The opinion of the court was delivered by: Judge Peter C. Economus
This instant matter is before the Court on Defendant Roger Drew Moore's ("Moore") Emergency Motion, in which he urges the Court (1) to produce a free sentencing transcript, and (2) to appoint counsel to assist Moore in filing a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255. (Dkt. # 45.) Also before the Court, is Moore's Motion to Recharacterize his Emergency Motion as a § 2255 petition for habeas corpus. (Dkt. # 46.) For the following reasons, Moore's Motions are GRANTED in part and DENIED in part.
On June 26, 2007, Moore entered a plea of guilty to the Indictment, which alleges that Moore, "did knowingly travel in interstate commerce... for the purpose of engaging in illicit sexual conduct, as defined in [18 U.S.C. § 2423(f)], with... a fourteen-(14)-year-old girl." (Dkt. # 7.) On January 25, 2008, the Court sentenced Moore to prison for a period of fifty-five months. (Dkt. # 38.)
On October 22, 2008, Moore filed an Emergency Motion, in which Moore urges the Court (1) to produce a free sentencing transcript and (2) to appoint counsel. (Dkt. # 45.) On November, 21, 2008, Moore filed a Motion to Recharacterize his Emergency Motion as a § 2255 habeas petition. (Dkt. # 46.)
Moore moves the Court (1) to produce a free sentencing transcript; (2) to appoint counsel to assist Moore in filing a § 2255 petition for writ of habeas corpus; and (3) to recharacterize his Emergency Motion (Dkt. # 45) as a § 2255 petition.
For the reasons that follow, the Court (1) DENIES Moore's Motion to Produce a Free Sentencing Transcript (Dkt. # 45), (2) DENIES Moore's Motion for Court-Appointed Counsel (Dkt. # 45), and (3) GRANTS Moore's Motion to Recharacterize "Emergency Motion" as a § 2255 Petition for Habeas Corpus (Dkt. # 46).
A. Motion to Produce a Free Sentencing Transcript
First, Moore moves the Court to produce a free sentencing transcript to enable him to develop his § 2255 petition. (Dkt. # 45.) 28 U.S.C. § 753 governs the waiver of fees for transcripts in this context. According to § 753, a petitioner proceeding in forma pauperis under § 2255, may obtain a sentencing transcript if, upon motion, the Court determines that (1) petitioner's claims are not frivolous, and (2) the sentencing transcript is needed to decide the issues to be raised in the § 2255 petition.*fn1 See 28 U.S.C. § 753(f) (2006); U.S. v. Malccollom, 426 U.S. 317 (1976) (holding that the stated preconditions-"non-frivolous" and "necessary"-do not offend due process).
As a preliminary matter, to enable Moore to request a transcript under § 753, the Court must permit him to proceed in forma pauperis. Moore has submitted an Affidavit in Support of Petition to Proceed In Forma Pauperis. (Dkt. # 45, Ex. 1.) 28 U.S.C. § 1915 governs petitions to proceed in forma pauperis. Section 1915 states, in relevant part:
Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs of give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.
28 U.S.C. § 1915(a) (2006).
In the instant matter, the Court has received and reviewed Moore's Affidavit in Support of Petition to Proceed In Forma Pauperis. (Dkt. # 45, Ex. 1.) There is no fee required to file a § 2255 habeas petition. Thus, Moore's ability to proceed in forma pauperis is relevant only as a ...