Colin F. MacCollom v. United States

511 F.2d 1116 Colin F. MacCOLLOM, Appellant, v. UNITED STATES of America, Appellee. No. 73--1659. United States Court of Appeals, Ninth Circuit. Aug. 2, 1974. Rehearing and Rehearing En Banc Denied Feb. 26, 1975. John A. Strait (argued), Public Defender, Seattle, Wash., for appellant. Charles F. Mansfield (argued), Asst. U.S. Atty., Seattle, Wash., for appellee. Before HUFSTEDLER and GOODWIN, Circuit Judges, and TAYLOR, * District Judge. ALFRED T. GOODWIN, Circuit Judge: 1 Colin F. MacCollom appeals from the dismissal of his action for declaratory and injunctive relief. He seeks preparation, at government expense, of a verbatim transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255 . We hold that he has the right to such a transcript, reverse, and remand the case. 2 MacCollom was convicted in the United States district court and was confined in 1970. Because he took no appeal, MacCollom did not request a transcript until March 1972, when he filed a 'motion for transcript in forma pauperis.' The clerk of the court notified MacCollom that until he filed a motion under 28 U.S.C. § 2255 , the court had no power to…

Colin F. MacCollom appeals from the dismissal of his action for declaratory and injunctive relief. He seeks prepara *1117 tion, at government expense, of a verbatim transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255 . We hold that he has the right to such a transcript, reverse, and remand the case.

MacCollom was convicted in the United States district court and was confined in 1970. Because he took no appeal, MacCollom did not request a transcript until March 1972, when he filed a “motion for transcript in forma pauper-is.” The clerk of the court notified MacCollom that until he filed a motion under 28 U.S.C. § 2255 , the court had no power to act on his request. MacCollom then filed his complaint for declaratory and injunctive relief. His motion to proceed in forma pauperis was granted, and an attorney was appointed to assist him; but, on the government’s motion, the district court dismissed the action for failure to state a claim upon which relief could be granted. Counsel has candidly argued that he cannot represent to the court that specific constitutional grounds for relief exist until after he has seen a…

(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…