United States District Court, M.D. Pennsylvania
September 28, 2005.
UNITED STATES OF AMERICA
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
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