US SUPREME COURT DECISIONS

Nearly two years after his conviction of a federal crime, from which he took no appeal, respondent, pro se, filed a complaint for declaratory and injunctive relief, in which he asserted that he intended to seek vacation of his sentence pursuant to 28 U.S.C. § 2255; that he was unable to afford a transcript; that without one he could not frame his arguments for effective review; that a transcript would show that he had not been afforded effective assistance of counsel; and that there was insufficient evidence to support the guilty verdict. The District Court, after granting respondent leave to proceed in forma pauperis, appointing counsel, and holding a hearing, denied relief. The Court of Appeals reversed, holding that respondent was entitled to a transcript in order to assist him in preparing a motion under § 2255. The court concluded that 28 U.S.C. § 753(f), which provides for a free transcript for indigent prisoners asserting a claim under § 2255 if the trial judge certifies that the asserted claim is "not frivolous" and that the transcript is "needed to decide the issue," does not prohibit courts from requiring the government to supply an indigent prisoner with a free transcript before he files a § 2255 motion. By so ruling the court felt that it was unnecessary to hold § 753(f) unconstitutional.

Held: The judgment is reversed. Pp. 426 U. S. 320-329; 426 U. S. 329-330.

511 F.2d 1116, reversed.

MR. JUSTICE REHNQUIST, joined by MR. CHIEF JUSTICE BURGER MR. JUSTICE STEWART, and MR. JUSTICE POWELL, concluded:

1. Section 753(f) does not violate Art. I, § 9, cl. 2, by constituting a suspension of the writ of habeas corpus. The right to a free transcript is not a necessary concomitant of the writ, which operated until 1944 with no provision at all for free transcripts for indigents. If Congress thus could have limited the writ directly without "suspending" it, Congress may do so indirectly. Pp. 426 U. S. 322-323. chanrobles.com-red

Page 426 U. S. 318

2. Nor does § 753(f) violate the Due Process Clause of the Fifth Amendment and respondent's right to "equal protection," since respondent, to whom the transcript was available had he chosen to appeal his conviction, and remained available on the conditions set forth in § 753, had an adequate opportunity to attack his conviction. Pp. 426 U. S. 323-328.

(a) The Due Process Clause does not establish a right of appeal, and § 753(f)'s conditions are not "so arbitrary and unreasonable . . . as to require their invalidation," Douglas v. California, 372 U. S. 353, 372 U. S. 365 (Harlan, J., dissenting). Pp. 426 U. S. 323-324.

(b) Though those statutory conditions place an indigent in a position somewhat less advantageous than that of a person of means, the equal protection component of the Fifth Amendment's Due Process Clause does not guarantee absolute equality, the conditions of § 753(f) providing an adequate access to procedures for review of the conviction of an indigent, who, like respondent, chose to forgo his opportunity for a direct appeal with its attendant free transcript. Pp. 426 U. S. 324-328.

MR. JUSTICE BLACKMUN concluded that § 753(f) afforded respondent a fair and adequate opportunity to present his claims effectively in this collateral proceeding, and that it is not necessary to consider the constitutional significance of what respondent might have done at the time he could have directly appealed his conviction. Pp. 426 U. S. 329-330.

REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J.,and STEWART and POWELL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 426 U. S. 329. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 426 U. S. 330. STEVENS, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 426 U. S. 334. chanrobles.com-red

Page 426 U. S. 319