Case: 09-40508 Document: 00511045930 Page: 1 Date Filed: 03/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 9, 2010
No. 09-40508
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DANIEL DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:07-CR-63-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Davis, federal prisoner # 97410-079, appeals the denial of his mo-
tion for transcripts, at government expense, of his initial appearance, arraign-
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-40508 Document: 00511045930 Page: 2 Date Filed: 03/09/2010
No. 09-40508
ment, pretrial hearings, trial, and sentencing. He argues that the transcripts
are necessary to file a 28 U.S.C. § 2255 motion.
To obtain a transcript at government expense, the movant must satisfy
28 U.S.C. § 753(f). See Harvey v. Andrist, 754 F.2d 569, 571 (5th Cir. 1985). Sec-
tion 753(f) “provides for a free transcript for indigent prisoners asserting a claim
under § 2255 if a judge certifies that the asserted claim is not frivolous and that
the transcript is needed to decide the issue.” United States v. MacCollom, 426
U.S. 317, 320-21 (1976) (internal quotation marks omitted). The movant must
“bring to [the court’s] attention any facts that might require a close examination
of the trial transcript.” Harvey, 754 F.2d at 571.
Davis’s motion for transcripts did not set forth the issues he intended to
raise in his § 2255 motion or explain why the requested transcripts were neces-
sary to decide those issues. His allegations of judicial and prosecutorial miscon-
duct were not presented in the district court and thus will not be considered by
this court. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). Moreover, Davis’s conclusional allegations are insufficient to establish
that his proposed § 2255 claims are not frivolous and that the transcripts are
necessary to decide the issues. See § 753(f); Harvey, 754 F.2d at 571. Therefore,
he has not shown that the district court erred.
The instant appeal involves no legal points arguable on their merits and
is therefore is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983); 5 TH C IR. R. 42.2. Davis is cautioned that his use of abusive and
insulting language directed at the district court is improper; similar language
and accusations in future filings will result in the imposition of sanctions. See
Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
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