to Petitioner's claim. The issue was directly raised on appeal, discussed and dismissed by the Second Circuit, and, for reasons outlined below, Petitioner was afforded effective assistance of counsel.
Petitioner's claim as to a deserved reduction in his sentencing score due to his medical condition is similarly without merit. Petitioner claims that he should have been afforded an opportunity to present evidence regarding his blindness and other infirmities prior to sentencing in order to obtain a reduction in his sentencing score. The Sentencing Guidelines do not provide for point reductions based on an offender's physical characteristics, though they do indicate that "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range." United States Sentencing Commission, Guidelines Manual § 5H1.4.
The pre-sentencing report contained information indicating Petitioner's medical condition, but the court chose not to depart from the applicable guidelines. While Petitioner correctly asserts that this court does have jurisdiction to correct errors in pre-sentence investigation reports, the alleged error would not have changed petitioner's score, and thus, the court did not err in its decision.
B. Ineffective counsel
Petitioner's claim that he received ineffective assistance of appellate counsel is also barred by Barton. The Second Circuit had denied Petitioner's request for new counsel, and specifically rejected Petitioner's claim of ineffective counsel, stating, "at both oral argument and in his written briefs, Porter provided effective representation in a case that was destined to lose." United States v. Phillips, 999 F.2d 536, slip op. at 4 (2d Cir. 1993). The court further gave Petitioner additional time to prepare his own pro se brief, which the court considered and rejected.
Since Petitioner's claim of ineffective counsel has already been considered fully on direct appeal, this court will not consider it under 28 U.S.C. § 2255.
C. Disparity in sentencing
Petitioner claims that, while his sentence may have been within the proper limits of the Federal Sentencing Guidelines, his blindness and other medical problems increase the severity of his punishment. It is thus alleged that this increased severity renders his punishment excessive in comparison with others convicted of similar crimes.
As discussed above, Petitioner's pre-sentencing investigative report informed the court of his medical condition. While § 5H1.4 of the Federal Sentencing Guidelines permits the court to reduce a sentence below applicable guidelines where a prisoner suffers extraordinary physical impairment, the Guidelines do not require such a departure. In light of the Petitioner's condition and the circumstances of his crime, the court had decided to sentence Petitioner within applicable guidelines. This court will not disturb that sentence.
D. Denial of access to the courts
Petitioner also alleges that his blindness and the lack of access to legal materials printed in Braille effectively deny him of his right to access the courts.
In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the Supreme Court held that a prisoner's right to access the courts, which is guaranteed by the Fourteenth Amendment, "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828, 97 S. Ct. at 1498 (emphasis added). The Second Circuit, in Spates v. Manson, 644 F.2d 80, 84-85 (2d Cir. 1981), emphasized the fact that either access to a law library or assistance from persons trained in the law is sufficient to guarantee the prisoner's right to access the courts.
This court accepts, for the purposes of this motion, that Petitioner's blindness effectively denied him access to the prison law library. Petitioner, however, has failed to allege that there is no legal assistance program for prisoners at his prison, and this court will not assume that to be the case. If the Petitioner is being denied access to persons trained in the law, he may raise a claim of denial of his right to access the courts in a separate motion. At the present moment, however, there is no basis for a claim that Petitioner's rights were violated.
Lastly, Petitioner's contention that his sentence should be deemed to have commenced at the time of his arraignment is frivolous. Thus, the Petitioner has failed to advance a legal basis for a grant of any part of the relief requested. Because this decision disposes of Petitioner's post-conviction motions, Petitioner's request for the appointment of counsel has been mooted.
For the reasons discussed herein, it is hereby
ORDERED, that Petitioner's motion under 28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.
Binghamton, New York
November 13, 1993
Thomas J. McAvoy
Chief U.S. District Judge
© 1992-2004 VersusLaw Inc.