United States v. Bushway de Souza, 1st Cir. (1993)

USCA1 Opinion
August 5, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1205
UNITED STATES,
Appellee,
v.
BARBARA BUSHWAY DE SOUZA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Barbara Bushway De Souza on brief pro se.
________________________
Peter E. Papps, United States Attorney,
on Motion
for Summ
_______________
Disposition, for appellee.
____________________
____________________
Per Curiam.
__________
1992 to drug charges
her
Barbara Bushway Desouza pled guilty in

and was sentenced.
sentence directly.
under 28
amendment
U.S.C.
However,
She
did not appeal
Desouza brought
a motion
2255, alleging that a Sentencing Guideline
permitting
an additional
one-level
reduction in
base offense level for acceptance of responsibility should be

applied to
reduce her sentence.
her motion
because the amendment became
was sentenced
affirmed
and could
not be
in United States v.
_____________
The district
court denied
effective after she
applied retroactively.
Desouza, -- F.2d
_______
We
-- (1st Cir.
1993).
Before our
the district
decision was rendered, Desouza petitioned
court to
have certain transcripts
government expense, averring that
prepared at
she needed the transcripts
to "prepare [a] motion in order to secure my rights under the

law."
The district court denied her request because she had
not given any
reason why the transcripts
at government expense.
should be prepared
Desouza has appealed.
We now affirm.
The district court's denial of Desouza's motion was

proper under our
case law.
F.2d
(1st
1325, 1327
In Ellis v.
_____
Cir. 1971),
we
State of Maine, 448

______________
held that
habeas
petitioner alleging simply that his rights had been infringed

had
no
right
to a
free
transcript
without
specifically that his claim had some merit.
showing more
We stated:
As to the request for a transcript, it is

important to note that we are not here
concerned with a direct appeal from a

conviction, or a state habeas which takes
the place of such an appeal, where a
transcript may be a matter of right
without showing merit in the appeal.
[Citation omitted.] Appellant's petition
is wholly for collateral relief.
For
this unusual and exceptional relief there
should be a burden upon the petitioner to

come into court with his case, not simply
to try to make one out. This does not
mean, of course, with his full case, but
he must show merit, not just personal
opinion.
Id.
___
that
In her motion to the district court, Desouza stated only

she
"secure
needed the
[her]
transcripts
rights."
to
prepare a
motion
to
Thus, she has not even alleged that
her rights have been violated, as the unsuccessful petitioner

in Ellis
_____
did,
nor, obviously,
has
she given
any
details
suggesting that she could make out a case that her rights had
been infringed.
It
Her brief to this court is no more specific.
states only that she
and that "[i]n
is preparing a
section 2255 motion
order to be able to address
the right issues
and effectively and accurately present [my] case . .
. , [I]
need[] to
Because
Desouza,
refer to
who
[the]
is seeking
collateral
described in general terms

let alone given
transcripts .
. ."
relief,
has not
what the nature of her
even
claim is,
any specific facts to show that she has some
meritorious claim,
it is clear that the district court acted
properly in denying her request for a free transcript.

We
transcripts
note further
would also
that
have been
- 3 -
Desouza's
motion for
properly denied
free
under 28
U.S.C.
753(f).
transcripts
That statute permits the provision of free
to indigents pursuing
under certain circumstances.1
their section 2255 rights
It states:
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
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.
Thus, under section
free
753(f) Desouza
transcript only
if the
would be
district court
entitled to
had determined
(or, presumably, if this court upon appeal were to determine)

that her section 2255
motion was not frivolous and
requested transcripts
were necessary
The
Supreme Court has held that
indigents seeking
provision of
States
______
transcripts
426
her motion.
the requirements imposed on

which are
contained in
section 753(f) are constitutional.
v. MacCollom,
_________
decision).
to decide
that the
U.S. 317,
325 (1976)
this
See United
__________
(plurality
Since Desouza has not described the basis for her
suit or any specific facts which might support a section 2255

motion,
we cannot say that her motion would not be frivolous
____________________
1. The record does not show whether the district court
granted Desouza's application to proceed in forma pauperis in
seeking the transcripts.
In light of other information
contained in the record, however, we may assume either that
the court granted her IFP application or that it would have
done so.
- 4 -
or
that
motion.
the transcripts
Thus,
would be
we conclude
that
necessary to
the district
decide her
court acted
properly in denying her motion for free transcripts.
See id.
_______
at 326 (had the section 2255 petitioner provided the district

court with
ineffective
some factual allegations respecting

assistance
of
counsel,
and
his claim of
not
merely
with
conclusory allegations, and had he stated explicitly what his

counsel's error was, the court might have
claim
concluded that his
was not frivolous and that a free transcript should be
furnished);
Sistrunk v.
________
United States, 992

______________
(10th Cir.
1993) (a
was denied
effective assistance of counsel
F.2d 258,
conclusory allegation that
the requirements of section 753(f)).2
259
a defendant
does not satisfy
____________________
2. Because Desouza failed to make any showing that her
section 2255 motion would not be frivolous or that the
requested transcripts would be necessary to decide her
motion, we need not decide whether she should have brought
her section 2255 motion
before seeking to obtain the
transcripts.
See Sistrunk, 992 F.2d at 259 (citing cases
____________
which have held that the actual filing of the habeas petition
is a necessary prerequisite to seeking free transcripts under
section 753(f), but not deciding whether to adopt that
interpretation in light of petitioner's failure to satisfy
the statutory prerequisites); see also United States v.
________________________
Chambers, 788 F. Supp. 334 (E.D. Mich. 1992) (discussing the
________
conflict on this point among the circuit courts). Similarly,
because Desouza seeks the preparation of transcripts and not
simply a copy of transcripts already in existence, there is
no need to consider whether, not meeting the requirements of
section 753(f), she could obtain free transcripts under
section 753(b). See Rush v. United States, 559 F.2d 455, 458
________
_____________
(7th Cir. 1977) (reversing the district court's denial of
petitioner's
motion for free transcripts under section
753(f); because the transcripts were already in existence,
the court of appeals held that the petitioners, whose
conclusory allegations respecting their section 2255 motion
- 5 -
The judgment of the district court is affirmed.3

________
____________________
did not meet the requirements of section 753(f), had a right
to the transcripts under section 753(b), which provides that
"the original records" in the clerk's office must be open to
inspection "by any person without charge").
The Rush
____
decision has been criticized. See Sistrunk, 992 F.2d at 260;
___ ________
United States v. Losing, 601 F.2d 351, 352-53 (8th Cir.
_____________
______
1979).
3. Because Desouza has not said what grounds she has for
bringing a second section 2255 motion, we cannot say whether
her motion would be likely to be dismissed under Rule 9 of
the Rules Governing
2255 Proceedings, given her previous
section 2255 motion, as the government argues.
- 6 -

United States v. Bushway de Souza, 1st Cir. (1993)

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United States v. Bushway de Souza, 1st Cir. (1993)

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USCA1 Opinion

Barbara Bushway Desouza pled guilty in

did not appeal

2255, alleging that a Sentencing Guideline

base offense level for acceptance of responsibility should be

reduce her sentence.

because the amendment became

effective after she

decision was rendered, Desouza petitioned

have certain transcripts

government expense, averring that

she needed the transcripts

to "prepare [a] motion in order to secure my rights under the

The district court denied her request because she had

not given any

reason why the transcripts

Desouza has appealed.

The district court's denial of Desouza's motion was

State of Maine, 448

petitioner alleging simply that his rights had been infringed

specifically that his claim had some merit.

As to the request for a transcript, it is

concerned with a direct appeal from a

should be a burden upon the petitioner to

In her motion to the district court, Desouza stated only

Thus, she has not even alleged that

her rights have been violated, as the unsuccessful petitioner

Her brief to this court is no more specific.

states only that she

and that "[i]n

section 2255 motion

order to be able to address

the right issues

and effectively and accurately present [my] case . .

described in general terms

what the nature of her

any specific facts to show that she has some

it is clear that the district court acted

properly in denying her request for a free transcript.

That statute permits the provision of free

under certain circumstances.1

their section 2255 rights

(or, presumably, if this court upon appeal were to determine)

motion was not frivolous and

Supreme Court has held that

the requirements imposed on

section 753(f) are constitutional.

Since Desouza has not described the basis for her

suit or any specific facts which might support a section 2255

we cannot say that her motion would not be frivolous

properly in denying her motion for free transcripts.

at 326 (had the section 2255 petitioner provided the district

some factual allegations respecting

conclusory allegations, and had he stated explicitly what his

concluded that his

was not frivolous and that a free transcript should be

United States, 992

effective assistance of counsel

conclusory allegation that

the requirements of section 753(f)).2

does not satisfy

The judgment of the district court is affirmed.3

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