Tyler v. Owen ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 1 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
WILLIAM TYLER,
Plaintiff-Appellant,
No. 98-5101
v. (D.C. No. 96-CV-817)
(N.D. Okla.)
JIM OWEN,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause 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This order and judgment is not binding precedent, except under the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, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In this 28 U.S.C. § 2254 action, William Tyler claims that the state is
violating his constitutional rights by denying him access to his trial transcript,
which he requested in order to prepare a collateral challenge to his conviction.
He also asks us to hold unconstitutional the Oklahoma Court of Criminal
Appeals’ decision in Tiger v. State, 859 P.2d 1117 (Okla. Crim. App. 1993). The
district court denied Mr. Tyler’s petition because he did not articulate a non-
frivolous ground for collateral review. We deny his motion for a certificate of
appealability and dismiss the appeal.
On April 29, 1993, Mr. Tyler was convicted of first degree murder and
given a sentence of life without parole, which was later modified on appeal to life
with the possibility of parole. In March 1996, he filed an action in Craig County
District Court requesting a free copy of his transcript. That court denied his
request, and he appealed. The Oklahoma Court of Criminal Appeals affirmed the
district court’s action, noting that Mr. Tyler had not filed an application for post-
conviction relief showing a need for his transcript. He then filed this habeas
action.
In United States v. MacCollom, 426 U.S. 317 (1976), the Supreme Court
upheld the constitutionality of 28 U.S.C. § 753(f), which permitted free
transcripts to be furnished to only those federal habeas petitioners who
demonstrated their appeal was not frivolous and required a transcript for its
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disposition. Id. at 326. 1 In Ruark v. Gunter, 958 F.2d 318 (10th Cir. 1992), we
extended the reasoning of MacCollum to state habeas petitioners as well, holding
“an indigent § 2254 petitioner does not have a constitutional right to access a free
transcript in order to search for error.” Id. at 319. Tiger is consistent with
MacCollum and Ruark. The court in Tiger denied access to a petitioner who
“ha[d] made no showing of need or a purpose” for her transcripts. 859 P.2d at
1117. Mr. Tyler does not allege nor do we have any indication that Oklahoma
requires habeas petitioners to meet a standard higher than that in MacCollum.
The other cases cited by Mr. Tyler do not mandate a contrary result.
Several discuss rights of indigent criminal defendants, but do not directly address
whether the state must provide a trial transcript to a petitioner who has not shown
a non-frivolous basis for appeal. See Roberts v. LaVallee, 398 U.S. 40, 41-42
(1967) (striking down a New York statute which required payment for preliminary
hearing transcript); Smith v. Bennett, 365 U.S. 708, 709 (holding unconstitutional
a filing fee requirement that prevented indigent petitioners from filing habeas
corpus actions). Another case invalidated fee provisions that denied transcripts to
indigent petitioners regardless of the merits of their appeals. See Long v. District
Court of Iowa, 385 U.S. 192, 194 & n.1 (1966). Wade v. Wilson, 396 U.S. 2821
That standard applies only to federal habeas petitioners; an indigent
defendant has a right to a transcript of his trial (or comparable substitute) on
direct appeal, see Griffin v. Illinois, 351 U.S. 12, 19-20 (1956).
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(1970), expressly reserved the question of “whether there are circumstances in
which the Constitution requires that a State furnish an indigent state prisoner free
of cost a trial transcript to aid him to prepare a petition for collateral relief.” Id.
at 286. The Tenth Circuit cases Mr. Tyler cites, Reeves v. Little, 120 F.3d 1136,
1138 (10th Cir. 1997), and Harris v. Champion, 15 F.3d 1538, 1557 (10th Cir.
1994), both simply state that in certain circumstances an indigent will have a right
to a free transcript on collateral review, not that the right is absolute. Indeed,
MacCollum and Ruark make clear that the right can be conditioned on a petitioner
showing he needs the transcript to pursue a non-frivolous appeal.
Because Mr. Tyler has not “made a substantial showing of the denial of a
constitutional right” as required for the issuance of a certificate of appealability,
28 U.S.C. § 2253(c)(2), we DENY his motion for a certificate and DISMISS the
appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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