Colin F. MacCollom v. United States

FRED M. TAYLOR, District Judge

(dissenting):

Appellant was convicted and sentenced to imprisonment for violation of (Title 18 U.S.C. § 472 (passing forged currency) on June 4, 1971, from which conviction and sentence no appeal was taken. Appellant has never filed an application for post-conviction relief under and pursuant to 28 U.S.C. § 2255 , nor made any showing that he is entitled to any such relief.

On June 23, 1972, appellant, proceeding in forma pauperis, filed the present action against the United States seeking a verbatim transcript of his criminal trial, at government expense, to aid him in the preparation of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 . The complaint was dismissed by the district court for failure to state a claim on which relief could be granted and this appeal followed.

The issue presented on this appeal is whether appellant, as an indigent prisoner, has a constitutional or statutory' right to a free transcript in order to search for error upon which to base a Sec. 2255 petition. The majority of the panel has concluded that he has such a constitutional right, with which conclusion I respectfully disagree.

In the majority opinion it seems to be admitted that thus far all federal courts have consistently held that an indigent prisoner has no constitutional or statutory right to a free transcript for use in preparing a collateral attack on his conviction or sentence. These authorities are cited in the majority opinion. In Wilson v. Wade, 390 F.2d 632, 634 (1968), this court indicated it would adhere to the general rule of denying a transcript which would enable the petitioner to “comb the record in hope of discovering some flaw.” However, the judgment in Wade was vacated for a different reason and the Supreme Court declined to pass on the precise question of whether the petitioner, a state prisoner, was entitled to a transcript for use in petitioning for a writ of habeas corpus. Wade v. Wilson, 396 U.S. 282, 286 , 90 S.Ct. 501 , 24 L.Ed.2d 470 (1969). This court in United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (1972), was presented with a somewhat similar, although not identical, issue. In that case, a state prisoner sought to “inspect certain items of evidence . . . for use in preparing a future petition for a writ of habeas corpus . . .” The relief sought was denied with the observation that “[w]hat Nunes apparently wants is a license to enable him to search through a wide variety of items in order either to discover whether he has grounds for a collateral attack or to facilitate preparing a petition for collateral relief.”

*1125 Although the majority opinion appears to recognize that federal court precedent is contrary to what is being held in this ease, it is reasoned that the current trend is contrary to the prior decisions and that this court should follow the trend and make some new law. I am unable to agree with this theory. I submit that the authorities relied on by the majority do not compel a decision contrary to the weight of precedent.

Apparently appellant did not consider it necessary to appeal from the judgment of conviction, even though he no doubt was advised by the trial court of his right to do so and knew he could exercise such right. He has not made any claim or showing which would indicate that he may have been convicted of a • crime of which he is innocent or that any of his rights were violated. He only asserts a desire to review the record to find some legal point which he can argue as a basis for release from confinement. He should not need a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen to show some fatal constitutional error in the prior proceedings.

I submit that the mere fact the appellant is indigent does not entitle him to a free transcript upon request for the mere purpose of searching the record in an attempt to find possible grounds to assert a claim for post-conviction relief.

Since the action brought by appellant against the United States is for a declaratory judgment and injunctive relief, it occurs to me that there is an immunity question to be considered even though it has not been specifically raised. It does not appear that there is any statutory authority authorizing such an action and it is my understanding that absent a waiver of sovereign immunity by specific congressional consent, the federal district courts have no jurisdiction over claims against the United States.

I would affirm the Order of Dismissal.

ORDER

The panel as constituted in the above case having voted to deny the petition for rehearing, the full court was advised of the suggestion for en banc rehearing and of the panel’s vote. Circuit Judge Wallace requested a vote of all regular active judges of the court. The request for en banc consideration failed to obtain a majority of the votes.

Accordingly, the petition for rehearing is denied, and the suggestion for rehearing en banc is rejected. The mandate will issue forthwith.

WALLACE, Circuit Judge, with whom Circuit Judges EUGENE A. WRIGHT, TRASK, CHOY and SNEED concur, dissenting from Order Denying Petition for Rehearing En Banc:

Our failure to take this case en banc is unfortunate. Not only do I believe the decision wrong on the merits but it is directly contrary to prior Ninth Circuit precedent which should not be overruled other than by our court sitting en banc.

First, although justice should not be determined by the size of a poeketbook, an indigent is not entitled to any more than an average defendant who is able to pay his own way. As the Supreme Court recently stated in a case denying indigents a constitutional right to counsel on discretionary appeals:

The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.

Ross v. Moffitt, 417 U.S. 600, 616 , 94 S.Ct. 2437, 2447 , 41 L.Ed.2d 341 (1974). The MacCollom majority compares the indigent to “his wealthy cellmate.” Ante at 1122. That is not the test. The Supreme Court rejected this view in *1126 Ross v. Moffitt, id. I do not believe the average defendant would purchase a transcript in order to comb through it for possible error. The majority opinion thus places the indigent in a more favorable position than the average defendant who pays his own way.

The MacCollom opinion acknowledges that other circuits deciding this issue come out diametrically opposed to the majority. Ante at 1118 and n.3. Indeed, the majority can find no circuit case in accord with its holding. Before we create inter-circuit conflicts, here between us and the First, Fourth, Fifth and Sixth and Tenth Circuits, we should be persuaded the rest are wrong. I, for one, am not.

Second, the MacCollom decision is directly contrary to prior Ninth Circuit cases. Wilson v. Wade, 390 F.2d 632 (9th Cir. 1968), vacated, 396 U.S. 282 , 90 S.Ct. 501 , 24 L.Ed.2d 470 (1970), explicitly held that a state prisoner is not entitled to a free transcript “to comb the record in the hope of discovering some flaw.” Id. at 634. Although Wade concerned habeas corpus rather than section 2255, it decided the same constitutional issue as MacCollom. See id. at 633-34; MacCollom v. United States, Ante at 1119. The majority declines to follow Wade because the Supreme Court vacated judgment and remanded to the district court. The vacation, however, did not concern the merits of our holding. See Wade v. Wilson, 396 U.S. 282, 286-87 , 90 S.Ct. 501 , 24 L.Ed.2d 470 (1970). It is interesting to note that Wade has been used as authority by our court in spite of the vacation by the Supreme Court. See MaGee v. Nelson, 455 F.2d 275, 276 (9th Cir.), cert. denied, 405 U.S. 1070 , 92 S.Ct. 1517 , 31 L.Ed.2d 802 (1972).

In Taylor v. United States, 238 F.2d 409 (9th Cir. 1956), cert. denied, 353 U.S. 938 , 77 S.Ct. 817 , 1 L.Ed.2d 761 (1957), we denied a trial transcript in a section 2255 case. The majority contends that Taylor need not be followed because it was decided “only months” (actually seven months) after Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L. Ed. 891 (1956). Ante at 1119. This is not persuasive. I assume the Taylor panel was aware of Griffin but even if it were not, the denial of certiorari in Taylor may be some indication that the Supreme Court did not believe that Griffin required a different result. Although Taylor did not discuss the constitutional issue raised in MacCollom, I think an en banc hearing is necessary to overrule it.

The majority’s opinion also does not present adequate grounds for disapproving McGarry v. Fogliani, 370 F.2d 42, 44 (9th Cir. 1966). McGarry held that a state prisoner does not have a right to a trial transcript when he petitions for habeas corpus in federal court. Id. at 44 . The MacCollom majority construes this holding to be dictum, Ante at 1119, relying on the following language in Wade, supra, 390 F.2d at 634 n.l:

Such authority as is available is in accord with what was stated in McGarry, see footnote 7' [of McGarry], where the court cites United States v. Glass, 4th Cir., 317 F.2d 200, 202 . Although the language there is in accord with the McGarry decision, under the circumstances of that case it may be dictum. (Emphasis added.)

This argument fails for several reasons. First ' MacCollom’s use of the passage quoted above is just erroneous. The footnote refers to a dictum in United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963), not in McGarry . A reading of Glass bears this out. Id. at 202-03 . Furthermore, Wade relied upon McGarry as requiring the result held. The footnote quoted above is appended to the following sentence in the text of the Wade opinion:

So far as the district court’s findings are concerned, our holding in McGarry v. Fogliani, supra, would require us to say that Wade was not en *1127 titled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.

390 F.2d at 634 . 1 Moreover, even if the majority were correctly interpreting the footnote in Wade, it would not be persuasive. Regardless of how Wade interprets McGarry , a reading of McGarry reveals it to hold that state habeas petitioners are not entitled to a transcript as of right. McGarry, swpra, 370 F.2d at 44 .

The final argument advanced by the MacCollom, majority for abandoning the prior Ninth Circuit decisions contra is that they have been undercut by subsequent Supreme Court decisions. I disagree. As late as its decision in Wade in 1970, the Supreme Court was willing to avoid the issue of the right to a transcript on collateral review, describing it as “a question of first impression.” 396 U.S. at 286 , 90 S.Ct. 501 . The only subsequent decisions cited in MacCollom, are at best inconclusive on this issue. Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (1971), held that a state criminal defendant need not receive a transcript of his mistrial before he is tried again if a substantially equivalent alternative is available. In dicta, the Court both questioned the constitutionality of requiring a particularized showing of need for transcripts and admitted that the “outer limits” of the right to a transcript remain unclear. 404 U.S. at 227-28 , 92 S.Ct. 431 . The other decision cited in MacCollom, is Ross v. Moffitt, supra, 417 U.S. 600 , 94 S.Ct. 2437 , which denied a constitutional right to counsel on discretionary appeals to a state’s highest court. As argued above, this case undermines rather than strengthens the reasoning of the MacCollom majority. These cases, therefore, do not require abandonment of our prior holdings.

. I cannot understand how the MacGollom majority can on one hand dismiss the holding of Wade on the ground that the Supreme Court vacated the judgment and, on the other hand, salvage a footnote from that opinion in order to show that the language in McGarry was dictum.