Petitioner and a codefendant were convicted of murder and given
life sentences. Petitioner's codefendant received a free copy of
the transcript for preparing his appeal, but, contrary to
California court rules, would not share it with petitioner, who was
then loaned a copy by the State for preparing his appeal. The
convictions were affirmed. Several years later petitioner, having
fruitlessly sought the transcript from his codefendant, and having
been denied a free copy of his own by the California courts in
connection with collateral proceedings in the state courts, brought
this habeas corpus proceeding alleging his indigency and contending
that California's failure to provide him a free transcript violated
the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. The District Court granted the writ. The Court of
Appeals reversed, holding that the trial court failed to find that
petitioner claimed error in the proceedings leading to his
conviction that warranted post-conviction relief and that
petitioner was not entitled to a transcript "to enable him to comb
the record in the hope of discovering some flaw."
1. Petitioner may not attack the state court rules, which
concern only the furnishing of transcripts for purposes of direct
appeal, since petitioner had the transcript for that purpose and
did not complain that his having it only on loan impaired its use
on appeal. Pp. 396 U. S.
2. This Court need not decide whether the Constitution requires
a State to furnish indigent prisoners with free copies of trial
transcripts to aid in preparing petitions for collateral relief
unless and until it appears that petitioner cannot again borrow a
copy from the State, or procure one from his codefendant or other
custodian; or show that it would be significantly more advantageous
for him to own, rather than borrow a copy. Pp. 396 U. S.
District Court judgment and 390 F.2d 632, vacated and
Page 396 U. S. 283
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In 1961, petitioner and one Pollard appealed to the California
District Court of Appeal from murder convictions upon which the
California Superior Court had sentenced each of them to life
imprisonment. California Rules of Court 35(c) and 10(c) required
that the appellants be furnished with one free copy of the trial
transcript to be shared by them for the purposes of the appeal.
Pollard received the free copy, but would not share it with
petitioner. However, the State Attorney General loaned petitioner's
appellate counsel his copy. The District Court of Appeal affirmed
the convictions, 194 Cal. App.
, 15 Cal. Rptr. 214 (1961).
Five years later, in 1966, petitioner wished to pursue a
collateral remedy and sought the transcript from Pollard, but
Pollard "refuse[d] to communicate on the subject." Petitioner's
inquiry of his appellate lawyer elicited the response that the copy
borrowed from the Attorney General had been returned. Petitioner
then turned to the California courts seeking, however, not
temporary use of a copy, but to be furnished with a copy of his
own. He applied initially to the trial court and was advised that
the original of the transcript was in the District Court of Appeal.
He thereupon filed a motion for a copy in the District
Page 396 U. S. 284
Court of Appeal, which motion was denied on the ground that the
Court of Appeal had only the original, and was not equipped to
duplicate copies. He next filed a proceeding in the California
Supreme Court and was advised by the clerk of that court that he
must proceed in "the court possessed of the original record."
] He renewed his
application to the District Court of Appeal, which again denied it
on the ground that that court had "no facility for reproducing
records"; but this time, petitioner was advised that the original
record would be made available for copying at his expense.
Petitioner then abandoned further efforts in the California
In 1967, he filed the instant federal habeas corpus proceeding
in the District Court for the Northern District of California. His
petition alleged his indigency and the single claim that
California's refusal to furnish him without cost his own copy of
the transcript denied him due process and equal protection of the
laws in violation of the Fourteenth Amendment. The District Court
after hearing granted the writ and ordered California either to
provide the free transcript or to release the petitioner. The
District Court stated in an unreported opinion,
"although there is no square holding on the precise question of
the right to a transcript in preparing a petition for a writ of
habeas corpus, rather than an appeal, the logic of the Supreme
Court holdings compels a finding that such a right exists.
The Court of Appeals for the
Page 396 U. S. 285
Ninth Circuit reversed on the ground that
"the trial court failed to find that Wade was claiming that
there was any error which occurred in the proceedings which led to
his conviction which would warrant the granting of post-conviction
relief. . . . Wade was not entitled to demand a transcript merely
to enable him to comb the record in the hope of discovering some
390 F.2d 632, 634 (1968). We granted certiorari. 393 U.S. 1079
The California Court Rules require that a free transcript be
furnished to convicted persons separately tried in felony cases and
to each codefendant where one or more codefendants are under
sentence of death. [Footnote 3
Petitioner argues that, in furnishing only one copy to be shared by
codefendants where none received the death penalty California
interposes an unconstitutional barrier to the use of its criminal
appellate proceedings, and that the
Page 396 U. S. 286
distinction made by the Rules, without more, establishes that
California has denied him equal protection of the laws. But
petitioner will not be heard to attack the Rules, since they
concern only the furnishing of transcripts for purposes of direct
appeal and he and his appellate counsel, in fact, had the use on
his direct appeal of the transcript borrowed from the State
Attorney General, and did not complain that the terms on which it
was made available in any way impaired its effective use on the
appeal. See United States v. Raines, 362 U. S.
, 362 U. S. 21
Petitioner argues that, in any event, contrary to the Court of
Appeals, the District Court was correct in holding that, because
"it may not be possible to pinpoint . . . alleged errors in the
absence of a transcript," petitioner was entitled to a transcript
for use in petitioning for habeas corpus even though he did not
specify what errors he claimed in his conviction. To pass on this
contention at this time would necessitate our decision whether
there are circumstances in which the Constitution requires that a
State furnish an indigent state prisoner free of cost a trial
transcript to aid him to prepare a petition for collateral relief.
This is a question of first impression which need not be reached at
this stage of the case. Notwithstanding petitioner's success in
borrowing a copy of the transcript in connection with his direct
appeal, his insistence in the subsequent proceedings in both the
California and federal courts is that he has a constitutional right
to a copy of his own. We think consideration of that contention
should be postponed until it appears that petitioner cannot again
borrow a copy from the state authorities, or successfully apply to
the California courts to direct his codefendant, Pollard, or some
other custodian of a copy to make a copy available to him.
Rule 10(c). Without such a showing, or a showing that
having his own copy would
Page 396 U. S. 287
be significantly more advantageous than obtaining the use of
someone else's copy, the District Court should not have reached the
merits of petitioner's claim. We think, however, that the case
should be retained on the District Court's docket pending
petitioner's efforts to obtain access to the original or a copy.
Upon being advised by the parties that petitioner has been provided
such access, the court should dismiss the action. We vacate the
judgments of both the Court of Appeals and the District Court and
remand to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
Petitioner styled his application to the Supreme Court of
California "A Petition for a Writ of Habeas Corpus," but the only
relief he requested was issuance of the record in his case or an
order to the District Court of Appeal to furnish him with the
record. He did not request an order releasing him from custody.
The District Court cited Smith v. Bennett, 365 U.
(1961) (habeas corpus filing fee); Griffin v.
Illinois, 351 U. S. 12
(transcript on direct appeal); Lane v. Brown, 372 U.
(1963) (transcript on post-conviction appeal);
Long v. District Court, 385 U. S. 192
(1966) (transcript on post-conviction appeal). See also Roberts
v. LaVallee, 389 U. S. 40
(1967); Gardner v. California, 393 U.
Rules 35(c) and 10(c) provide in pertinent part:
"As soon as both the clerk's and reporter's transcripts are
completed, the clerk shall deliver one copy to the defendant or his
attorney and one copy to the district attorney. . . . When there
are two or more appealing defendants in a case in which a judgment
of death has been rendered against one or more of the defendants,
the clerk shall deliver a copy of both transcripts to each such
defendant or his attorney. . . . Where there are two or more
appealing defendants represented by separate counsel in a case in
which judgment of death has not been rendered against any
defendant, the appellant's copy shall be made available for the use
of the appellants in the manner provided in Rule 10."
"The additional copy of the record required by these rules shall
be made available for the use of the parties to the appeal in such
manner as the judge, or the clerk under his direction, shall
prescribe; provided that the parties may stipulate to its use, and
in such event only the original need be filed with the clerk of the
MR. JUSTICE BLACK, dissenting.
Petitioner and one Joe Pollard were convicted of murder in 1960
and sentenced to life imprisonment. Pollard received a trial
transcript, and when he refused to turn it over to petitioner for
his use in preparing an appeal, the State Attorney General's Office
loaned a copy to petitioner's appellate counsel. The California
District Court of Appeal affirmed in 1961. 194 Cal.
App. 2d 830
, 15 Cal. Rptr. 214. Five years later, in 1966,
petitioner tried in the state courts to obtain a trial transcript.
Failing there, he filed a petition in the United States District
Court for the Northern District of California in 1967 asking to be
released because of the State's refusal to provide him a copy of
the transcript. The United States District Court held petitioner
was entitled to a copy of the trial record, but the United States
Court of Appeals reversed, holding that, since petitioner did not
allege any trial error which might warrant post-conviction relief,
he was "not entitled to demand a transcript merely to enable him to
comb the record in the hope of discovering some flaw." 390 F.2d
632, 634 (1968).
Page 396 U. S. 288
This Court today says the petitioner thus raises a
constitutional question of first impression,
"whether there are circumstances in which the Constitution
requires that a State furnish an indigent state prisoner free of
cost a trial transcript to aid him to prepare a petition for
at 396 U. S. 286
It may be conceivable that the Constitution would, under certain
special circumstances, impose this duty on the State when it has
such a record in its possession, but I cannot agree that anything
shown in this record presents those special circumstances.
It is now over nine years since this case was tried. At
petitioner's request, a trial record was made available for him to
take an appeal; eight years ago, he took that appeal and lost.
There certainly is no constitutional requirement that a State must
continue to supply convicted defendants trial records to enable
them to raise the same old challenges to their convictions again
and again and again. There is not a word or a suggestion in the
whole record in this case that demonstrates or even intimates that
any new events have occurred since petitioner's 1961 appeal which
could under any possible circumstances justify even a shadowy
argument that petitioner was not guilty of the murder he was
convicted of having committed. Although more than eight years have
passed since that appeal, I would join in granting relief to this
petitioner if he had shown, or even given any reason to believe,
that new circumstances now indicate he was wrongfully convicted of
a crime of which he was not guilty. See Fay v. Noia,
372 U. S. 391
(1963); cf. Kaufman v. United States, 394 U.
, 394 U. S. 231
(1969) (BLACK, J., dissenting); Harris v. Nelson,
394 U. S. 286
394 U. S. 301
(1969) (BLACK, J., dissenting). But we have no such case here.
Petitioner has not raised any claims which indicate in the
slightest that he has been convicted of a crime of which he is
innocent. At the
Page 396 U. S. 289
most he has asserted a desire to review the record to find some
technical legal point which he can argue to a court as a basis for
release from confinement. He has already had one chance to make
such arguments on direct appeal, and he lost that battle. I do not
think he needs a transcript to know whether he was convicted
erroneously or whether some new circumstances have arisen that now
show a fatal constitutional error in the prior proceedings. In any
event, he has not yet based his request for a transcript on any
indication of such a need. In such circumstances, I see no reason
whatsoever for the State tc have to obtain a copy for him. This
case is but another of the multitudinous instances in which courts
are asked interminably to hash and rehash points that have already
been determined after full deliberation and review. One considered
appeal is enough, in the absence of factors which show a
possibility that a substantial injustice has been inflicted on the
Nothing in this petitioner's application for certiorari or his
briefs and arguments gave any indication that he might be entitled
to post-conviction relief, and there is thus no reason why this
Court should even have reviewed his case. I would dismiss this writ
as being improvidently granted.