Free Order on Motion to Unseal Document - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Pio Valenzuela, Defendant/Movant.

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No. CR 03-1091-PHX-PGR No. CV 07-1361-PHX-PGR (MEA) ORDER

Movant Pio Valenzuela, who is confined in FCI-Petersburg in Petersburg, Virginia, filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion"). On September 4, 2007, the Court granted Movant 30 days to file an amended motion. (Doc. #82). On August 10, 2007, Movant filed a Motion Requesting a Copy of the Sentencing Transcript (Doc. #81). Movant filed a second Motion Requesting a Copy of the Sentencing Transcript on September 12, 2007 (Doc. #83). The Court construes Movant's Motions for Transcript as motions for transcripts at the cost of the United States pursuant to 28 U.S.C. § 753(f). Section 753(f) provides in pertinent part that: Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. 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 moneys appropriated for that purpose if the trial judge or 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.
Case 2:03-cr-01091-PGR Document 84 Filed 09/20/2007 Page 1 of 2

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In his § 2255 Motion, Movant contends that his trial counsel was ineffective and that he was sentenced in violation of Apprendi. However, Movant offers no facts in support of his claims. Accordingly, this Court is unable to certify that Defendant's § 2255 claims are not frivolous or that the requested transcripts are needed to decide the issue presented. See Henderson v. U.S., 734 F.2d 483 (9th Cir. 1984) (appellate court could not direct production of transcript at government expense absent a finding that the appeal presented a substantial issue). Accordingly, Movant's Motions for Transcript will be denied. The Court will also deny Plaintiff's March 12, 2007 Motion to Unseal Sentencing Transcript (Doc. #73) and May 14, 2007 Motion to Unseal Sentencing Transcript (Doc. #74) as moot.1 IT IS ORDERED: (1) Movant's August 10, 2007 and September 12, 2007 Motions Requesting Copy

of the Sentencing Transcript (Doc. ##81 & 83) are denied. (2) Movant's March 12, 2007 and May 14, 2007 Motions to Unseal Sentencing

Transcript (Doc. ##73 & 74) are denied as moot. DATED this 18th day of September, 2007.

The Court notes that Plaintiff's July 13, 2007 Motion to Unseal Transcript (Doc. #78) was granted on July 25, 2007 (Doc. #79).
Case 2:03-cr-01091-PGR Document 84 -2Filed 09/20/2007 Page 2 of 2

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