United States v. Hernandez-Cuellar ( 2021 )

Case: 21-40051 Document: 00516037072 Page: 1 Date Filed: 09/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2021
No. 21-40051 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Victor Hernandez-Cuellar,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:16-CR-111-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Jose Victor Hernandez-Cuellar, federal prisoner # 26608-078, appeals
the district court’s denial of his motion for copies of transcripts and other
court records. He asserts that he needs access to the records and transcripts
in his case to prepare a 28 U.S.C. § 2255 motion and that his previous
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-40051
attorneys have denied his requests for copies of his file. Additionally, he
contends that the district court’s denial of his motion violated his Fifth and
Fourteenth Amendment rights.
An indigent defendant has no constitutional right to acquire a copy of
his transcripts or court records for use in a collateral proceeding. See United
States v. MacCollum, 426 U.S. 317, 325-26 (1976). However, a movant for a
writ of habeas corpus is entitled to copies of court records without cost where
he has been granted leave to proceed in forma pauperis and his federal habeas
motion is pending before the court. 28 U.S.C. § 2250; see Walker v. United
States, 424 F.2d 278, 278-79 (5th Cir. 1970). The records will not be
provided, though, where a movant contends that he needs them to formulate
a claim or to review for facts that may support a potential habeas petition. See
United States v. Carvajal, 989 F.2d 170, 170 (5th Cir. 1993).
When Hernandez-Cuellar moved to furnish the requested records, no
§ 2255 motion or other collateral-review application was pending before the
district court. While he claims that he was granted leave to file a successive
§ 2255 motion, his motion was, in fact, denied as unnecessary. Because there
was no live action, the district court had no basis to consider his motion for
production. See Carvajal, 989 F.2d at 170; Walker, 424 F.2d at 278-79.
In any event, Hernandez-Cuellar sought production of the requested
documents precisely for the improper purpose of “fishing” for possible
claims for relief. See Carvajal, 989 F.2d at 170. Hernandez-Cuellar does not
identify an error in the district court’s analysis, and while he attempts to
show a need for production, he merely argues the merits of his substantive
habeas claims and generally asserts that the documents will prove his claims.
See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987); Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). As to
Hernandez-Cuellar’s claims of constitutional violations implicit in the denial
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No. 21-40051
of his motion, we do not address arguments raised for the first time on appeal.
See United States v. Cates, 952 F.2d 149, 152 (5th Cir. 1992).
Accordingly, Hernandez-Cuellar’s appeal is without arguable merit
and is DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983); 5th Cir. R. 42.2. Hernandez-Cuellar is CAUTIONED
that filing frivolous, repetitive, or otherwise abusive appeals may invite
sanctions, including dismissal, monetary sanctions, and restrictions on his
ability to file pleadings in this court and any court subject to this court’s
jurisdiction.
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