United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
January 9, 2017, Defendant, proceeding pro se, filed
a motion for copies of all trial transcripts (ECF No. 735)
and a motion to “appoint counsel. . . to refile
original 28 U.S.C. § 2255(a) and ‘COA' to
refile original 2255 motion” (ECF No. 736). The same
day, Defendant filed a notice of appeal of this court's
final order regarding Defendant's motion to vacate under
§ 2255 filed November 20, 2009. ECF No. 737. This court
entered an Order noting it would address Defendant's
motions once the Court of Appeals entered a decision on his
appeal. See ECF No. 742. On February 28, 2017, the
Fourth Circuit dismissed Defendant's appeal as untimely.
ECF No. 747.
filed a pro se motion pursuant to § 2255 on
November 20, 2009. ECF No. 498. He argued his counsel was
ineffective during trial and sentencing for allegedly
allowing Defendant's speedy trial act rights to be
violated, and for providing erroneous advice and information
regarding the Government's proposed plea agreement. He
also challenged counsel's effectiveness regarding alleged
“erroneous jury instructions” and insufficient
full briefing, this court granted the Government's motion
for summary judgment, dismissed Defendant's § 2255
motion with prejudice, and denied a certificate of
appealability. ECF No. 529. Defendant thereafter filed a
motion for issuance of a certificate of appealability and a
motion to alter or amend judgment pursuant to Fed. R. Civ. P
59(e). ECF Nos. 532, 534.
court denied the motion for a certificate of appealability as
moot and denied Defendant's motion to alter or amend,
which it construed as a motion under Fed.R.Civ.P. 60(b)(6)
due to time limits associated with Rule 59(e). ECF Nos. 535,
544. Defendant also filed an appeal from the dismissal of his
§ 2255 motion and denial of his motion for certificate
of appealability. See ECF No. 537. The Fourth
Circuit denied a certificate of appealability and dismissed
the appeal. ECF No. 548.
15, 2013, Defendant filed another § 2255 motion,
requesting the court apply Alleyne v. United States,
570 U.S. __, 133 S.Ct. 2151 (2013) to his case. ECF No. 611.
The court dismissed the motion for lack of jurisdiction,
because it was a second or successive motion filed without
first obtaining permission from the Court of Appeals. ECF No.
613. The Fourth Circuit also dismissed Defendant's appeal
of this Order. ECF Nos. 616, 623.
has filed several motions attempting to overturn his
conviction pursuant to different rules and theories. See,
e.g., ECF Nos. 629, 632, 707, 723. In his latest motion,
Defendant seeks appointment of counsel to refile his original
§ 2255 motion. ECF No. 736. As explained in numerous
prior orders, Defendant, with or without counsel, may not
file another § 2255 motion in this court without first
receiving permission to do so from the Fourth Circuit Court
of Appeals. See 28 U.S.C. § 2244(b)(3)(A).
addition, Defendant argues he should have been appointed
counsel on his original § 2255 motion because he was
death penalty eligible. In support of this argument,
Defendant cites 28 U.S.C. § 2261; however, § 2261
applies to prisoners in state custody and thus is
inapplicable to Defendant. 18 U.S.C. § 3599(a)(2)
requires appointment of counsel “in any post conviction
proceeding under section 2254 or 2255 of title 28, United
States Code, seeking to vacate or set aside a death sentence
. . .” Defendant is correct that counsel must be
appointed on criminal matters when a defendant is charged
with a crime which may be punishable by death; however, in
post-conviction proceedings a defendant is only entitled to
counsel if he is actually sentenced to death. Defendant was
not sentenced to death; therefore, he was not entitled to
counsel on his original § 2255 motion, or now as he
seeks to re-file a § 2255 motion.
also requests “all jury notes, all transcripts of
record” in his case. ECF No. 735. The Jones
court held that “[W]hen a need for a transcript in
order to collaterally attack a conviction is shown, equal
protection and due process require the state to furnish an
indigent prisoner such transcript without charge.”
Jones v. Superintendent, Virginia State Farm, 460
F.2d 150, 152 (4th Cir. 1972). However, longstanding circuit
precedent provides that a prisoner who requests free copies
of records in his or her criminal case, whether it is a state
or federal case, must show a particularized need for such
records. See Jones, 460 F.2d at 152-53; United
States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963).
Defendant must show some “need” for the material
beyond a mere desire to comb the record in hopes of
discovering some flaw. Jones, 460 F.2d at 152.
has failed to show a particularized need for the documents he
seeks. He has no pending action in this court or at the
Fourth Circuit. Further, the arguments he wishes to raise
(those in his original § 2255 motion which he wants to
“re-file”), have been ruled upon by this court
and dismissed. If Defendant wishes to pay for copies, he may
write the Clerk of Court and request the items he would like.
She will notify him of the price and send him copies once
payment is made.
motions for appointment of counsel to re-file his original
§ 2255 motion and for copies of his transcripts are
of Appealability The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing ...