FILED
United States Court of Appeals
Tenth Circuit
May 22, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-3300
(D.C. No. 6:07-CR-10234-MLB-1)
(D. Kan.)
STEPHEN J. SCHNEIDER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. **
Defendant Stephen Schneider, proceeding pro se, 1 appeals the district court’s
denial of his requests for appointment of counsel and for a free transcript of trial
court proceedings. Defendant also seeks leave to proceed in forma pauperis
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir.
R. 32.1.
1
We construe Defendant’s pro se filings liberally. See Garza v. Davis, 596
F.3d 1198, 1201 n.2 (10th Cir. 2010).
(“IFP”). For the following reasons, we affirm the decision below but grant the
petition to proceed IFP.
I.
On June 24, 2010, a jury in the District of Kansas convicted Defendant on a
number of counts including healthcare fraud, unlawful drug distribution, and money
laundering. As a result, the district court sentenced Defendant to 360 months in jail.
Represented by counsel, Defendant thereafter appealed, and we affirmed. See United
States v. Schneider, 704 F.3d 1287 (10th Cir.), cert. denied, 133 S. Ct. 2868 (2013).
On October 3, 2013, Defendant asked the district court to appoint him counsel or
provide him with a free trial transcript so that he could file a § 2255 motion. In a
written order, the district court denied the request. Soon thereafter, Defendant again
asked the court to appoint counsel, this time indicating he would be raising an
ineffective assistance claim under § 2255. And the district court again denied the
request. In a separate order, the court also denied the transcript request. Defendant
appeals these orders. He has yet to file a § 2255 motion.
II.
The first issue on appeal is whether the district court wrongly declined to
provide Defendant with a free trial transcript. Under 28 U.S.C. § 753(f)—a
provision which the Supreme Court has upheld as constitutional—“an indigent
defendant is entitled to have the government pay the fees for a copy of his transcript
in a § 2255 proceeding only if he demonstrates that his suit is not frivolous and that
2
the transcript is needed to decide the issue presented by the suit.” Sistrunk v. United
States, 992 F.2d 258, 259 (10th Cir. 1993) (emphasis added) (citing United States v.
MacCollom, 426 U.S. 317 (1976)). “Conclusory allegations that a defendant was
denied effective assistance of counsel, without more, do not satisfy the requirements
of § 753(f).” Id. We review the district court’s decision to deny a defendant’s
transcript request for an abuse of discretion. Wright v. City of St. Francis, Kan., 166
F. App’x 343, 347 (10th Cir. 2006) (unpublished).
Defendant’s allegations regarding the effectiveness of his prior counsel are
conclusory and ambiguous. In his brief, Defendant contends his defense team was
plagued by “many short-comings” and not “well prepared for this trial.” These are
bare conclusions, utterly bereft of specifics. In his motion to proceed IFP, Defendant
adds that he “was not informed of his . . . rights under Miranda v. Arizona, 384 U.S.
436.” While slightly more specific, Defendant gives no indication of what impact,
if any, this lack of information had on his trial or appeal. Indeed, by using passive
voice, he does not even state that it was his counsel—as opposed to the police, for
example—who failed to inform him of his Miranda rights. Finally, he never
mentioned Miranda to the district court, and arguments not made below are waived
on appeal. See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d
1163, 1167 (10th Cir. 2005). As such, the court did not abuse its discretion in
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denying Defendant’s request for a free trial transcript. 2
III.
The second issue on appeal is whether the district court wrongly declined to
appoint counsel to help Defendant file a § 2255 motion. Although Defendant claims
the district court ignored his Sixth Amendment right to counsel, “there is no right to
counsel in collateral proceedings.” United States v. Prows, 448 F.3d 1223, 1229
(10th Cir. 2006) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). Rather, under
§ 2255(g) and 18 U.S.C. § 3006A(a)(2)(B), a district court may appoint counsel to
a “financially eligible person” when “the interests of justice so require.” In the end,
“[t]he decision to appoint counsel is left to the sound discretion of the district court.”
Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Defendant asserts an attorney is necessary because of the complexity and
length of his trial (7 weeks or so) and transcripts (over 30,000 pages). Defendant,
however, has not provided any indication that the specific issues he will contest in
his § 2255 motion are themselves complex. Indeed, as discussed above, he has thus
far failed to come forth with any specific issues at all; rather, his allegations
regarding ineffective assistance are conclusory and ambiguous. Moreover, none of
2
This being the case, we need not determine whether “the actual filing of a
habeas petition is a necessary prerequisite” for a defendant to qualify for a free
transcript under 28 U.S.C. § 753(f). Sistrunk, 992 F.2d at 259.
4
the cases cited by Defendant discuss an abuse of discretion in this context. Instead,
they involve the right to counsel on a direct appeal, see, e.g., Penson v. Ohio, 488
U.S. 75, 85 (1988) (“The need for forceful advocacy does not come to an abrupt halt
as the legal proceeding moves from the trial to appellate stage.”), and the
effectiveness (or lack thereof) of that counsel, see, e.g., Lombard v. Lynaugh, 868
F.2d 1475, 1479 (5th Cir. 1989) (“Lombard, who has been represented by counsel
here and below, claims that he was denied effective assistance of counsel on his
direct state appeal . . . .”). Thus, Defendant has given us little reason to believe the
district court abused its discretion in declining to appoint him counsel.
IV.
Defendant also petitions the court to proceed IFP. Though his claims were
ultimately without merit, they were not so frivolous or unreasoned as to imply bad
faith. See 28 U.S.C. § 1915(a)(1) & (a)(3). Furthermore, Defendant appears to be
nearly destitute and there is no evidence to suggest his monthly income exceeds his
monthly expenses by any significant amount such that he would have had sufficient
income to pay the filing fees at the time this appeal was sought. Cf. Brewer v. City
of Overland Park Police Dep’t, 24 F. App’x 977, 979 (10th Cir. 2002) (unpublished).
Therefore Defendant’s petition to proceed IFP is GRANTED. For the reasons set
5
forth above, however, the judgment of the district court as to all other issues is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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