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    United States v. Olusegun Alaga, Lekan Yusuf and Akintunde Oke, 99 F.3d 400, 2d Cir. (1995)

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    This document is a court order from the United States Court of Appeals for the Second Circuit affirming a district court's denial of a motion by Olusegun Alaga for production of documents to prepare an anticipated petition under Section 2255. The appeals court found that Alaga was not entitled to discovery at this stage since he had not yet filed a Section 2255 petition and was considered a "party." Additionally, Alaga already possessed transcripts that could form the basis of a Section 2255 petition and was not being denied access to courts. The district court did not abuse its discretion in denying Alaga's request given that his attorneys stated they had provided all relevant documents.

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    United States v. Olusegun Alaga, Lekan Yusuf and Akintunde Oke, 99 F.3d 400, 2d Cir. (1995)

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    This document is a court order from the United States Court of Appeals for the Second Circuit affirming a district court's denial of a motion by Olusegun Alaga for production of documents to prepare an anticipated petition under Section 2255. The appeals court found that Alaga was not entitled to discovery at this stage since he had not yet filed a Section 2255 petition and was considered a "party." Additionally, Alaga already possessed transcripts that could form the basis of a Section 2255 petition and was not being denied access to courts. The district court did not abuse its discretion in denying Alaga's request given that his attorneys stated they had provided all relevant documents.

    Original Description:

    Filed: 1995-12-08 Precedential Status: Non-Precedential Citations: 99 F.3d 400 Docket: 95-1284

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    This document is a court order from the United States Court of Appeals for the Second Circuit affirming a district court's denial of a motion by Olusegun Alaga for production of documents to prepare an anticipated petition under Section 2255. The appeals court found that Alaga was not entitled to discovery at this stage since he had not yet filed a Section 2255 petition and was considered a "party." Additionally, Alaga already possessed transcripts that could form the basis of a Section 2255 petition and was not being denied access to courts. The district court did not abuse its discretion in denying Alaga's request given that his attorneys stated they had provided all relevant documents.

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    56 views4 pages

    United States v. Olusegun Alaga, Lekan Yusuf and Akintunde Oke, 99 F.3d 400, 2d Cir. (1995)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Second Circuit affirming a district court's denial of a motion by Olusegun Alaga for production of documents to prepare an anticipated petition under Section 2255. The appeals court found that Alaga was not entitled to discovery at this stage since he had not yet filed a Section 2255 petition and was considered a "party." Additionally, Alaga already possessed transcripts that could form the basis of a Section 2255 petition and was not being denied access to courts. The district court did not abuse its discretion in denying Alaga's request given that his attorneys stated they had provided all relevant documents.

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    of 4

    99 F.

    3d 400

    NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED


    AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED
    TO THE ATTENTION OF THE COURT IN A SUBSEQUENT
    STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
    CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR
    RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.
    UNITED STATES of America, Appellee,
    v.
    Olusegun ALAGA, Defendant-Appellant,
    Lekan YUSUF and Akintunde Oke, Defendants.
    No. 95-1284.

    United States Court of Appeals, Second Circuit.


    Dec. 8, 1995.
    1

    APPEARING FOR APPELLANT: OLUSEGUN ALAGA, pro se.

    APPEARING FOR APPELLEE: ZACHARY W. CARTER, United States


    Attorney, Eastern District of New York.

    E.D.N.Y.

    AFFIRMED.

    This cause came on to be heard on the transcript of record from the United
    States District Court for the Eastern District of New York and was taken on
    submission.

    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,


    ADJUDGED AND DECREED that the order of the District Court is hereby
    affirmed.

    Olusegun Alaga appeals from an order of the United States District Court for
    the Eastern District of New York (Wexler, J.), entered April 17, 1995, denying
    his motion for the production of documents to be used to prepare an anticipated

    petition under section 2255. We affirm the order of the district court.
    8

    On September 17, 1992, Alaga was sentenced to 135 months imprisonment,


    three years supervised release, and a $50 special assessment, following his
    conviction for conspiracy to possess with intent to distribute heroin, in violation
    of 21 U.S.C. 846. Alaga's conviction and sentence were affirmed by this
    Court. United States v. Alaga, 995 F.2d 380 (2d Cir.1993).

    On March 16, 1994, Alaga by letter asked the district court to compel his
    former attorneys to produce transcripts of Alaga's conversations with a codefendant, which Alaga claimed were exculpatory. Alaga stated that he needed
    the transcripts to bring a section 2255 petition claiming ineffective assistance of
    counsel.

    10

    On March 23, 1994, the district court sent Alaga a letter stating that his staff
    had contacted Alaga's trial attorney, who claimed he had sent Alaga the
    transcripts and other documents.

    11

    On March 28, 1994, Alaga's trial attorney sent Alaga a letter advising that he
    had turned over all materials from Alaga's case to his new counsel, Steve
    Zissou. On June 15, 1994, Zissou sent Alaga a letter enclosing the tape
    recordings, stating that he had reviewed the rest of the file and found "nothing
    else of value that [Alaga] [did] not already have." On July 10, 1994, Alaga sent
    Zissou a letter stating that the correctional facility had returned the tapes to
    Zissou, "because the institution does not allow tape recordings in." Alaga
    further stated that he had requested not only the tape transcripts, but the entire
    case file, including all documents, court orders, "or other subject matter that
    may cross reference all materials pertaining to me."

    12

    On July 11, 1994, Alaga wrote to the district court, requesting "all documents
    relating to my case." On July 20, 1994, Zissou wrote to the court, explaining
    that Alaga had requested all of the documents generated in his case, and that
    Zissou had explained that this was unnecessary and would prove costly, at
    Alaga's expense. Zissou requested guidance on whether he was obligated to
    comply with Alaga's demands. Zissou sent a copy of this letter to Alaga.

    13

    On August 2, 1994, Alaga wrote again to Zissou, acknowledging receipt of one


    set of translated transcripts and alleging that they were different from the
    original transcripts supplied by the government at trial. On August 8, 1994,
    Zissou sent Alaga a letter stating that he was not in possession of the original
    translated copy of the audio tapes, trial stipulations, and minutes of a co-

    defendant's hearing. Zissou explained how these items could be obtained.


    14

    On October 27, 1994, Alaga again wrote to the district court, stating that he still
    had not received the original translated transcripts from the Government's
    original discovery. On November 18, 1994, the court issued an order denying
    his request that his former attorneys turn over all relevant records to him. The
    district court stated that, because counsel had advised the court that they had
    already turned over all relevant records to which Alaga was entitled, it would
    not conduct a hearing into the matter unless Alaga advised the court, "with
    particularity, what additional records he requires."

    15

    On November 30, 1994, Alaga moved for production of original transcripts of


    audiocassette tapes, some of which had been used at his trial. On April 17,
    1995, the district court summarily denied Alaga's request and his petition for a
    hearing on document production.

    16

    On appeal, Alaga claims that (1) he is entitled to records pertaining to his case;
    and (2) the district court abused its discretion in denying his request for
    production and for not stating the reasons for denial.

    17

    At bottom, Alaga's motion appears to be a motion for discovery of documents


    for purposes of an anticipated section 2255 petition. Rule 6(a) of the Rules
    Governing Proceedings in the United States District Courts Under 28 U.S.C.
    2255 permits a "party" to invoke discovery processes, but Alaga has not yet
    filed a section 2255 petition and become a party.

    18

    Alaga claims that denial of this motion constitutes denial of his right to access
    to the courts. Alaga already possesses a set of transcripts on which he could
    bring a section 2255 petition and subsequently request discovery. Thus, he is
    not being denied access to the courts under Bounds v. Smith, 430 U.S. 817
    (1977). Alaga is not requesting a trial transcript that would be otherwise
    available for a fee, making his reference to Britt v. North Carolina, 404 U.S.
    226 (1971), inapposite. Finally, Alaga does not request materials comprehended
    by 28 U.S.C. 753, and therefore United States v. MacCollum, 426 U.S. 317
    (1976), does not apply.

    19

    The denial of Alaga's motion was not an abuse of discretion. See United States
    v. Sliker, 751 F.2d 477, 491 (2d Cir.1984) (denial of motion for trial transcript
    reviewed for abuse of discretion), cert. denied, 470 U.S. 1058, 471 U.S. 1137
    (1985). The district court initially contacted the trial attorney to find out
    whether he had provided the requested materials, and ascertained that Alaga's

    files had been forwarded to Alaga's new counsel. Alaga's new counsel in turn
    advised the district court that he had forwarded the materials he had to Alaga,
    along with an explanation of how Alaga could obtain documents he did not
    possess.
    20

    Alaga acknowledged receipt of the tape transcripts, although he claims that the
    transcript he received differed from the original in some unparticularized ways.
    In short, Alaga has presented no facts that would suggest the district court
    abused its discretion. We affirm the order of the district court.

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