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U.S. v. LOPEZ-PORTILLO

United States District Court, M.D. Pennsylvania


September 28, 2005.

UNITED STATES OF AMERICA
v.
ARMANDO LOPEZ-PORTILLO.

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM AND ORDER

Before the court is Defendant's motion requesting transcripts in forma pauperis for the preparation of a motion pursuant to 28 U.S.C. § 2255. Defendant claims that he intends to raise in such a motion the following issues: (1) Blakely v. Washington*fn1 issues; (2) violation of the plea agreement; and (3) violation of the Sixth Amendment.

Federal sentencing claims are now addressed by Booker v. United States, ___ U.S. ___, 125 S. Ct. 738 (2005), which address similar issues to Blakely but concern federal sentencing as opposed to sentencing issues in the state of Washington. Booker issues cannot be raised retroactively to cases on collateral review. In re Olepade, 403 F.3d 159, 162 (3d Cir. 2005). Therefore, the transcripts are not necessary since Defendant is barred from raising the issue. As to an alleged violation of the plea agreement, a copy of the agreement shall be furnished to Defendant along with a copy of this memorandum and order. Defendant does not need a transcript of the plea or sentencing proceedings to determine if there has been a violation of the plea agreement.

  As to the alleged violation of the Sixth Amendment, the allegation is vague. Title 28 U.S.C. § 753(f) provides in pertinent part that "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. . . ." (Emphasis added.) Based on the motion presently before the court, such certification cannot be made by this court.

  IT IS THEREFORE ORDERED THAT:

1) The motion for transcripts is DENIED without prejudice.
  2) The Clerk of Court shall send a copy of the plea agreement in this case to Petitioner along with a copy of this memorandum and order.

20050928

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