United States v. Elbert Walker, Jr.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12407
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELBERT WALKER, JR.,
a.k.a. SHULA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:12-cr-00001-WLS-TQL-1
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2 Opinion of the Court 21-12407
____________________
Before LUCK, LAGOA, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Elbert Walker, proceeding pro se, appeals the dis-
trict court’s denial of his motion requesting audio transcripts from
his criminal trial and its denial of his related motion for in forma
pauperis (“IFP”) status. After careful review, we affirm.
I. BACKGROUND
Defendant and two relatives were charged in 2012 with one
count of conspiracy to commit multiple objects, including arson,
bank fraud, wire fraud, mail fraud, bankruptcy fraud, possession of
a forged security, and making false declarations in court in viola-
tion of 18 U.S.C. §§ 371, 844(n), and 1349. See United States v.
Walker, 758 F. App’x 868, 869 (11th Cir. 2019). Defendant also was
charged separately with two counts of being a convicted felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one
count of possessing a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k). See id. The conspiracy charges were
based on evidence of a scheme perpetrated by Defendant and his
relatives that involved acquiring various properties, transferring
the properties among each other, setting fire to the properties, and
making fraudulent insurance claims to collect money for the fire
losses. See id. The firearms charges were based on evidence that
the police found multiple guns, including a shotgun with an oblit-
erated serial number, when they searched Defendant’s home in
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21-12407 Opinion of the Court 3
connection with the conspiracy and the fact that Defendant had a
prior New Jersey conviction for welfare fraud that initially resulted
in a two-year sentence. See id. at 871.
Defendant was tried and convicted by a jury of all the
charges asserted against him. He was sentenced to prison terms of
121 months for the conspiracy, 120 months each for the § 922(g)
firearm offenses, and 60 months for possession of a firearm with an
obliterated serial number, all to be served concurrently. This
Court affirmed Defendant’s conviction on appeal. Defendant later
filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255,
but he voluntarily dismissed the motion after he began serving the
supervised release portion of his sentence. 1
After this Court affirmed his conviction on appeal, Defend-
ant filed two pro se motions requesting that he be provided audio
transcripts from his criminal trial without prepayment. Defendant
attached an affidavit to his second motion indicating that he had
real estate valued at $160,000, a car valued at $6000, and a balance
of $51.56 in his inmate account, but stating that he nevertheless
was unable to pay for the transcripts he had requested. The court
denied the first motion without prejudice, noting that it appeared
from the record Defendant still was represented by an attorney and
instructing Defendant to submit any motions through his attorney.
The court denied the second motion on the merits, explaining that
Defendant’s former attorney had ordered the transcripts
1 Defendant apparently completed the incarceration portion of his sentence
in June or July 2020.
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4 Opinion of the Court 21-12407
Defendant was requesting in his motion in connection with his
criminal appeal and that Defendant failed to show (1) why he
needed the transcripts now or (2) that they were unavailable to him
from his attorney. The court stated further that Defendant failed
to show he was unable to pay for the transcripts given his affidavit
attesting to his possession of $166,000 in assets.
Thereafter, Defendant filed a pro se civil complaint against
his criminal defense attorney, asserting a § 1983 claim to recover
for Fifth and Sixth Amendment violations arising from the attor-
ney’s alleged ineffective assistance at trial. See Walker v. Williams,
No. 21-10587, 2022 WL 363809, at *1 (11th Cir. Feb. 8, 2022). The
district court dismissed Defendant’s civil suit because § 1983 pro-
vides for relief only against an official who is acting under color of
law and Defendant’s court-appointed attorney was not acting un-
der color of law for purposes of § 1983. See id. at *2 and Polk Cnty.
v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not
act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.”).
This Court affirmed on appeal. Walker, 2022 WL 363809, at *1.
Defendant filed the motion at issue in this appeal while the
appeal in his civil case was pending. In the motion, Defendant re-
quested “a copy of the audio transcripts” from his criminal trial. 2
2 Defendant filed a second motion in which he requested a copy of documents
filed at docket numbers 284 and 323 for his civil case, presumably the § 1983
case he filed against his criminal defense attorney referenced above. Defendant
does not argue in his appellate briefing that the district court erred by denying
his request for these documents. Accordingly, we do not address that issue in
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21-12407 Opinion of the Court 5
Defendant did not explain in the motion why he needed the audio
transcripts or whether he had tried to obtain them from his former
attorney, and he did not attach an affidavit or any other evidence
to the motion establishing his inability to pay. Nevertheless, De-
fendant suggested that the audio transcripts should be provided at
public expense because he was filing the motion “under forma pau-
peris.”
The district court denied Defendant’s motion, noting that
courts “do not typically give documents or transcripts to defend-
ants free of charge” except “where warranted based upon a suffi-
cient showing by the movant.” The court determined that Defend-
ant failed to make such a showing because he did not explain in his
motion why he needed the transcripts and why they were not al-
ready in his possession or available to him through his former at-
torney, who had ordered them in connection with Defendant’s
criminal appeal. The court stated further that it was unaware of
any pending litigation for which Defendant might need the tran-
scripts, such as a habeas petition. And finally, the court observed
that although Defendant said he could not pay for the transcripts,
he failed to include any information in his motion supporting his
inability to pay and he attested in an affidavit attached to a previous
motion that he had $166,000 in assets. The court concluded by
this appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“[T]he law is by now well settled in this Circuit that a legal claim
or argument that has not been briefed before the court is deemed abandoned
and its merits will not be addressed.”).
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6 Opinion of the Court 21-12407
suggesting that Defendant request the desired transcripts from his
former attorney or pay the fee required to obtain them from the
clerk’s office.
Defendant appealed. He initially moved in this Court to
proceed IFP, but the Court denied his motion, after which the ap-
peal was dismissed. The appeal was reinstated after Defendant paid
the required filing fee, and it is now properly before the Court.
II. DISCUSSION
We review the district court’s denial of Defendant’s motion
to be provided trial transcripts without prepayment for abuse of
discretion. See United States v. Cuya, 964 F.3d 969, 970 (11th Cir.
2020) (“We review a district court’s denial of a motion to compel
discovery for abuse of discretion.”); Green v. Union Foundry Co., 281
F.3d 1229, 1233 (11th Cir. 2002) (“This court reviews the denial of
post-judgment motions under an abuse of discretion standard.”).
We also review for abuse of discretion the court’s denial of Defend-
ant’s motion to proceed IFP. See Martinez v. Kristi Kleaners, Inc., 364
F.3d 1305, 1306 (11th Cir. 2004). Under the abuse of discretion
standard, we will only reverse if the district court “applied an in-
correct legal standard, failed to follow proper procedures in making
the relevant determination, or made findings of fact that are clearly
erroneous.” Lugo v. Fla. Dep’t of Corr., 750 F.3d 1198, 1207 (11th Cir.
2014).
In criminal proceedings, we generally review any issues not
raised in the district court for plain error. See United States v. John-
son, 981 F.3d 1171, 1178 (11th Cir. 2020) (“[W]hen a defendant fails
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21-12407 Opinion of the Court 7
to raise an argument in district court, we review for plain error.”).
To establish plain error, Defendant must show that “(1) an error
occurred, (2) the error was plain or obvious, and (3) it affected his
substantial rights.” Id. at 1179. As to the second prong, “[w]hen
the explicit language of a statute or rule does not specifically re-
solve an issue, there can be no plain error where there is no prece-
dent from the Supreme Court or this Court directly resolving it.”
United States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (quot-
ing United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006)). As-
suming Defendant can establish plain error that affected his sub-
stantial rights, this Court may exercise its discretion to remedy the
error “if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” See Johnson, 981 F.3d at 1179.
Applying the above standards, the district court clearly did
not abuse its discretion when it denied Defendant’s motion to ob-
tain transcripts of his criminal trial without prepayment. Defend-
ant does not point to any failure by the court to follow proper pro-
cedures in ruling on his motion, and it appears from the record that
the court applied the correct legal standard. Pursuant to the rele-
vant statute, court reporters “may charge and collect fees for tran-
scripts requested by the parties.” See 28 U.S.C. § 753(f). The Gov-
ernment must pay for transcripts in criminal proceedings and in §
2255 and other proceedings brought by “persons allowed to sue,
defend, or appeal” IFP where “the transcript is needed to decide the
issue presented by the suit or appeal” and the litigation is certified
by a judge as “not frivolous.” Id. However, “a federal prisoner is
not entitled to obtain copies of court records at the government’s
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8 Opinion of the Court 21-12407
expense to search for possible defects merely because he is . . . in-
digent.” United States v. Herrera, 474 F.2d 1049, 1049 (5th Cir. 1973)
(summarily affirming the district court’s denial of a defendant’s
motion to obtain a trial transcript at government expense where
the lower court had characterized defendant’s request for the tran-
script as a “fishing expedition”).3
Nor did the district court clearly err when it found that De-
fendant failed to make the required showing to obtain trial tran-
scripts without prepayment. As the court pointed out, the tran-
scripts were furnished to Defendant’s attorney during his criminal
appeal and Defendant did not explain in his motion why he could
not obtain them from the attorney. In addition, when Defendant
filed his motion to obtain the transcripts directly from the court,
his criminal appeal was complete, and he had voluntarily dismissed
his § 2255 motion. Thus, Defendant could offer no legitimate rea-
son why he needed the transcripts he was requesting. See Walker
v. United States, 424 F.2d 278, 279 (5th Cir. 1970) (affirming a district
court’s denial of a prisoner’s transcript request where the prisoner
had no appeal pending and had not filed a § 2255 motion); United
States v. MacCollom, 426 U.S. 317, 321 (1976) (citing, in response to
an indigent defendant’s request for a free transcript, “[t]he estab-
lished rule . . . that the expenditure of public funds is proper only
when authorized by Congress” in the governing statute).
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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21-12407 Opinion of the Court 9
Defendant argues in his appellate briefing that the tran-
scripts will help him establish various errors in his criminal trial,
including due process and other constitutional violations arising
from an allegedly defective indictment, false testimony, and im-
proper conduct on the part of the trial judge and the prosecutor.
He also suggests that he needs the audio transcripts because the
paper transcripts were “tamper[ed] with.” Because Defendant did
not raise these issues below, we review them for plain error. See
Johnson, 981 F.3d at 1178. And for the reasons set out above, we
find that Defendant failed to show any error, much less plain error,
with respect to the district court’s denial of his motion for tran-
scripts without prepayment. We note also that (1) Defendant of-
fers nothing to substantiate the allegations he asserts for the first
time on appeal and (2) there is no apparent mechanism for Defend-
ant to assert any claims based on the newly asserted allegations be-
cause his criminal appeal has concluded and his opportunity to file
a § 2255 motion has expired.
Finally, the district court acted within its discretion when it
denied Defendant’s motion to proceed IFP. Defendant did not sub-
mit with his motion the required affidavit describing his current
financial status and the affidavit he attached to a prior motion
showed that he had approximately $166,000 in assets. See 28 U.S.C.
§ 1915(a)(1) (stating that a federal court may grant IFP status to “a
person who submits an affidavit that includes a statement of all
[his] assets” and that he “is unable to pay [applicable] fees”). Fur-
ther, the court provided “a sufficient explanation for its determina-
tion on IFP status to allow for meaningful appellate review.” See
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10 Opinion of the Court 21-12407
Martinez, 364 F.3d at 1307. Namely, Defendant failed to show ei-
ther an inability to pay the fee required to obtain the transcripts he
requested or a legitimate need for the transcripts that went beyond
a “fishing expedition” for potential error in his criminal trial. Signif-
icantly, this Court likewise denied Defendant’s motion to proceed
IFP.
III. CONCLUSION
For the foregoing reasons, the district court’s order denying
Defendant’s motion for audio transcripts and his motion to pro-
ceed IFP is AFFIRMED.