United States District Court, D. Colorado
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Mr. Medina's Motion to
Waive Copy Fee [Docket No. 240], Motion for Leave to Provide
Discovery and Appointment of Counsel [Docket No. 244], Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 in a Habeas Corpus Action Requesting Transcripts
[Docket No. 245], and Motion for Appointment of Counsel
[Docket No. 246].
December 8, 2017, Mr. Medina was sentenced to 153 months in
prison after pleading guilty to charges of mail theft, bank
fraud, identity theft, and possession of a firearm by a
felon. See Docket No. 209 at 2; see also
Docket No. 11; Docket No. 176 at 2. The Tenth Circuit
affirmed Mr. Medina's conviction on direct appeal. Docket
No. 237-1. On July 8, 2019, Mr. Medina filed a motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. Docket No. 242. Mr. Medina's § 2255
motion raises several grounds for relief, including violation
of his speedy trial rights under the Sixth Amendment,
id. at 3, denial of his right to effective
assistance of counsel under the Fifth and Sixth Amendments,
id. at 19, denial of his right to
self-representation, id. at 25, violation of his due
process rights, id. at 26, and violation of the
government's disclosure obligations under Brady v.
Maryland, 373 U.S. 83 (1963). Id. at 27. At
issue in this order are several motions filed in connection
with Mr. Medina's § 2255 motion. Those motions seek
free copies of certain documents and transcripts pursuant to
28 U.S.C. § 753(f), Docket No. 240 at 1; Docket No. 245
at 1; leave to conduct post-conviction discovery, Docket No.
244 at 2-3; leave to proceed without prepayment of fees under
28 U.S.C. § 1915, Docket No. 245; and appointment of
counsel. Docket No. 244 at 1, 3; Docket No. 246. The Court
construes Mr. Medina's filings liberally because he is
not represented by an attorney. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
Medina seeks leave to conduct discovery in connection with
his § 2255 motion. See Docket No. 244 at 1-3.
“A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of
ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). Instead, a petitioner must show good cause
for seeking discovery and “provide reasons for the
request.” See Rules Governing § 2255
Proceedings, Rule 6(a)-(b).
cause is established where specific allegations before the
Court show reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is
entitled to relief.” Wallace v. Ward, 191 F.3d
1235, 1245 (10th Cir. 1999) (internal quotation marks and
ellipsis omitted) (quoting Bracy v. Gramley, 520
U.S. 899, 908-09 (1997)). A petitioner's
“speculation over exculpatory material is
unlikely” to satisfy this standard. United States
v. Kieffer, No. 18-cv-02771-CMA, 2019 WL 1058206, at * 1
(D. Colo. Mar. 6, 2019) (quoting Strickler v.
Greene, 527 U.S. 263, 286 (1999)). Moreover, “Rule
6 does not license a petitioner to engage in a fishing
expedition by seeking documents merely to determine whether
the requested items contain any grounds that might support
his petition.” Id. (internal quotation marks
Mr. Medina has not shown good cause for the requested
discovery. In his motion, Mr. Medina asserts that
“discovery is needed for adequate presentation of any
and all claims which were wrongfully avoided in the
proceedings as a result of [ineffective assistance of
counsel].” Docket No. 244 at 3, ¶ 5. He further
states that counsel's failure to “review
discovery” and the government's Brady
violations make “one consider what else might have been
left out of discovery in order to hamper the defense”
and thus discovery is warranted to “develop and present
meritorious claims that were wrongfully circumvented.”
Id. at 3, ¶ 8. Critically, however, Mr. Medina
does not specify the type of discovery he is seeking,
see Rules Governing § 2255 Proceedings, Rule
6(b) (stating that any request for discovery “must also
include any proposed interrogatories and requests for
admission, and must specify any requested documents”),
or explain how such discovery would substantiate the claims
asserted in his § 2255 motion. As a result, the Court
will deny his request. See Kieffer, 2019 WL 1058206,
at *1 (denying habeas petitioner's request for discovery
where he did “not suggest the existence of any evidence
that ha[d] not been produced or which could advance his
section 2255 claims”); United States v. Lewis,
No. 11-cv-01537-REB, 2015 WL 12857312, at *10 (D. Colo. Aug.
3, 2015) (denying habeas petitioner's non-specific
request for facts “that were not adequately developed
or handled in prior proceeding and or available to [the
petitioner]” (internal quotation marks omitted)).
Leave to Proceed In Forma Pauperis and Request for
Medina moves for leave to proceed without prepayment of fees
under 28 U.S.C. § 1915. See Docket No. 245 at
1. He also seeks, pursuant to 28 U.S.C. § 753(f), free
copies of the docket sheet, an unspecified “exhibit,
” and transcripts from the April 27, 2017 hearing on
Mr. Medina's motion for alternate counsel. Docket No. 240
at 1; Docket No. 245 at 1.
Medina's motions will be granted in part and denied in
part. While Mr. Medina has submitted an affidavit showing
that he is entitled to proceed in this Court without
prepayment of fees, see Docket No. 245; 28 U.S.C.
§ 1915(a)(1) (“[A]ny 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 or security therefor, by
a person who submits an affidavit that includes a statement
of all assets such prisoner possesses that the person is
unable to pay such fees or give security therefor.”),
he has failed to substantiate his request for the
“exhibit” and transcripts under 28 U.S.C. §
753(f). Section 753(f) provides, in relevant part, that
[f]ees 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 and that the transcript is needed to decide the
issue presented by the suit or appeal.
28 U.S.C. § 753(f). Mr. Medina has made no showing that
the referenced “exhibit, ” Docket No. 240 at 1,
or the transcripts of the April 27, 2017 hearing are
“needed to decide the issue[s]” presented in his
§ 2255 motion. Accordingly, this aspect of his motions
will be denied. See United States v. Birch, No.
09-cr-00053-CMA, 2019 WL 2341560, at *1 (D. Colo. June 3,
2019) (denying request for transcripts where defendant had
made no showing that there was “a particularized need
for the transcript” to decide his forthcoming §
2255 motion); see also Sistrunk v. United States,
992 F.2d 258, 259 (10th Cir. 1993) (requiring an indigent
defendant to make a “particularized” showing that
a “transcript is needed to decide the issue presented
by the suit”). The Court will, however, send a copy of
the docket sheet to Mr. Medina ...