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Ruark v. Gunter

United States Court of Appeals, Tenth Circuit
Mar 6, 1992
958 F.2d 318 (10th Cir. 1992)

Summary

holding that petitioner was not entitled to trial transcript in order to prove conclusory allegations of ineffective assistance before filing petition under § 2254

Summary of this case from United States v. Tunget

Opinion

No. 91-1315.

March 6, 1992.

Theodore Ruark, pro se.

Gale A. Norton, Atty. Gen. and Laurie A. Booras, Asst. Atty. Gen., Denver, Colo., for respondents-appellees.

Appeal from the United States District Court for the District of Colorado.

Before SEYMOUR, ANDERSON and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case therefore is ordered submitted without oral argument.


Petitioner-appellant Theodore Ruark appeals from the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. In 1963, Petitioner was convicted in a Colorado state court of escape, aggravated robbery and assault with a deadly weapon. The Colorado Supreme Court affirmed the escape conviction on appeal but reversed the aggravated robbery and assault convictions. See Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965). Petitioner is still serving time for the escape conviction as well as numerous other offenses for which sentences were imposed to run consecutively. He now claims that he received ineffective assistance of counsel at the 1963 trial, but that he cannot adequately fashion a § 2254 petition because the state has denied him access to a trial transcript. The district court dismissed the federal habeas petition, holding that defendant had not stated a constitutional claim. We affirm.

On direct appeal, a trial transcript is an absolute matter of right for an indigent criminal defendant. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). However, a § 2255 petitioner seeking collateral relief must demonstrate that his claim is not frivolous before the court is required to provide him with a free transcript. See United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (Plurality) (interpreting 28 U.S.C. § 753(f)). Although the MacCollom Court dealt with a § 2255 federal petition, we think its reasoning is applicable to Petitioner's § 2254 action as well. See United States v. Delaware, 427 F. Supp. 72 (D.Del. 1976) (interpreting 28 U.S.C. § 2250). The MacCollom Court expressly cited circuit court opinions which held that indigent petitioners seeking collateral relief did not have unlimited access to trial transcripts. 426 U.S. at 327 n. 5, 96 S.Ct. at 2092 n. 5. In one of those cases, Hines v. Barker, 422 F.2d 1002 (10th Cir. 1970), we held that an indigent § 2254 petitioner does not have a constitutional right to access a free transcript in order to search for error. Id. at 1006-07 (distinguishing Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), in which Supreme Court expressly declined to define the parameters of a § 2254 petitioner's right to a free transcript).

Petitioner has not colored his ineffective assistance claims with any factual allegations. He merely states that his counsel was ineffective and that he needs a transcript to prove it. Such "naked allegations" are not cognizable under § 2254, and we are not compelled to allow Petitioner to conduct a search for error. See MacCollom, 426 U.S. at 326-27, 96 S.Ct. at 2092.

AFFIRMED.


Summaries of

Ruark v. Gunter

United States Court of Appeals, Tenth Circuit
Mar 6, 1992
958 F.2d 318 (10th Cir. 1992)

holding that petitioner was not entitled to trial transcript in order to prove conclusory allegations of ineffective assistance before filing petition under § 2254

Summary of this case from United States v. Tunget

holding that claim that transcript was needed to prove allegations was insufficient to require its production

Summary of this case from Crowder v. Martin

holding that, while "[o]n direct appeal, a trial transcript is an absolute matter of right for an indigent criminal defendant . . . a § 225 petitioner seeking collateral relief must demonstrate that his claim is not frivolous before the court is required to provide him with a free transcript;" therefore, the court was not required to provide a transcript to a petitioner in a § 2254 habeas case when the petitioner had made mere conclusory allegations because the court is not required to provide petitioners access to transcripts to search for facts to support their allegations

Summary of this case from Seager v. Wrigley

holding that, while "[o]n direct appeal, a trial transcript is an absolute matter of right for an indigent criminal defendant . . . a § 225 petitioner seeking collateral relief must demonstrate that his claim is not frivolous before the court is required to provide him with a free transcript;" therefore, the court was not required to provide a transcript to a petitioner in a § 2254 habeas case when the petitioner had made mere conclusory allegations because the court is not required to provide petitioners access to transcripts to search for facts to support their allegations

Summary of this case from Torres v. Tapia

holding that on a Sec. 2255 a Petitioner seeking relief must show his claim is not frivolous before the court is required to provide him with a free transcript

Summary of this case from Steward v. Workman

finding naked allegations of ineffective assistance of counsel not cognizable under 28 U.S.C. § 2254

Summary of this case from Thomas v. Patton

noting that "naked allegations" in habeas petitions are insufficient to state cognizable habeas claims

Summary of this case from Frederick v. Farris

noting that "'naked allegations' are not cognizable under § 2254"

Summary of this case from Hunter v. Bear

noting that "naked allegations" in habeas petitions are insufficient to state cognizable habeas claims

Summary of this case from Mason v. Martin

noting that "an indigent § 2254 petitioner does not have a constitutional right to access a free transcript in order to search for error"

Summary of this case from Ward v. Mich.

noting that an indigent § 2254 petitioner does not have a constitutional right to access a free transcript in order to search for error

Summary of this case from Bearheart v. Dittman

reasoning in MacCollom dealing with § 2255 federal petition is applicable to § 2254 as well

Summary of this case from Dunsmore v. Beard

explaining prisoner does not have right to free transcript simply to search for error in record

Summary of this case from United States v. Cano

applying MacCollom to a § 2254 action

Summary of this case from Lucero v. Medina

applying MacCollom to a § 2254 action

Summary of this case from Lucero v. Medina

explaining that indigent habeas petitioners seeking collateral relief do not have unlimited access to free transcripts to search for error

Summary of this case from Smith v. Palmer

applying MacCollom to a § 2254 action

Summary of this case from Savajian v. Milyard

applying MacCollom to § 2254 petitioner's case

Summary of this case from Gentry v. Deuth
Case details for

Ruark v. Gunter

Case Details

Full title:THEODORE RUARK, PETITIONER-APPELLANT, v. FRANK GUNTER, GALE A. NORTON…

Court:United States Court of Appeals, Tenth Circuit

Date published: Mar 6, 1992

Citations

958 F.2d 318 (10th Cir. 1992)

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