899 F.2d 1124 (11th Cir. 1990), 89-6199, Gomez v. United States

Docket Nº:89-6199.
Citation:899 F.2d 1124
Party Name:Leonardo Botero GOMEZ, Petitioner-Appellee. v. UNITED STATES of America, Respondent-Appellant.
Case Date:April 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1124

899 F.2d 1124 (11th Cir. 1990)

Leonardo Botero GOMEZ, Petitioner-Appellee.

v.

UNITED STATES of America, Respondent-Appellant.

No. 89-6199.

United States Court of Appeals, Eleventh Circuit

April 30, 1990

Dexter Lehtinen, U.S. Atty., Miami, Florida, Paul Pelletier, Asst. U.S. Atty., Miami, Fla., for respondent-appellant.

Benson B. Weintraub, Benedict P. Kuehne, Miami, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Page 1125

Before CLARK, Circuit Judge, RONEY [*], Senior Circuit Judge, and ATKINS [**], Senior U.S. District Judge.

RONEY, Senior Circuit Judge:

The United States Government appeals an order of the district court granting bail to a convicted criminal, who is an AIDS victim, pending consideration of his petition for writ of habeas corpus. Because the release affords the defendant more relief temporarily than he would be entitled to even if he prevails in his habeas corpus action, we reverse.

Convicted of a controlled substance violation under 21 U.S.C.A. Sec. 841(a)(1), defendant Leonardo Botero Gomez was given the statutory minimum sentence of 10 years imprisonment. Gomez has AIDS (Stage IV Acquired Immune Deficiency Syndrome). In his petition for writ of habeas corpus, he alleges that the medical treatment he is receiving in custody is inadequate, and therefore unconstitutional. With a life expectancy of two years, Gomez also alleges that the ten-year sentence amounts to a life sentence, which is disproportionate to the crime committed, and is therefore a violation of the constitutional prohibition against cruel and unusual punishment.

After defendant was sentenced, execution of the sentence was suspended pending court determination that the Bureau of Prisons (BOP) has the ability to treat AIDS prisoners within its facilities. Meanwhile, the court ordered that the defendant remain in its jurisdiction.

Petitioner was confined to the Metropolitan Correctional Center (MCC) in Dade County, Florida, operated by the U.S. Bureau of Prisons. Because MCC is an infirmary and not a hospital, Gomez was referred to Jackson Memorial Hospital to receive treatment not available at MCC. Referrals were made on the basis of regularly scheduled visits and in response to symptomatic problems. Zidovudine, the drug commonly known as AZT, which inhibits growth of the AIDS virus, was administered to Gomez through Jackson Memorial.

A prisoner seeking release pending habeas corpus can be granted bail under two sets of circumstances: first, he must demonstrate a likelihood of success on the merits of a substantial constitutional claim; second, extraordinary and exceptional circumstances must exist which make the grant of bail necessary to preserve the effectiveness of the habeas corpus relief sought. Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974).

At an evidentiary hearing, a United States magistrate found the requirements of the Calley test satisfied. Gomez was then released from custody by the district court under electronic surveillance on a $25,000 ten percent bond and a $150,000 personal surety bond. In addition to affirming the magistrate's order allowing bail, the district court also ordered that Gomez not be transferred to another prison facility outside of the court's jurisdiction prior to final determination of the pending habeas corpus petition.

The district court apparently overlooked the fact that even if Gomez prevails on his habeas corpus petition, he would not be entitled to be released from prison.

Prison authorities are required by statute to provide for the safekeeping and care of all persons charged with or convicted of offenses against the United States. 18 U.S.C.A. Sec. 4042(2). Deliberate indifference to a prisoner's medical needs is proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The district court found that the treatment of Stage IV AIDS at MCC is inadequate. Such a finding, however, does not permit release of the petitioner...

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