United States of America v. Cosme Francisco

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1379
UNITED STATES OF AMERICA
v.
COSME FRANCISCO,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Criminal Action No. 00-cr-00255)
District Judge: Honorable Joel H. Slomsky
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
(Opinion filed: August 19, 2009)
OPINION
PER CURIAM
Cosme Francisco, a federal prisoner proceeding pro se, appeals an order of the
United States District Court for the Eastern District of Pennsylvania denying his motion
to obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript from

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his criminal proceeding without prepayment of fees or costs. We will affirm.
In 2000, Francisco pleaded guilty in District Court to one count of conspiracy to
distribute heroin and one count of distribution of heroin in violation of 21 U.S.C.
§§ 841(a)(1), 846. Francisco left the courthouse in 2001 while awaiting sentencing and
remained a fugitive until 2008, when he was arrested in New York. In June 2008, the
District Court imposed a sentence of 90 months in prison. Francisco did not file a direct
appeal. The documents related to Francisco’s criminal proceedings were filed under seal.
In January 2009, seven months after he was sentenced, Francisco filed a motion to
obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript in his
criminal proceeding without prepayment of fees or costs. He stated that he needed the
documents to file a notice of appeal. The District Court denied Francisco’s motion, and
this appeal followed.
To the extent Francisco appeals the District Court’s denial of his request for the
docket sheet and the plea agreement, the Government has provided these documents to
Francisco through the service of its supplemental appendix in this appeal. Thus, any issue
with respect to these documents is moot.
The Government states that it does not have the requested transcripts of the plea
and sentencing hearings as it never ordered and paid for these documents. The
Government argues that the District Court did not err in denying Francisco’s request for
these documents at the public’s expense because he had no appeal or collateral petition

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To the extent Francisco seeks to raise an ineffective assistance of counsel claim in his1
brief, Francisco did not raise such a claim in District Court and the claim is not properly
before us.
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pending. We agree. While Francisco correctly states that an indigent defendant is
entitled to a free trial transcript on appeal, United States v. Brentley, 961 F.2d 425, 426
(3d Cir. 1992), Francisco did not file a direct appeal and the time to do so has expired.
The District Court may order that transcripts be provided in proceedings brought
pursuant to 28 U.S.C. § 2255 to persons permitted to sue or appeal in forma pauperis, but
the District Court must certify that the motion is not frivolous and that the transcript is
needed to decide the issue presented. 28 U.S.C. § 753(f). Francisco did not file a
§ 2255 motion with his transcript request. Thus, the District Court did not err in denying
Francisco’s motion for transcripts. Cf. United States v. MacCollom, 426 U.S. 317, 324-
25 (1976) (holding that the statutory conditions of § 753(f) for furnishing a free transcript
in § 2255 proceedings are consistent with due process and equal protection).
Accordingly, we will affirm the order of the District Court. The Government’s1
motion to file its supplemental appendix under seal is granted.

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