Fernandez v. U.S.

• Decision Date: 18 September 1991
• Docket Number: No. 90-5369,90-5369
• Citation: 941 F.2d 1488
• Parties: Fernando FERNANDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1488

941 F.2d 1488

Fernando FERNANDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 90-5369

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Sept. 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.

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

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.

I. BACKGROUND

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. ¹ The district court sentenced Fernandez to two concurrent, twelve-year prison terms for the racketeering convictions followed by probation for each marijuana conviction. Aware of Fernandez's heart condition, the district court recommended that Fernandez be confined at the Federal Correctional Institution in Lexington, Kentucky, one of the principal medical/correctional facilities in the federal prison system.

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. ² The district court denied both motions. Although it had jurisdiction, the district court also denied Fernandez's motion for a reduced sentence. ³

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. ⁴

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 2255 motion be denied. On March 16, 1990, the district court adopted the magistrate's report and denied the motion.

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.

II. DISCUSSION

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, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)). Fernandez's "exceptional circumstances" are based on his medical condition.

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, 499 F.2d 936, 937 (5th Cir.1974) (careful scrutiny of the record and applicable law did not reveal grounds for relief under section 2255). The findings of fact made by the district court in its § 2255 order will be reversed only if clearly erroneous. United States v. Deal, 678 F.2d 1062, 1065 (11th Cir.1982). Pro se pleadings are held to "a less stringent standard than pleadings drafted by attorneys." Byrd v. Stewart, 811 F.2d 554, 555 (11th Cir.1987). We therefore liberally construe Fernandez's assertions to discern whether jurisdiction to consider his motion can be founded on a legally justifiable base. See United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1629, 113 L.Ed.2d 725 (1991). (Federal courts are obliged to "look behind the label" of a pro se motion to determine if a cognizable remedy is available).

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). ⁵ However, if the petitioner's offense was committed prior to November 1, 1987, old Rule 35(b) is available to support petitioner-initiated motions. Fed.R.Crim.P. Rule 35(b) (1979). ⁶ Fernandez's offenses were committed in 1983. Thus, old Rule 35(b) applies. ⁷

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, 898 F.2d 1485, 1487 (11th Cir.1990) (per curiam). ("Only when the defendant is sentenced on all counts on which he is convicted ... does the order...