Harris v. USA

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anthony C. Harris
v. 	Case No. 12-cv-444-JL
United States
REPORT AND RECOMMENDATION
Before the court is Anthony C. Harris’s motion to proceed
in forma pauperis (“IFP”) in his appeal of the September 11,
2020 post-judgment order in this case, denying his motion to
obtain a transcript of the July 29, 2009 change of plea hearing
of Mr. Harris’s co-defendant, Orlando Matos.
Discussion
Federal Rule of Appellate Procedure 24(a)(3) provides, in
pertinent part, as follows:
A party . . . who was determined to be financially
unable to obtain an adequate defense in a criminal
case, may proceed on appeal in forma pauperis without
further authorization, unless:
(A) the district court--before or after the
notice of appeal is filed--certifies that the
appeal is not taken in good faith or finds that
the party is not otherwise entitled to proceed in
forma pauperis and states in writing its reasons
for the certification or finding . . . .
Fed. R. App. P. 24(a)(3)(A). 	In making that determination, this
court considers whether Mr. Harris’s appeal lacks good faith.
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See id.; Coppedge v. United States, 369 U.S. 438, 445 (1962).
“[T]o determine that an appeal is in good faith, a court need
only find that a reasonable person could suppose that the appeal
has some merit.” 	Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir.
2000). 	An appeal is frivolous and is not taken in objective
good faith if it lacks any rational, arguable basis in law or
fact. 	See Santiago-Lugo v. United States, 94 F. Supp. 3d 156,
158 (D.P.R. 2015).
The appeal at issue in this case is from the September 11,
2020 Order denying Mr. Harris’s motion (Doc. No. 54), seeking a
transcript of his co-defendant Mr. Matos’s change of plea
hearing, see July 29, 2009 Change of Plea H’g, United States v.
Peterson, No. 1:09-cr-00033-JL-2 (D.N.H.). 	Pursuant to 28
U.S.C. § 753(f), a party proceeding IFP in a proceeding filed
under 28 U.S.C. § 2255 may obtain a copy of a transcript at
government expense only if the court certifies that the
proceeding is “not frivolous” and “that the transcript is needed
to decide the issue presented by the suit or appeal.” 	28 U.S.C.
§ 753(f). 	In making that determination, the court may base its
conclusions upon the applicant’s representations about what the
transcript would reveal. 	See Jaffe v. United States, 246 F.2d
760, 762 (2d Cir. 1957).
Mr. Harris has asserted that he believes that transcripts
are a public record, see Notice of Appeal (Doc. No. 55), and
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that he would use the record of Mr. Matos’s change of plea
hearing (which has not previously been transcribed) to find out
(1) if Mr. Matos objected during that hearing to the stipulation
in Mr. Matos’s plea agreement that the warrantless search of Mr.
Matos’s hotel room was consensual, and (2) why Mr. Matos’s plea
agreement continued to incorporate a stipulation saying that Mr.
Matos had consented to the search if in fact he had not
consented to the search. 	Mr. Harris cites in that regard the
portion of Mr. Harris’s trial transcript in which Mr. Matos
testified that he had not consented to the search of the hotel
room, and that he had objected through counsel during his change
of plea hearing to that stipulated fact.
This case arises from Mr. Harris’s first § 2255 motion
seeking to vacate his Hobbs Act robbery and related convictions
and sentence imposed following a September 2009 jury trial.
There are no issues in this case that could be established by
referring to a transcript of Mr. Matos’s change of plea hearing.
In his first § 2255 motion, Mr. Harris claimed, among other
things, that his trial counsel’s failure to move to suppress
evidence seized from Mr. Matos’s hotel room amounted to the
ineffective assistance of counsel. 	This court found no basis
for granting relief under § 2255 upon that claim in its Dec. 17,
2013 Order (Doc. No. 17) in this case, and the court reaffirmed
that conclusion following the November 13, 2014 evidentiary
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hearing on the § 2255 motion. 	See Nov. 13, 2014 Order.
Judgment entered on November 19, 2014, see Doc. No. 35, and both
this court and the First Circuit declined to issue a certificate
of appealability (“COA”), see Feb. 24, 2015 Order (denying COA);
Doc. No. 50 (Harris v. United States, No. 15-1311 (1st Cir. May
3, 2016) (denying COA)).
There is no pending appeal of the November 19 judgment in
this case; no pending motion seeking to reopen that judgment; no
motion seeking reconsideration of the pertinent orders
underlying that judgment; and no request before the First
Circuit seeking leave to file a successive § 2255 motion.
Although the transcript might reinforce or undermine Mr. Matos’s
testimony in Mr. Harris’s trial regarding whether his counsel
objected to a stipulation in his plea agreement during Mr.
Matos’s change of plea hearing, no reasonable person could
conclude that such evidence is necessary to resolve any issues
in this case. 	Accordingly, Mr. Harris has not demonstrated that
there is any arguably nonfrivolous ground for appealing the
order denying his transcript request, and the district judge
should deny Mr. Harris’s motion to proceed IFP on appeal.
Conclusion
For the foregoing reasons, the district judge should direct as
follows:
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1. 	The appeal of the September 11, 2020 Order denying
Mr. Harris’s request for a transcript of the July 29, 2009
Change of Plea H’g, United States v. Peterson, No. 1:09-cr-
00033-JL-2 (D.N.H.), lacks any rational, arguable basis in
law or fact and is thus not taken in good faith.
2. 	The motion to proceed in forma pauperis (Doc. No.
60) in that appeal is DENIED.
3. 	The district court clerk’s office is directed to
notify the First Circuit and Mr. Harris regarding this
decision, pursuant to Fed. R. App. P. 24(a)(4)(B).
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R. Civ.
P. 72(b)(2). 	That period may be extended upon motion. 	Failure to
file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_
Andrea K. Johnstone
United States District Judge
March 17, 2021
cc: 	Anthony C. Harris, pro se
Seth R. Aframe, Esq.
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