Opinion
CRIMINAL NO. 99-81 (00-560) SECTION "L".
April 13, 2000.
ORDER AND REASONS
Before the Court is the petition of Lester Boykins ("Boykins") for writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, seeking a reduction of the sentence imposed by this Court on petitioner's plea of guilty to a bill of information charging him with using or carrying a firearm during a drug trafficking offense in violation of Title 18, United States Code, Section 924(c)(1). For the following reasons, petitioner's motion is DENIED.
I. BACKGROUND
On April 13, 1999 the petitioner pled guilty to a bill of information charging him with using or carrying a firearm during a drug trafficking offense in violation of Title 18, United States Code, Section 924(c)(1). This Court subsequently sentenced Boykins to a 60 month term of imprisonment and three years of supervised release. Upon Boykins' request through counsel, the Court accelerated the sentencing date because the defendant sought to be transferred to a federal medical facility to receive medical care as soon as possible.
On August 6, 1999, the Court received a letter from the defendant expressing concerns about his medical condition. The Court ordered that Boykins be given a medical examination and/or treatment as soon as possible related to his complaints of terminal illness, dialysis, hernia, calcium deposits, and skin rash. On October 5, 1999, Boykins was incarcerated at the Medical Center for Federal Prisoners ("FMC") in Springfield, Missouri where he currently receives free medical care.
On February 24, 2000, Boykins filed a motion to vacate his sentence pursuant to Title 18, United States Code, Section 2255. He does not contest his guilt, the constitutionality of his legal proceedings, or the adequacy of his medical care. Boykins instead seeks relief from his sentence because he feels that his attorney did not adequately communicate to the Court the nature and extent of his medical condition. Specifically, Boykins feels that his court appointed counsel did not bring to the Court's attention his HIV status, bone deterioration, as well as his other chronic illnesses that would have affected the sentence he received.
The Court ordered the government to respond to Boykins' motion, which it filed on March 21, 2000. The government explains that Boykins fails to demonstrate that his attorney represented him ineffectively and that she did make the Court aware his medical problems. Even if Boykins' attorney did not specifically inform the Court about all of his health needs, the government contends that Boykins was not prejudiced because he received a sentence mandated by statute. The government further argues that Boykins' claim is procedurally barred because he failed to raise these issues on appeal.
II. ANALYSIS
Boykins may receive relief under Title 28, United States Code, Section 2255 only for transgressions of his constitutional rights and for a narrow range of injuries that could have not been raised on direct appeal and would result, if permitted, in a miscarriage of justice. See United States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992). Boykins has not challenged his sentence on appeal and has not explained why he failed to do so or how he has been prejudiced by failing to appeal. Accordingly, Boykins' claim is procedurally barred because he may not raise an issue on collateral review before demonstrating cause for his procedural default and actual prejudice as a result. See United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (citing United States v. Frady, 456 U.S. 152, 166 (1982)).
Even if Boykins were not procedurally barred from raising his claim, he fails to present a valid claim for ineffectiveness of counsel. To demonstrate ineffective assistance of counsel, Boykins must show that his attorney failed to perform according to reasonable professional standards which resulted in causing him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Boykins argues that he received an improper sentence because his attorney did not sufficiently inform the Court of his medical condition.
Contrary to Boykins' suggestion, however, the Court was adequately aware of Boykins' medical problems. Boykins' attorney filed a motion to expedite sentencing because of Boykins' health condition. Moreover, the presentence investigation report detailed for the Court the various ailments from which Boykins suffers. The Court sentenced Boykins to the period of incarceration required by statute and found that Boykins' ailing health did not warrant a downward departure in his sentence. See United States v. Winters, 105 F.3d 200, 208 (5 th Cir. 1997) (finding downward departure not warranted where defendant suffered from chronic inflammation of multiple organs); United States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991), cert. denied 503 U.S. 1009 (1992) (finding downward departure not warranted where defendant suffered from cancer in remission, hypertension, a fused right ankle, an amputated leg, and drug dependency); see also United States v. Hamilton, 1993 WL 70226 (E.D. La. Mar. 10, 1993) (finding that infection with AIDS does not raise a constitutional issue upon which a habeas petition alone may be granted). Thus, the Court was aware of Boykins' medical condition and sentenced him appropriately according to statute.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the petition of Lester Boykins for writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, to vacate his sentence is hereby DENIED.
Done this 10 day of April, 2000 New Orleans, Louisiana