                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-13443                 JUNE 20, 2011
                                                           JOHN LEY
                         Non-Argument Calendar               CLERK
                       ________________________

                  D.C. Docket No. 1:05-cr-20596-MGC-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

EDUARDO HERNANDEZ,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 20, 2011)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
       Eduardo Hernandez, a federal prisoner proceeding pro se, appeals the

district court’s order denying his motion to compel his former counsel to

relinquish discovery material, including his trial transcript, and to equitably toll

the one-year limitation period for filing a 28 U.S.C. § 2255 motion.1 After

review,2 we affirm the district court.

       “Fees for transcripts furnished in proceedings brought under section 2255

. . . to persons permitted to sue . . . in forma pauperis shall be paid by the United

States . . . if the trial judge . . . certifies that the suit . . . is not frivolous and that the

transcript is needed to decide the issue presented by the suit . . . .” 28 U.S.C.

§ 753(f). We have previously affirmed a district court’s denial of a federal

prisoner’s transcript request where the appellant had no appeal pending and had

not moved to vacate his sentence under § 2255. See Walker v. United States, 424




       1
        Although Hernandez’s pro se notice of appeal from the order denying his motion
mentioned the then-pending motion for reconsideration, the appeal from the denial of the motion
for reconsideration is not properly before us because Hernandez failed to file an amended or
second notice of appeal. See Bogle v. Orange Cnty. Bd. Of Comm’rs, 162 F.3d 653, 661 (11th
Cir. 1998) (holding that “Rule 3(c) requires that a notice of appeal designate an existent
judgment or order, not merely one that is merely expected or that is, or should be, within the
appellant’s contemplation when the notice of appeal is filed”).
       2
        We review questions concerning subject matter jurisdiction, including ripeness, de novo.
Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). “We also review a district court’s legal
decision on equitable tolling de novo.” Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir.
2002).


                                               2
F.2d 278, 279 (5th Cir. 1970)3 (holding that “only where a [habeas] petitioner . . .

has been granted leave to proceed in forma pauperis and his application is pending

before the court is that petitioner is entitled to be furnished copies of court records

without costs.”). Moreover, “[b]ased on the plain language and necessary

operation of [28 U.S.C. § 753(f)], . . . a motion for a free transcript pursuant to

§ 753(f) is not ripe until a § 2255 motion has been filed.” United States v.

Horvath, 157 F.3d 131, 132 (2d Cir. 1998); see also United States v. Losing, 601

F.2d 351, 352 (8th Cir. 1979) (holding that, under the language of § 753(f) and the

Supreme Court’s decision in United States v. MacCollum, 426 U.S. 317 (1976),

“any request for a free transcript prior to the filing of a section 2255 complaint is

premature.”).

       The district court did not err in determining it could not reach the merits of

Hernandez’s § 753(f) request4 because Hernandez had yet to file a § 2255 motion.

See Walker, 424 F.2d at 278-79; Horvath, 157 F.3d at 132. By determining that it

would likewise be premature to consider the merits of Hernandez’s motion to

equitably toll the one-year limitation period, the court correctly found that such a

       3
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11 th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit before October 1,
1981.
       4
         It was appropriate for the court to construe Hernandez’s motion to compel as a request
for a free transcript pursuant to § 753(f).

                                                3
request would not be ripe for consideration until Hernandez filed a habeas action.

See United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (holding that a court

lacks subject matter jurisdiction to consider a § 2255 motion to vacate for

timeliness before it has been actually filed because there is no case or controversy

to be heard and any decision would be merely advisory). Accordingly, we affirm

the district court’s order.

      AFFIRMED.




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