USA v. MCCLAIN

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERRAN MAURICE MCCLAIN, SR., )
)
Petitioner, )
) 1:25CV1028
v. ) 1:24CR328-1
)
UNITED STATES OF AMERICA, )
)
Respondent. )
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal prisoner, submitted a Letter seeking a sentence reduction under
Amendment 821 to the United States Sentencing Guidelines. Ordinarily a request for a
reduction based on a Guidelines Amendment would have to be made through a motion under
18 U.S.C. § 3582(c)(2). However, that statute allows for motions seeking retroactive
application of certain amendments enacted after a defendant’s sentencing. Petitioner’s
sentencing occurred on June 5, 2025, or more than a year and a half after the November 1,
2023, effective date of Amendment 821. Therefore, the changes rendered by Amendment
821 were already applied at Petitioner’s sentencing to the extent they possibly affected his case.
(See Presentence Report (Docket Entry 16) ¶ 16 (stating that the 2024 Guidelines Manual,
including all guideline amendments, was used in Petitioner’s sentencing calculation).) If
Petitioner claims that a sentencing error that violated his constitutional rights occurred in some
way, this constitutes an attack on the conviction or sentence he received in this Court. The
document he filed is not a recognizable method for achieving this goal. Instead, the proper
avenue for such an attack, if one exists, is ordinarily a motion to vacate, set aside, or correct
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sentence pursuant to 28 U.S.C. § 2255. For this reason, the Court will construe the submission
as such a motion. However, the Motion (Docket Entry 33) cannot be further processed for
the following reason:
I. The Motion is not on the proper § 2255 form.
Because of this pleading failure, this particular Motion will be dismissed, but without
prejudice to Petitioner promptly filing a new motion properly following the 28 U.S.C. § 2255
forms and correcting the defect of the present Motion after the conclusion of Petitioner’s
direct appeal, which remains pending.1 If Petitioner seeks to file a motion under § 2255 after
his appeal finishes, he should request the proper forms from the Clerk’s Office and use them
to file that motion.
Petitioner also seeks a copy of his sentencing transcript. With respect to the request
for transcripts, under 28 U.S.C. § 753(f), a defendant proceeding in forma pauperis is entitled to
1 Because Petitioner’s submission is being dismissed without prejudice and is not being decided on its
merits, this case will not count as a first motion which would later trigger the prohibitions against
second or successive motions found in 28 U.S.C. § 2255(h). However, if Petitioner chooses to later
submit a § 2255 motion that conforms with this Order and Recommendation, he should be aware that
he is normally entitled to have only one § 2255 motion decided on its merits. Second or successive
motions are barred from consideration by this Court unless a petitioner first receives permission from
the Fourth Circuit Court of Appeals to file such a motion. 28 U.S.C. §§ 2255(h) and 2244. That
permission is granted only in very narrow circumstances. Because of this, Petitioner should act
carefully in resubmitting a motion. See generally Castro v. United States, 540 U.S. 375 (2003). If
Petitioner wishes to challenge his conviction, he must use the § 2255 forms supplied by the Court,
include all of the claims for relief he wishes to raise, and closely follow the instructions provided. To
the extent there are any issues regarding the running of the statute of limitations in this case, the parties
can litigate those issues following any refiling by Petitioner. If Petitioner wants a form of relief other
than relief from his conviction or sentence, he should make that clear in any new submission and
should state that he is not seeking to attack his conviction or sentence. He should not use the § 2255
forms in that instance. Finally, Petitioner may choose not to submit a motion, in which case his claims
will not be considered further.
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a copy of his transcripts at Government expense in a federal habeas proceeding only if he
demonstrates that the collateral action is “not frivolous” and that the transcript is “needed to
decide the issue” presented in the collateral action. See 28 U.S.C. § 753(f); United States v.
MacCollom, 426 U.S. 317, 320-21 (1976) (noting that § 753(f) contains “a limited grant of
authority to the courts to authorize the expenditure of public funds for furnishing transcripts
to plaintiffs in § 2255 actions,” but only where the court certifies that the claims are “not
frivolous” and that the transcript is “needed to decide the issue presented by the suit”); see
also United States v. Parker, 273 F. App’x 243, 244 (4th Cir. 2008) (“An indigent defendant
is entitled to free transcripts from his criminal proceedings only upon a showing of a
particularized need for the transcript.”); United States v. Glass, 317 F.2d 200, 202 (4th Cir.
1963) (“An indigent is not entitled to a transcript at government expense without a showing
of the need, merely to comb the record in the hope of discovering some flaw.”). Similarly,
under 28 U.S.C. § 2250, the Court may direct the Clerk to provide copies of documents or
parts of the record at Court expense, but a petitioner must demonstrate a particularized need
in relation to the claims he seeks to raise. See 28 U.S.C. § 2250; United States v. Harris, Crim.
No. 06-20131-01-KHV, 2010 WL 604183, at *1 (D. Kan. Feb. 17, 2010) (unpublished) (citing
§ 2250 as authority for denial of generalized request for transcripts); Cassidy v. United States,
304 F. Supp. 864, 867 (W.D. Mo. 1969) (applying § 2250 to a motion under § 2255).
In the instant Motion, Petitioner has neither shown that transcript is necessary for him
to frame his claims, nor established that it is otherwise needed in order to decide any issues
presented in these proceedings at this time. In fact, it is not even clear what Petitioner’s claims
may be or what type of proceeding he seeks to file. In addition, the Court notes that, to the
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extent previously-prepared transcripts or other documents are part of the Court file, Petitioner
must first exhaust other means of access, specifically by requesting a copy of those transcripts
or documents from his prior court-appointed counsel.2 For these reasons, the Court will deny
Petitioner’s request for a copy of the sentencing transcript at the Court’s expense, without
prejudice to Petitioner making a later request for particular documents that he is unable to
obtain from prior appointed counsel, if Petitioner can set out a sufficient need therefor.
IT IS THEREFORE ORDERED that Petitioner’s request for a transcript is denied.
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without
prejudice to Petitioner promptly filing a corrected motion on the proper § 2255 forms if he
seeks to raise a claim under § 2255.
This, the 4th day of December, 2025.
/s/ Joe L. Webster
United States Magistrate Judge
2 If transcripts were previously prepared and Petitioner has requested a copy of these transcripts from
prior attorney, and the attorney has refused the request, Petitioner may file a motion setting out these
facts, and should include a Certificate of Service serving all parties, including the attorney and the
United States Attorney.
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