SCHWARTZ, District Judge
Petitioner Williams filed this petition for a Writ of Habeas Corpus on November 25, 1975, seeking relief from a State conviction in the courts of the State of Delaware. The gravamen of his complaint is that his conviction in State court was based on evidence seized in violation of rights secured to him by the Fourth and Fourteenth Amendments to the United States Constitution. Petitioner also filed a motion for Leave to Proceed In Forma Pauperis. After the Court had granted that motion, relatives of the petitioner retained counsel to represent the petitioner in this proceeding.
Counsel for the petitioner has filed a motion seeking a free transcript of the State court hearing on the petitioner's (then defendant) motion to suppress evidence alleged to have been gathered illegally. In addition, the State of Delaware has filed a motion to dismiss the petitioner's writ on the basis of the United States Supreme Court's opinion in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 44 U.S.L.W. 5313 (1976). This opinion addresses both motions.
At the outset it should be noted that this case does not concern an indigent State prisoner on direct appeal of his criminal conviction, where the transcript may be a matter of right without any showing of the merit of his appeal. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956); but cf. United States ex rel. Cleveland v. Warden, New Jersey State Prison, 544 F.2d 1200 (3d Cir. 1976). Moreover, the Supreme Court specifically has reserved decision on the issue of whether an indigent habeas petitioner is entitled to a free transcript as of course simply in order that he may search for error. Wade v. Wilson, 396 U.S. 282, 286, 24 L. Ed. 2d 470, 90 S. Ct. 501 (1970). In a subsequent decision, however, the Supreme Court did rule that a federal prisoner seeking relief under 28 U.S.C. § 2255 was not entitled to a free transcript as a matter of right. United States v. MacCollum, 426 U.S. 317, 96 S. Ct. 2086, 48 L. Ed. 2d 666 (1976). Although MacCollum does not control in the instant case, it contains dictum that reasonable limitations on the right to a free transcript do not constitute a suspension of the writ of habeas corpus. The Court expressly referred to the near unanimous holdings by the courts of appeals that an indigent habeas petitioner is not entitled to a free transcript in order that he simply may search for error. See, e.g., Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971); Hines v. Baker, 422 F.2d 1002 (10th Cir. 1970).
Counsel for the petitioner has stated two grounds to justify the order of a free transcript of the state suppression hearing. First, he argues that an indigent petitioner is entitled to a free transcript as a matter of right. This argument is unconvincing both factually and legally.
The numerous cases cited by the Supreme Court in the MacCollum case reflect the fact that no court of appeals has yet adopted the position of the petitioner. Petitioner has not articulated nor can I rationalize any justification for a rule of law which would bestow upon petitioner a constitutional right to a transcript for purposes of searching for error of constitutional dimension which would result in grant of a habeas writ. It is held that where an indigent petitioner is seeking only the exceptional collateral relief of habeas corpus there must be some minimal showing on the merits before the Court will order him supplied with a free transcript. In the matter sub judice it is unnecessary to decide exactly what showing would be required, since petitioner expressly has declined to make any showing at all.
Petitioner's counsel has urged that it is impossible for him to make the necessary showing without having examined the transcript. This may be true, but it is inaccurate to say that counsel had no access to the transcript of the State suppression hearing. Counsel for the petitioner had been informed that a copy of the transcript was and is available in the office of the Clerk of this Court 1" and has been asked repeatedly whether this procedure is inadequate for purposes of substantiating in some way the merit of petitioner's claim. The response has been that this procedure is inadequate, but no reasons have ever been offered other than inconvenience. The availability of the Court's copy may be somewhat inconvenient to prepare for a full hearing on the merits of the claim, but it is more than adequate for purposes of determining whether the required minimal showing can be made so as to justify the Court ordering a free copy be given to the petitioner to prepare for such a full hearing.
The second ground advanced to justify the ordering of a free transcript relates directly to the defendant's motion to dismiss. Petitioner's habeas claim is based on alleged violations of his Fourth and Fourteenth Amendment rights by the defendant. The State of Delaware has moved to dismiss the case in light of the Supreme Court's opinion in Stone v. Powell, supra. The Powell case held that where a prisoner has been granted an opportunity for a full and fair litigation of a Fourth Amendment claim in a State court proceeding, a State prisoner may not be granted habeas corpus relief on the ground that evidence obtained through an unconstitutional search was introduced at his trial. Counsel for the petitioner contends that he is unable without a copy of the transcript to determine whether his client was afforded an opportunity for a full and fair hearing. This is a deceptively plausible and attractive argument 2" which, if accepted, would vitiate the requirement of some minimal showing of merit. However, its attractiveness fades when one recognizes counsel for the petitioner could have used the transcript available in the Clerk's office to substantiate in some way the naked allegation that the standards of Stone v. Powell, supra, were not met.
At bottom, petitioner's second ground is no different from the first; that is, that the petitioner has a right to a free transcript without any showing of the merit of his claim. For the reasons stated above, the motion for a free transcript will be denied. 3"
The second motion before the Court is defendant's motion to dismiss the case. As noted above, counsel for the petitioner has responded to the defendant's motion to dismiss by asserting that he cannot show the inapplicability of Stone v. Powell, supra, without a copy of the State hearing transcript. Having disposed of the merits of that contention above and faced with counsel for the petitioner's position that if given additional time, he would continue to argue the same point without examining the 200 page suppression transcript in the Clerk's office, this Court finds that the Supreme Court's holding in Stone v. Powell, supra, is dispositive of the instant case. 4" Therefore, defendant's motion to dismiss will be granted.
1. The Clerk's office may not be the best place to examine a transcript. On the other hand, given the purpose and circumstances, it can hardly be characterized as inadequate. The Clerk's office has a separate room which attorneys may use to examine Court records in private. It is also noted counsel's office is less than three blocks from the Courthouse and that counsel was advised of record of the availability of the transcript in the Clerk's office at a prior hearing held on May 11, 1976.
2. See Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971).
3. Because of the above disposition of the motion for a free transcript, it is unnecessary for the Court to determine whether petitioner is in fact indigent. This issue arose when private counsel for the petitioner was retained after the Court had granted petitioner's motion for Leave to Proceed In Forma Pauperis, based on affidavits submitted by the petitioner stating that neither he nor his family possessed sufficient funds to pay the costs of this case. In like vein, the Court need not consider issues arising from the fact that petitioner's State court trial counsel had obtained a copy of the transcript.
4. Petitioner's argument that Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 44 U.S.L.W. 5313 (1976), should not be applied retroactively is similarly without merit. Petitioner relies on Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224 (1968), as authority for the proposition that a holding in a case should not be applied retroactively when the holding constitutes "a sharp break in the line of earlier authority. . . ." 392 U.S. at 499. The citation is inapposite, for in Hanover the Court looked first to reliance before examining whether the case cited by defendants represented a break with earlier authority. In the instant case, petitioner cannot plausibly contend that his conduct reflected a reliance on Kaufman v. United States, 394 U.S. 217, 22 L. Ed. 2d 227, 89 S. Ct. 1068 (1969). Moreover, the Supreme Court rejected a somewhat related contention by the petitioners in Stone v. Powell, supra, that the decision should be applied against them only prospectively. Stone v. Powell, supra at n.38.