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CALDWELL v. UNITED STATES

January 26, 1998

WILLIAM CALDWELL, Petitioner, against THE UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: BAER

 Hon. Harold Baer, Jr., District Judge:

 Petitioner William Caldwell ("Caldwell") moves this court pursuant to 28 U.S.C. § 2255. for a modification of his sentence so that he may serve the remainder of his prison sentence in home detention because he was diagnosed with leukemia after sentencing. For the reasons set forth below, Caldwell's motion is DENIED.

 I. Background

 On June 11, 1996, Caldwell, a former captain of the New York City Housing Police, was charged in a four count indictment stemming from his dealings with the New York City Parking Violations Bureau ("PVB"). The indictment charged that Caldwell defrauded the City of New York by obtaining improper dismissals and reductions on parking tickets issued to others. On September 19, 1996, Caldwell pleaded guilty to count one of the indictment (conspiracy to commit wire fraud). He was then sentenced to a term of imprisonment of one year and one day. *fn1" He began serving his sentence on November 7, 1996. Caldwell did not appeal his conviction or sentence. On February 5, 1997, Caldwell was diagnosed with stage II chronic lymphocytic leukemia.

 II. Discussion

 Caldwell moves to amend his sentence based on 28 U.S.C. § 2255, Fed. R. Crim. P. 33, the inherent power of the court, and the Eighth Amendment to the Constitution. Caldwell contends that his sentence should be amended on the ground that he was diagnosed with leukemia after sentencing. He argues that had the Court considered his leukemia at the time of sentencing, it would have granted him a downward departure under the Sentencing Guidelines.

 A. This Court Lacks Jurisdiction to Modify Caldwell's Sentence

 Pursuant to 18 U.S.C. § 3582(c), a court may modify a sentence in three limited circumstances, none of which are present here: (1) when the Bureau of Prisons moves the Court for such a reduction; (2) when the sentence was based on a guideline range that has since been lowered; and (3) when the court is so authorized by the Fed. R. Crim. P. 35.

 Rule 35(c) permits the sentencing court to correct its own sentences within seven days of the imposition of the sentence and only with respect to corrections that result from arithmetical, technical or other clear error. See Fed. R. Crim. P. 35(c). Because Caldwell has brought this motion well beyond seven days after the September 19 sentencing date, this court is barred from modifying discovered evidence, it should only be granted "if . . . the evidence is 'such that it would probably lead to an acquittal' . . . and would otherwise create a 'reasonable doubt that did not otherwise exist.'" United States v. Diaz, 922 F.2d 998, 1006 (2d Cir. 1990) (citations omitted), cert. denied, 500 U.S. 925, 114 L. Ed. 2d 119, 111 S. Ct. 2035 (1991). This Rule is inapplicable here since there was no trial in this case, as Caldwell pleaded guilty to the charges. Furthermore, even if Rule 33 were applicable to Caldwell, he does not claim that the newly discovered evidence (the diagnosis of leukemia) is exculpatory evidence such that it would probably lead to an acquittal. Caldwell cannot, therefore, find the relief he seeks pursuant to Fed. R. Crim. P. 33.

 3. Amendment of Sentence Pursuant to 28 U.S.C. § 2255

 A prisoner may move the sentencing court to vacate the sentence if, among other reasons, the sentence is subject to collateral attack. This Circuit has held that:

 
collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in complete miscarriage of justice.'

 Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996). In assessing a plaintiff's motion to vacate his sentence because the court imposed a fine that exceeded the applicable range established by the Sentencing Guidelines, the Graziano court held that "absent a complete miscarriage of justice, such claims will not be considered on ...


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