United States v. Pearce ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 3, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-7052
(D.C. No. 6:91-CR-00009-RAW-1)
CHARLES LAWRENCE PEARCE, (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Pro se prisoner Charles Lawrence Pearce filed a motion in the district court
under 28 U.S.C. §§ 753(f), 2250, to receive a free copy of his change of plea and
sentencing hearing transcripts related to his federal conviction in 1991 for
kidnapping, 18 U.S.C. § 1201.1 He also filed a motion in the district court to unseal
the transcripts. The district court denied both motions, and Pearce timely appealed.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 liberally construe a pro se plaintiff’s pleadings. Requena v. Roberts, 893
F.3d 1195, 1205 (10th Cir. 2018).
We review both decisions for abuse of discretion, United States v. Schneider, 559 F.
App’x 770, 771 (10th Cir. 2014) (unpublished); United States v. Pickard, 773 F.3d
1297, 1302 (10th Cir. 2013), and exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Pearce pleaded guilty to one count of kidnapping in violation of 18 U.S.C.
§ 1201 and received a sentencing enhancement for a “vulnerable victim”
enhancement under U.S.S.G. § 3A1.1(b)(1), which we affirmed on direct appeal.
United States v. Pearce, 967 F.2d 434, 434–35 (10th Cir.), cert. denied, 506 U.S. 922
(1992). Nearly twenty-seven years later, he seeks to challenge the factual basis for
the enhancement.
Under 28 U.S.C. § 753(f), “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 the transcript is needed to decide
the issue presented by the suit.” Sistrunk v. United States, 992 F.2d 258, 259 (10th
Cir. 1993). That said, “[c]onclusory allegations . . . , without more, do not satisfy the
requirements of § 753(f).” Id. On appeal, Pearce
contends that the recent decisions by both the U.S. Supreme Court and
the Tenth Circuit Court of Appeals involving issues relating to
Sentencing Guidelines enhancements, constitute a change in both
Supreme Court and Tenth Circuit law, allowing him to relitigate his
claim.
Aplt. Opening Br. at 2. However, he did not cite a single case from either the Tenth
Circuit or the Supreme Court interpreting the Sentencing Guidelines in his opening
brief to support his position. Accordingly, he has not shown that the requested
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transcripts are needed to decide any issues. Moreover, Pearce’s conviction became
“final” within the meaning of 28 U.S.C. § 2255(f)(1) nearly twenty-seven years ago,
see Pearce v. United States, 506 U.S. 922 (1992), and thus any § 2255 motion is far
outside the one-year statute of limitations. Additionally, aside from making
generalized statements and citing non-binding precedent, Pearce has not presented
any additional facts or legal authority that would make his motion timely under
§ 2255(f)(2)–(4). Accordingly, he has not shown that his suit is not frivolous.2
Finally, there is nothing in the record to suggest that the desired records are in
fact sealed. Unfortunately, not all responses to Pearce’s record requests have made
this clear. The record indicates that the requested documents are not available in
electronic format, but rather are only paper documents. See App. at 3. Therefore,
since there is no showing that the desired transcripts are sealed, the district court
could not have abused its discretion in denying a motion to unseal the transcripts.
Therefore, we affirm the district court.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
Pearce’s argument under 28 U.S.C. § 2250 is premature. Under the plain
language of § 2250, a district court can order the clerk of court to provide free copies
of pertinent court documents to an indigent habeas petitioner “on any application for
a writ of habeas corpus . . . .” But here, Pearce has yet to file any application for a
writ of habeas corpus. And even if he did, as explained above, he has not shown his
suit is not frivolous.
3