United States of America, Plaintiff-appellee, v. Francisco Audia, Defendant-appellant, 87 F.3d 1323 (9th Cir. 1996)

MEMORANDUM^** 

Francisco Audia, a federal prisoner, appeals pro se the district court's order denying his request for free transcripts of portions of his criminal trial and pretrial proceedings pursuant to 28 U.S.C. § 753(f). Audia contends that he needs the transcripts and copies of various court records in order to file a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel on direct appeal. Section 735(f) does not authorize the district court to order payment for transcripts if the defendant has not yet filed a collateral attack on his conviction or sentence under § 2255. United States v. MacCollom, 426 U.S. 317, 321 (1976). Accordingly, we affirm the district court's order.

To obtain transcripts, Audia first must file a § 2255 motion. After he files the motion, the district court will decide whether he also has met the other conditions for obtaining transcripts at government expense. See 28 U.S.C. § 735(f) (district court must certify that § 2255 motion is not frivolous and that transcript is needed to decide issue presented by motion).

AFFIRMED.