United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Rick Cusumano's
(“Petitioner”) “Motion for Reconsideration
in Supplying Petitioner with Trial Transcript of Detective
Fourtney's Testimony in September, 2018 Trial as Evidence
for Supplement to Habeas Corpus Claims” (ECF No. 43).
Petitioner requests that this Court order a court reporter to
provide the transcript of Detective Fourtney's testimony
from Petitioner's September 2018 retrial. Petitioner
asserts that he is entitled to a free copy of the trial
transcript as an indigent person. In the alternative,
Petitioner requests additional time to acquire the $203.00 to
pay for the transcript of Detective Fourtney's testimony.
Respondent has not filed a response and the time to do so has
passed. The parties have consented to the jurisdiction of the
undersigned pursuant to 28 U.S.C. § 636(c).
timely filed this habeas petition for relief pursuant to 28
U.S.C. § 2254 on January 25, 2017. (ECF No. 1) In the
instant habeas petition, Petitioner raised four grounds for
relief: (1) ineffective assistance of trial counsel for
failing to investigate and call Detective Fourtney; (2)
ineffective assistance of trial counsel for failing to object
to the victim's former husband's testimony; (3)
ineffective assistance of trial counsel for advising
Petitioner not to testify; and (4) ineffective assistance of
appellate counsel for failing to cite two Supreme Court
decisions in support of his double jeopardy claim. (ECF No.
noted above, Petitioner seeks a court order directing the
court reporter to produce the September 2018 trial transcript
of Detective Fourtney's testimony. It is useful to
briefly recap the procedural history of Petitioner's case
to understand the Court's resolution of this motion.
February 2010, Petitioner was charged in the Circuit Court of
St. Louis County with three felonies-two counts for
aggravated forcible rape (Counts I and II) and one count of
aggravated forcible sodomy (Count III) for a sexual assault
of a woman. Petitioner was eventually convicted on all
counts, he appealed his convictions, and the Missouri Court
of Appeals affirmed. See State v. Cusumano, 358
S.W.3d 137 (Mo.Ct.App. 2011). After losing his direct appeal,
Petitioner filed a Rule 29.15 motion for post-conviction
relief, alleging, in part, ineffective assistance of counsel
as to Counts I and III. His Rule 29.15 motion was initially
denied, but the Missouri Court of Appeals reversed that
denial and granted Petitioner a new trial on Counts I and
III. See Cusumano v. State, 494 S.W.3d 652
(Mo.Ct.App. 2016). In September 2018, Petitioner was retried
on Counts I and III and found not guilty. See State v.
Cusumano, No. 10SL-CR00041-02, available at
Court of St. Louis County Sept. 24, 2018).
has previously noted that the September 2018 retrial of
Counts I and III was not transcribed because Petitioner was
found not guilty and the state court record shows no trial
transcript was filed in that case. Id.
it is well-established that "the State must provide an
indigent defendant with a transcript of prior proceedings
when that transcript is needed for an effective defense or
appeal," Britt v. North Carolina, 404 U.S. 226,
227 (1971), it is unclear whether Petitioner has a
constitutional right to free transcripts for the purpose of
preparing a state collateral attack. See Wade v.
Wilson, 396 U.S. 282, 286 (1970) (declining to decide
whether the "Constitution requires a State furnish an
indigent state prisoner free cost a trial transcript to aid
him to prepare a petition for collateral relief").
Assuming he has such a right, Petitioner must show that the
transcript is needed. See Chavez v. Sigler, 438 F.2d
890, 894 (8th Cir. 1981) (requiring petitioner to show
"a reasonably compelling need for the specific
documentary evidence which he requests"). Furthermore,
“[a] district court has the power to order a free
transcript furnished [for an indigent] if it finds that the
‘suit … is not frivolous and that the transcript
is needed to decide the issue presented….'”
United States v. MacCollom, 426 U.S. 317, 325 (1976)
(plurality opinion) (quoting 28 U.S.C. § 753(f)).
undersigned finds that Petitioner has set forth specific
allegations concerning Detective Fourtney's testimony
impeaching the complaining witness's testimony, from
which the Court could conclude that the September 2018 trial
transcript is needed to decide the grounds presented in the
pending habeas petition before this Court. (ECF No. 19)
Furthermore, Respondent has elected not to respond to
Petitioner's motion. Although Respondent has already
provided Petitioner a copy of the January 3, 2011, trial
transcript, the undersigned finds that Petitioner should be
given a copy of the requested portions of the September 2018,
trial transcript as relevant to the issues he has raised
before this Court in his pending habeas petition.
IT IS HEREBY ORDERED that Petitioner Rick
Cusumano's “Motion for Reconsideration in Supplying
Petitioner with Trial Transcript of Detective Fourtney's
Testimony in September, 2018 Trial as Evidence for Supplement
to Habeas Corpus Claims” (ECF No. 43) is GRANTED.
IS FURTHER ORDERED that no later than October 23,
2019, Respondent shall order from Francis Lunatto, CCR, St.
Louis County Courts Building, Judicial Administration, Third
Floor, Attention: Francis Lunatto, CCR, Clayton, Mo., 63105,
a transcript of Detective Gary Fourtney's testimony from
the September 2018, trial.
IS FURTHER ORDERED that, upon receipt of the
transcript of Detective Fourtney's testimony from the
September 2018 trial, Respondent shall promptly ...