Opinion
98-CR-1058-01 (ILG)
June 27, 2000
MEMORANDUM AND ORDER
The petitioner seeks leave to proceed in forma pauperis for the purpose of filing a motion pursuant to 28 U.S.C. § 2255. She also requests a transcript of the proceeding at which she was sentenced, to be furnished and paid for by the government.
Her application to proceed in forma pauperis is granted. Her application for a copy of the transcript is denied.
In her affidavit in support of her petition, Ms. Goldberg provides a brief background of the facts in her case and a coherent presentation of the bases for her request. Very briefly, Ms. Goldberg was indicted for conspiring to kidnap and for kidnaping a severely disabled six year old boy from his home in Brooklyn and transporting him across state lines. She pleaded guilty to the conspiracy charge pursuant to a written plea agreement by the terms of which the government agreed to move to dismiss the substantive kidnaping charge at the time of sentencing. She was sentenced to a term of imprisonment of 57 months to be followed by five years of supervised release. The government's motion to dismiss the remaining count was granted.
At the time of sentence, the petitioner moved for a downward departure based upon the following factors: aberrant behavior; diminished capacity; extreme vulnerability and post-arrest rehabilitation. Those factors are recited again in her affidavit in support of this motion. The Court found unpersuasive her downward departure request and sentenced her as indicated.
The ground upon which she intends to base her § 2255 motion is that "there is a substantial risk that the court misapplied the guidelines in this case or, alternatively, misinterpreted its departure authority under the volitional prong of diminished capacity" (Aff. p. 4, ¶ 17) in the light of the amendment to USSO 5K2.13 that became effective on November 1, 1998. This Court's awareness of its authority to downwardly depart from the guidelines has previously been addressed in United States v. Ekhator, 853 F. Supp. 630, 632 (E.D.N.Y. 1994). suffice it to say, it has been aware of that authority since the inception of the Quidelines in 1987. In addition, the minutes of the sentencing proceeding makes plain the Court's awareness of the November 1, 1998 amendment to § 5K2.13, and a considered application of it. Tr. at p. 19.
Fees for transcripts furnished in proceedings brought under 28 U.S.C. § 2255 by persons permitted to sue in forma pauperis are paid by the United States if the trial judge certifies that the suit is not frivolous and the transcript is needed to decide the issue presented by the suit. See 28 U.S.C. § 753 (t). The petitioner has not yet commenced her § 2255 proceeding but has clearly stated the bases upon which she will. For the reasons given, that proceeding would be frivolous and her motion for a copy of the transcript is denied.
SO ORDERED.