Kilgore v. Weatherly , 500 F. App'x 799 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 31, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
IVAN KILGORE,
Plaintiff-Appellant,
v.
No. 12-7056
(D.C. No. 6:12-CV-00087-JHP-SPS)
SEMINOLE COUNTY PUBLIC
(E.D. Okla.)
OFFICIALS MIKE WEATHERLY;
TIMOTHY OLSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
Ivan Kilgore filed this pro se suit under 42 U.S.C. § 1983 against a former
prosecutor and a court stenographer in Seminole County, Oklahoma. He alleges
that the defendants refused to provide — at no charge to him — a full transcript
of his Oklahoma murder trial for use in his appeal of a separate murder conviction
*
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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
in California and a related habeas petition. This conduct, he says, violated the
Equal Protection Clause of the Fourteenth Amendment.
In a four-page order, the district court dismissed Mr. Kilgore’s complaint
pursuant to 28 U.S.C. § 1915(e), which governs proceedings in forma pauperis
and provides that “the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i).
Mr. Kilgore appeals this decision and seeks permission to proceed in forma
pauperis on appeal. “We generally review a district court’s dismissal for
frivolousness under § 1915 for abuse of discretion. However, where the
frivolousness determination turns on an issue of law, we review the determination
de novo.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (internal
citations omitted).
After careful review of his pleadings and the district court’s order, we
discern no error. To be sure, an indigent defendant is entitled to a free transcript
of his trial when directly appealing the judgment from that trial. Ruark v. Gunter,
958 F.2d 318, 319 (10th Cir. 1992) (citing Griffin v. Illinois, 351 U.S. 12 (1956)).
But no such entitlement attaches in a collateral attack on the same judgment.
Id. (citing United States v. MacCollom, 426 U.S. 317 (1976)). And Mr. Kilgore
was not appealing or even collaterally attacking his Oklahoma conviction when he
requested the transcript — he was contesting (directly and collaterally) a separate
conviction in California, where his Oklahoma conviction was relevant only as
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potential impeachment evidence. Mr. Kilgore cites, and we are aware of, no
authority suggesting the federal Constitution is implicated by the failure to supply
a free transcript in these circumstances.
We affirm the judgment of dismissal for frivolousness, deny Mr. Kilgore’s
motion to proceed in forma pauperis, and direct him to pay any remaining filing
fees forthwith.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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