FERNANDEZ v. U.S. No. 90-5369 Non-Argument Calendar.
941 F.2d 1488 (1991)
Fernando FERNANDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
United States Court of Appeals, Eleventh Circuit.
September 18, 1991.
Fernando Fernandez, Rochester, Minn., pro se.
Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Barbara L. Petras, Linda C. Hertz, Harriett R. Galvin, Asst. U.S. Attys., West Palm Beach, Fla., for respondent-appellee.
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
BIRCH, Circuit Judge:
Appellant Fernando Fernandez ("Fernandez") was convicted on racketeering charges in the United States District Court for the Southern District of Florida ("the district court") and was sentenced to twelve years in prison. Fernandez filed various pro se motions in the district court to reduce his sentence because of a severe heart condition. The motions were made pursuant to Federal Rule of Criminal Procedure 35(b) ("Rule 35(b)"), 18 U.S.C. § 4205(g) ("section 4205(g)"), 28 U.S.C. § 2255 ("section 2255"), and the eighth amendment's prohibition against cruel and unusual punishment. The district court rejected Fernandez's motions for lack of jurisdiction. We AFFIRM the rulings of the district court.
After a bench trial, Fernandez was convicted of racketeering and racketeering conspiracy in violation of 18 U.S.C. §§ 1962(c) and (d) and conspiracies to import and distribute marijuana in violation of 21 U.S.C. §§ 963 and 846.
Before filing the motions at issue in this case, Fernandez filed several other motions based on his medical condition. He first moved for release pending appeal, stating that because his health problems were debilitating he would be unable to flee the jurisdiction. While awaiting a hearing on the first motion, Fernandez filed a second motion to prevent his transfer from the Metropolitan Correctional Center in Miami, Florida to the Federal Correctional Institution in Ashland, Kentucky, claiming that the trip could be dangerous because of his heart problems.
After this court affirmed Fernandez's racketeering convictions and vacated his marijuana convictions on direct appeal, the district court had another opportunity to adjust Fernandez's sentence based on his medical problems. It declined to do so and affirmed the original twelve-year, concurrent prison terms. The district court did, however, acknowledge Fernandez's special medical needs by continuing to recommend that Fernandez be incarcerated at a medical facility within the federal penal system. Since his resentencing, Fernandez has been confined and treated at the Federal Medical Center in Rochester, Minnesota ("FMC-Rochester"). He also has received extensive treatment at the Mayo Clinic, also in Rochester.
In June 1989, Fernandez instituted a pro se collateral attack against his sentence. He first filed a "Motion to Reduce Sentence to Time Served Based Upon Compassion and Defendant's Medical Inability to Complete System" based on Rule 35(b). Fernandez's supplement to and memorandum in support of his Rule 35(b) motion also mention his efforts to convince the Bureau of Prisons to move the district court, pursuant to section 4205(g), to reduce Fernandez's minimum term to the time he had served. On September 21, 1989, the district court denied the Rule 35(b) motion, finding, without explanation, that the United States Parole Commission ("Parole Commission") had jurisdiction over Fernandez's motion. The district court also stated that relief under section 4205(g) was not appropriate because Fernandez was already eligible for parole. The district court did not discuss its jurisdiction under Rule 35(b). Although no direct relief was granted, the district court, noting the precariousness of Fernandez's medical condition, recommended that (1) the Parole Commission release Fernandez at the earliest possible date under appropriate restricted conditions, and (2) if the Commission would not release Fernandez, the Bureau of Prisons grant Fernandez a medical furlough once all the necessary requirements were met.
On December 15, 1989, Fernandez filed a section 2255 motion to vacate, set aside, or correct his sentence. Citing the district court's "fixed and limited jurisdiction," a United States magistrate found that section 2255 conferred no power on the district court to grant the requested relief and recommended that Fernandez's section
On January 2, 1990, Fernandez petitioned the district court for relief in a pleading styled "Motions." The pleading emphasized Fernandez's desperate medical condition and requested either release from prison or assistance in obtaining highly specialized treatment. On January 9, 1990, the district court denied the motion, citing its order of December 26, 1989.
On appeal, Fernandez asserts that the district court had jurisdiction to act on his section 2255 motion. He claims that his situation presents "`exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Hill v. United States,
Fernandez has suffered several heart attacks, some occurring during his incarceration, and continues to suffer from angina. He has undergone coronary bypass surgery and several angioplasties to alleviate his heart condition. The treatment has been only partially successful. In December 1988, the Federal Medical Officer treating Fernandez stated that Fernandez suffered from terminal coronary artery disease, creating a daily risk of a fatal heart attack. The physician predicted that Fernandez would not live more than two years. The physician also stated, according to Fernandez, that Fernandez could survive beyond two years only if he received a heart transplant.
Fernandez has made alternative requests based on his medical prognosis. First, Fernandez requests that the Bureau of Prisons either provide give him with highly specialized medical treatment, grant him a medical furlough to obtain treatment, or move the district court under section 4205(g) to reduce his sentence. In the alternative, Fernandez contends that the Parole Commission should grant him parole, as recommended by the Bureau of Prisons and the district court, or the district court should reduce his sentence to time served, suspend temporarily his sentence, or grant him relief pursuant to section 4205(g) or Rule 35(b). Finally, Fernandez seeks a recommendation from the United States Department of Justice pardon attorney that Fernandez be pardoned. Because his requests either have been denied or not acted upon, Fernandez asserts that he has been prevented from receiving life-saving medical treatment in violation of his eighth amendment right to be free from cruel and unusual punishment. The violations of this right constitute the "exceptional circumstances" upon which Fernandez claims the district court should have based jurisdiction.
Whether a district court has jurisdiction over a prisoner's claim under section 2255 is a question of law subject to plenary review. See Limon-Gonzalez v. United States,
A. Rule 35(b)
Fernandez initiated a collateral attack on his sentence with a Rule 35(b) motion to reduce his sentence to time served. Rule 35(b) was amended in 1986. Thus, we must determine which version of Rule 35(b) is applicable. A petitioner-initiated motion cannot be based on amended Rule 35(b). Fed.R.Crim.P. Rule 35(b) (1991).
On direct appeal, this court reversed two charges against Fernandez and remanded his case for resentencing. See Fernandez, 797 F.2d at 953. Thus, Fernandez's sentence did not constitute a final, appealable order for the purposes of Rule 35(b) until the district court resentenced Fernandez on October 24, 1988. See In re United States,
B. Section 4205(g) and the Bureau of Prisons
Fernandez claims that the district court should have granted his motion for relief pursuant to section 4205(g)
Thus, because the Bureau has not exercised its advisory authority under section 4205(g), the district court is precluded from reviewing the Bureau's inaction. Furthermore, review under section 4205(g) is not a matter of statutory or constitutional right. Id. at 616. "Section 4205(g) does not establish an expectation of parole or even a right to a motion for parole; nor does a constitutional right attach to the mere possibility of conditional liberty." Id. Accordingly, since the district court was precluded from reviewing the Bureau's inaction, and Fernandez's rights have not been violated, we affirm the district court's denial of Fernandez's section 4205(g) motion.
Fernandez also challenges the Bureau's refusal to grant his requested medical furlough. Neither medical nor penological justification exists for granting Fernandez a medical furlough based on the possibility of undergoing a heart transplant. Fernandez is aware that inmates requesting medical furloughs to receive transplants are required by the Bureau's reasonable guidelines to establish their ability to pay for the procedure and the willingness of a transplant program to consider accepting them. The record does not support Fernandez's claim that he filed the documentation necessary to fulfill the Bureau's requirements. Fernandez is responsible for ensuring that all documents buttressing his claims appear in the record. See Fed.R.App.P. 10(b)(2), Rules of the Court of Appeals for the Eleventh Circuit, Rule 10-1; United States v. Johnson,
C. The Eighth Amendment and Medical Treatment
Fernandez contends that the failures of the Parole Commission, the Bureau and the Pardon Attorney to grant relief are tantamount to a violation of the eighth amendment's prohibition against cruel and unusual punishment. Fernandez's various requests for relief have been attempts to obtain the medical care essential to his long-term survival which he cannot obtain through the Bureau. Fernandez cannot state an actionable eighth amendment claim, assuming, arguendo, that a basis for jurisdiction exists, unless he can demonstrate that the treatment he has received falls below "minimal civilized" levels or is the result of a prison official's culpable state of mind. See Wilson v. Seiter, ___ U.S. ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
An inmate's entitlement to medical treatment "reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards" is undisputed. United States
The record demonstrates that Fernandez's medical condition has not been treated with deliberate indifference. Fernandez has been incarcerated at FMC-Rochester since November 1988. During his time he has received treatment at the world-renowned Mayo Clinic and has undergone several specialized procedures, including angioplasty. Fernandez's doctor has written letters to various prison authorities concerning the life-threatening nature of Fernandez's condition, resulting in Fernandez's freedom from prison work duties. Fernandez's condition continues to be monitored at FMC-Rochester and is maintained by medication. In addition, two wardens have advised the Parole Commission of Fernandez's medical condition and requested consideration of an early parole date.
Furthermore, "[t]he appropriate Eleventh Circuit relief from prison conditions that violate the Eighth Amendment ... is to require the discontinuance of any improper practices, or to require correction of any condition causing cruel and unusual punishment." Gomez v. United States,
D. Section 2255 and the Parole Commission
The district court has denied Fernandez's motion to vacate or set aside his sentence pursuant to section 2255. Section 2255 provides a statutory means by which federal prisoners may obtain habeas corpus review of their sentences. United States v. Jordan,
Hill, 368 U.S. at 426-27, 82 S.Ct. at 470 (quoting 28 U.S.C. § 2255). However, sentences imposed within the statutory limits are insulated from section 2255 review. Kett v. United States,
Fernandez also challenges the Parole Commission's repeated denial of his requests for parole. However, actions of the Parole Commission may be challenged only in habeas corpus proceedings initiated pursuant to 28 U.S.C. § 2241. Hajduk v. United States,
E. Pardon Attorney
Fernandez's final challenge is to the inaction of the Department of Justice pardon attorney. However, Fernandez's concerns about the inactivity of the pardon attorney were not raised before the district court. Because "well-settled procedure ... restricts this [c]ourt to a review of issues presented to the district court [,]" we cannot review the pardon attorney's inaction. Stephens v. Zant,
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