Aydiner v. Giusto

401 F.Supp.2d 1129

Deniz Cinar AYDINER, Petitioner, v. Bernie GIUSTO, Multnomah County Sheriff and Custodian of Inverness Jail, Hardy Myers, Attorney General of the State of Oregon, Respondents.

No. CV 05-1535-MA.

United States District Court, D. Oregon.

November 29, 2005.

Stephen A. Houze, Dennis N. Balske, Portland, OR, for Petitioner.

Hardy Myers, Attorney General, Youlee Yim You, Douglas Y.S. Park, Senior Assistant Attorneys General, Department of Justice, Salem, OR, for Respondent Hardy Myers.

Agnes Sowle, County Attorney, for Multnomah County, Oregon, Portland, OR, for Respondent Bernie Giusto.

OPINION AND ORDER

MARSH, District Judge.

Petitioner, a pre-trial detainee at the Multnomah County Jail, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2241(c)(3). Petitioner is charged with multiple counts of aggravated murder, kidnaping in the second degree, sexual abuse in the first degree, attempted rape in the first degree, sodomy in the first degree, and burglary in the first degree. The aggravated murder counts carry the potential of the death penalty. Petitioner is scheduled to stand trial on February 27, 2006, in Multnomah County Circuit Court.

Currently before the court are petitioner's habeas corpus petition, motion for stay of state court proceedings, and motion for expedited evidentiary hearing. For the reasons set forth below, I abstain from exercising jurisdiction over this proceeding.

BACKGROUND

The following facts are undisputed. On May 29, 2001, Catherine Johnson was sexually assaulted and murdered. On or about February 5, 2003, Portland Police detectives obtained a DNA sample from petitioner, a Turkish citizen. Petitioner subsequently returned to Turkey.

On March 26, 2003, petitioner attempted to unlawfully re-enter the United States to join his wife, an American citizen. He was denied re-entry because he had overstayed a previous visa. Based upon his attempted re-entry, and because petitioner previously overstayed his visa for an extended period of time, he faced being barred from the United States for three to ten years. From March until late December, 2003, petitioner and his wife had ongoing contacts with the United States Embassy in Athens in an effort to obtain a visa for petitioner's return to the United States as a spouse of a United States citizen.

On June 3, 2003, Portland Police detectives received a report from the Oregon State Police Crime Lab indicating that petitioner's DNA samples were consistent with the DNA samples obtained at the crime scene. On June 4, 2003, Portland Police and Multnomah County Chief Deputy District Attorney Norman Frink determined that petitioner was in Istanbul, Turkey. Mr. Frink communicated with Department of Homeland Security (DHS) officials concerning petitioner's immigration status. He was advised that petitioner and his wife were making efforts to obtain petitioner's re-entry into the United States. The Portland Police, Mr. Frink, and DHS officials began monitoring the whereabouts of petitioner.

On November 7, 2003, a warrant was issued for petitioner's arrest. The warrant was kept under seal and was not entered into local, national, or international law enforcement databases. Turkish officials were not notified of the warrant.

On November 10, 2003, the Multnomah County District Attorney sent a letter to the Office of International Affairs of the Department of Homeland Security requesting that the Director grant petitioner "silent parole" which would permit petitioner to reenter the United States.¹ In December, 2003, petitioner was advised by a staff officer at the United States Embassy in Ankara, Turkey, that he had been granted a waiver to re-enter the United States.

Petitioner purchased an airline ticket and sent a copy to the United States Embassy. Petitioner subsequently received his passport and a 3-day visa. Petitioner was advised that his visa would be extended upon his arrival in the United States. Unbeknownst to petitioner, federal immigration officials lodged a detainer for petitioner's removal from the United States after his arrest, prosecution, and service of any sentence.

On January 16, 2004, petitioner returned to the United States. Upon his arrival, he was arrested and taken into custody. Petitioner was indicted on January 27, 2004, for the murder and sexual assault of Catherine Johnson, and re-indicted on March 5, 2004, to add three additional burglary counts.

On June 1, 2005, petitioner moved the state trial court to dismiss the charges on the basis that the prosecution violated the United States-Turkey Extradition Treaty in securing petitioner's presence in the United States. In support of his motion, petitioner sought to offer the testimony of seven DHS employees and three City of Portland Police Officers. The state trial judge denied the motion and declined to take testimony. Petitioner sought a writ of mandamus to compel the trial judge to permit petitioner to make an offer of proof, or to dismiss the prosecution for lack of personal jurisdiction. The Oregon Supreme Court summarily denied the petition.

On October 4, 2005, petitioner filed the instant proceeding, alleging that the prosecution's manipulation of the immigration process (1) violated the United States-Turkey Extradition Treaty; (2) violated petitioner's right to due process and to be free from cruel and unusual punishment; and (3) was undertaken in bad faith. Petitioner seeks a writ of habeas corpus directing the state court to dismiss the criminal prosecution pending against him or grant such other relief to which he may be entitled.

Respondent moves the court to abstain from exercising jurisdiction over this proceeding or, in the alternative, to deny the habeas petition on the merits.

DISCUSSION

Pursuant to 28 U.S.C. § 2241(c)(3), this court has habeas corpus jurisdiction to consider a state prisoner's pre-trial claim that he "is in custody in violation of the Constitution or laws or treaties of the United States". Stow v. Murashige, 389 F.3d 880, 886-87 (9th Cir.2004). However, principles of comity and federalism require this court to abstain from deciding such a claim unless the prisoner demonstrates that (1) he has exhausted available state judicial remedies; and (2) "special circumstances" warrant federal intervention. Braden v. 30th Judicial Cir. Ct. of Kentucky, 410 U.S. 484, 489, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). This policy of equitable restraint "is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights." Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975); Younger v. Harris, 401 U.S. 37, 44-45, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

"Special circumstances" warranting federal intervention in a pending state prosecution exist "[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown." Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Kugler, 421 U.S. at 124, 95 S.Ct. 1524; Carden, 626 F.2d at 84; see also Baffert v. California Horse Racing Bd., 332 F.3d 613, 621 (9th Cir.), cert. denied, 540 U.S. 1075, 124 S.Ct. 938, 157 L.Ed.2d 746 (2003).

Petitioner contends that federal intervention is warranted in the instant proceeding because (1) the prosecutor engaged in bad faith conduct in securing petitioner's presence in the United States unlawfully; and (2) the circumstances of this case are akin to the recognized double jeopardy exception to abstention.

I. The Bad Faith Exception.

Petitioner does not contend that the pending state prosecution was undertaken by state officials without hope of obtaining a valid conviction for murder. Rather, petitioner argues that the prosecutor's bad faith is evidenced by the fact that the prosecutor "was faced with a situation without a `reasonable expectation of obtaining' a death sentence." Petitioner explains:

This case has been driven from the outset by the state's desire to impose the death penalty on Mr. Aydiner. Newspaper reports disclose that Mr. Frink believed Mr. Aydiner was protected from eligibility for a death sentence by his Turkish citizenship and residence in Turkey. Mr. Frink believed that the only way he could obtain a death sentence, prohibited by Turkish law, was by keeping the aggravated murder indictment secret from Mr. Aydiner and Turkish officials, deceiving Mr. Aydiner into believing he could enter and remain in the United States pursuant to a visa that would supposedly be issued upon his return, using false information to obtain a copy of Mr. Aydiner's travel schedule, and leaving Mr. Aydiner to believe he had obtained a visa sanction waiver on his own, rather than by a concerted action taken by state and federal officials at Mr. Frink's direction.

Petitioner's Reply at 4.

As noted above, the U.S. Supreme Court has held that the "bad faith" exception to abstention "generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction." Perez, 401 U.S. at 85, 91 S.Ct. 674 (emphasis added); Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. 1524; Carden, 626 F.2d at 84. Many courts, however, have examined the "overlap" between the concepts of "bad faith" and "harassment" and have applied the bad faith exception in the face of evidence rising to the level of probable cause. For example, in Phelps v. Hamilton, the Tenth Circuit held:

The terms "bad faith" and "to harass" may have slightly different meanings, although they will, to a large degree, overlap. Ordinarily, a bad faith prosecution will not be predicated upon probable cause. However, if prosecutions are brought for the...