  it is clear that the district court acted            properly in denying her request for a free transcript.                      We  note further  that  Desouza's  motion for  free            transcripts  would also  have been  properly denied  under 28                                        - 3 -            U.S.C.    753(f).  That statute permits the provision of free            transcripts  to indigents pursuing  their section 2255 rights            under certain circumstances.1  It states:                      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.            Thus, under section  753(f) Desouza  would be  entitled to  a            free  transcript only  if the  district court  had determined            (or, presumably, if this court upon appeal were to determine)            that her section 2255  motion was not frivolous and  that the            requested transcripts  were necessary  to decide  her motion.            The  Supreme Court has held that  the requirements imposed on            indigents seeking  transcripts  which are  contained in  this            provision of  section 753(f) are constitutional.   See United                                                               __________            States  v. MacCollom,  426  U.S. 317,  325 (1976)  (plurality            ______     _________            decision).  Since Desouza has not described the basis for her            suit or any specific facts which might support a section 2255            motion,  we cannot say that her motion would not be frivolous                                            ____________________            1.  The  record  does not  show  whether  the district  court            granted Desouza's application to proceed in forma pauperis in            seeking  the  transcripts.   In  light  of other  information            contained  in the record, however, we  may assume either that            the court granted her  IFP application or that it  would have            done so.                                          - 4 -            or  that  the transcripts  would be  necessary to  decide her            motion.   Thus,  we conclude  that  the district  court acted            properly in denying her motion for free transcripts.  See id.                                                                  _______            at 326 (had the section 2255 petitioner provided the district            court with  some factual allegations respecting  his claim of            ineffective  assistance  of  counsel,  and  not  merely  with            conclusory allegations, and had he stated explicitly what his            counsel's error was, the court might have  concluded that his            claim  was not frivolous and that a free transcript should be            furnished);  Sistrunk v.  United  States, 992  F.2d 258,  259                         ________     ______________            (10th Cir.  1993) (a  conclusory allegation that  a defendant            was denied  effective assistance of counsel  does not satisfy            the requirements of section 753(f)).2                                            ____________________            2.  Because  Desouza  failed to  make  any  showing that  her            section  2255  motion  would not  be  frivolous  or that  the            requested  transcripts  would  be  necessary  to  decide  her            motion,  we need not  decide whether she  should have brought            her  section  2255  motion   before  seeking  to  obtain  the            transcripts.   See Sistrunk,  992 F.2d  at 259  (citing cases                           ____________            which have held that the actual filing of the habeas petition            is a necessary prerequisite to seeking free transcripts under            section  753(f),  but  not  deciding whether  to  adopt  that            interpretation  in light  of petitioner's failure  to satisfy            the  statutory  prerequisites);  see  also United  States  v.                                             ________________________            Chambers, 788 F. Supp. 334 (E.D. Mich. 1992)  (discussing the            ________            conflict on this point among the circuit courts).  Similarly,            because Desouza seeks the  preparation of transcripts and not            simply a copy  of transcripts already in  existence, there is            no need to consider whether, not meeting  the requirements of            section 753(f),  she  could  obtain  free  transcripts  under            section 753(b).  See Rush v. United States, 559 F.2d 455, 458                             ________    _____________            (7th  Cir. 1977)  (reversing the  district court's  denial of            petitioner's   motion  for  free  transcripts  under  section            753(f); because  the transcripts  were already  in existence,            the  court  of  appeals  held  that  the  petitioners,  whose            conclusory allegations respecting  their section 2255  motion                                        - 5 -                      The judgment of the district court is affirmed.3                                                            ________                                            ____________________            did  not meet the requirements of section 753(f), had a right            to the transcripts under  section 753(b), which provides that            "the  original records" in the clerk's office must be open to            inspection  "by  any  person  without  charge").    The  Rush                                                                     ____            decision has been criticized.  See Sistrunk, 992 F.2d at 260;                                           ___ ________            United States  v.  Losing, 601  F.2d  351, 352-53  (8th  Cir.            _____________      ______            1979).            3.  Because Desouza  has not  said what  grounds she  has for            bringing a second section 2255 motion,  we cannot say whether            her motion would  be likely to  be dismissed under Rule  9 of            the Rules  Governing    2255 Proceedings, given  her previous            section 2255 motion, as the government argues.                                          - 6 -
