Perez v. Mims

ELIAS MENDOZA PEREZ, Plaintiff, v. MARGARET MIMS, Warden, Fresno County Jail, Defendant.

Case No. 1:16-cv-00447-DAD-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

June 13, 2016

FINDINGS AND RECOMMENDATION THAT THE PETITION FOR WRIT OF HABEAS CORPUS BE DENIED

I. INTRODUCTION

On May 15, 2015, a warrant issued for Petitioner's arrest pursuant to the government's complaint for provisional arrest under the extradition treaty between the United States and Mexico. (See United States of America v. Elias Mendoza Perez., No. 1:15-mj-00074-SKO, Docs. 1; 2.) The United States submitted a formal request for Petitioner's extradition based on a pending charge of homicide in the Mexican state of Michoacan. (See id., Docs. 30-31.) On February 29, 2016, a formal extradition hearing was held before United States Magistrate Judge Barbara M. McAuliffe. (Id., Doc. 37 (minute order).) On March 11, 2016, the Court issued a Certification of Extraditability and Order of Commitment based on a finding of probable cause and ordered Petitioner's extradition to Mexico. (Id., Doc. 38 (Certification).)

On March 31, 2016, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, thereby postponing the Secretary of State's decision on whether to transfer custody to the Government of Mexico until resolution of the instant motion. (Doc. 1 (Petition for Writ of Habeas Corpus) ("Petition").) Petitioner raises two claims in the Petition. He first contends that his extradition to Mexico would violate the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("the Convention"), 1465 U.N.T.S. 85, because he has a "credible fear" that he will be tortured and killed if he is extradited to Mexico. (Pet., p. 3.) He also contends that regardless of whether the Convention applies, an exception to extradition on "humanitarian grounds" should be applied to his specific case. (Id.) The United States of America and Respondent Margaret Mims, on behalf of the Government of Mexico, filed a response to the petition on May 2, 2016 (Doc. 11), and Petitioner filed a traverse on May 31, 2016. (Docs. 16-18.) It is Petitioner's petition for writ of habeas corpus which is pending before the Court.

II. LEGAL STANDARD

A. Extradition Proceedings

Extradition is "the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender." Terlinden v. Ames, 184 U.S. 270, 289 (1902). Extradition from the United States is governed by 18 U.S.C. § 3184, which "confers jurisdiction on any justice or judge of the United States or any authorized magistrate to conduct an extradition hearing under the relevant extradition treaty between the United States and the requesting nation." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000), overruled on other grounds by Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012).

"The extradition process is ordinarily initiated by a formal request from a foreign government to the Department of State, which along with the Department of Justice, evaluates whether the request is within the scope of the relevant extradition treaty between the United States and the requesting nation." Barapind v. Reno, 225 F.3d 1100, 1105 (9th Cir. 2000); Cornejo-Barreto, 218 F.3d at 1009. "Once approved, the United States Attorney for the judicial district where the person sought is located files a complaint in federal district court seeking an arrest warrant for the person sought." Barapind, 225 F.3d at 1105; Cornejo-Barreto, 218 F.3d at 1009.A hearing is then held before a federal judge to determine whether the offense is extraditable and probable cause exists to sustain the charge(s). Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005) ("Prasoprat"); Cornejo-Barreto, 218 F.3d at 1009. If these requirements are met, the magistrate judge must certify to the Secretary of State that the individual is extraditable. 18 U.S.C. § 3184.

The extradition magistrate judge "has no discretionary decision to make." Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997). Rather, "[i]f the evidence is sufficient to sustain the charge, the inquiring magistrate judge is required to certify the individual as extraditable to the Secretary of State and to issue a warrant." Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003). The Secretary of State then determines in his discretion whether the individual will be surrendered. Id. (citing United States v. Lui Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997); 18 U.S.C. § 3186).

B. Federal Review of Extradition Proceedings

The decision to certify a person as extraditable is not subject to direct appeal but may be challenged collaterally through habeas corpus review. Barapind, 400 F.3d at 748 n.5; Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1402 (9th Cir. 1988). "The scope of habeas review of an extradition order is severely limited." Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir. 1986). Specifically, the court may only consider the following: (1) whether the extradition judge had jurisdiction to conduct the proceeding; (2) whether the extradition court had jurisdiction over the individual sought; (3) whether the extradition treaty was in force; (4) whether the crime fell within the treaty's terms; (5) whether there was probable cause that the individual sought committed the crime; and (6) whether the crime was within the political offense exception. See Cornejo-Barreto, 218 F.3d at 1009-10; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999); Emami v. U.S. District Court, 834 F.2d 1444 (9th Cir. 1987); see also Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (stating that "habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and . . . whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty").

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III. DISCUSSION

Petitioner does not dispute that the Court correctly found the following: it has jurisdiction over the proceedings and over Petitioner; there is a valid extradition treaty in effect between the United States and the Government of Mexico and the treaty is in full force and effect; the offense for which Petitioner is sought, homicide, is an extraditable offense covered by the treaty between the United States and Mexico; and there is probable cause to believe that Petitioner, the same person identified in the extradition request from the Government of Mexico, committed the offense for which extradition is sought. (See generally Pet.; see also United States of America v. Elias Mendoza Perez, No. 1:15-mj-00074-SKO, Doc. 38.) Rather, Petitioner seeks to prevent his extradition because he fears being tortured and killed if extradited to Mexico, thus violating the Convention Against Torture, and seeks to carve out a first-time exception to extradition on "humanitarian grounds." (Pet., p. 3.)

For the reasons that follow, it is RECOMMENDED that Petitioner's petition for writ of habeas corpus be DENIED.

1. Petitioner's Claim that His Extradition Will Violate His Rights under the Convention Against Torture is Not Ripe for Review

The ripeness doctrine keeps federal courts from deciding cases prematurely and protects federal courts "from engaging in speculation or wasting their resources through the review of potential or abstract disputes." See United States v. Rivera, 613 F.3d 1046, 1049, 1050 (11th Cir. 2010). Petitioner contends that his extradition to Mexico would violate the Convention Against Torture because he "has a credible fear that he will be tortured and killed if he is extradited to Mexico." (Pet., p. 3.) However, a fugitive fearing torture does not have a ripe habeas claim unless and until the Secretary of State makes a final decision to surrender the fugitive to the requesting party. See Yacaman Meza v. U.S. Attorney General, 693 F.3d 1350, 1357 (11th Cir. 2012) ("until the Secretary decides to surrender [the fugitive], [the fugitive's] claim that he should not be extradited based on the Convention Against Torture is not ripe for our review"), cert. denied, 133 S. Ct. 933 (2013). See also Trinidad y Garcia, 683 F.3d at 960-61 (reviewing Secretary's decision to extradite for compliance with her statutory and regulatory obligations, including "bindingdomestic law" such as the Convention Against Torture); Prasoprat, 421 F.3d at 1016 n.5 ("the rule of non-inquiry does not prevent an extradite who fears torture upon surrender to the requesting government from petitioning for habeas corpus review of the Secretary of State's decision to extradite him") (emphasis added). Here, the Secretary has not yet determined whether to surrender Petitioner.

Petitioner's argument that the Convention Against Torture bars his extradition "is not ripe for adjudication . . . [because] it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted). Petitioner assumes the Secretary will surrender him to Mexican officials, but there is no evidence in the record that the Secretary has decided to comply with the extradition request. The Secretary may still find it more likely than not that Petitioner will be tortured in Mexico and refuse to surrender him, or he may find it less likely than not that Petitioner will be tortured in Mexico and choose to extradite him. See 22 C.F.R. § 95.2(b). Or the Secretary may decide to extradite Petitioner even if he decides he will be tortured. Cf. 18 U.S.C. § 3186. The Secretary may also decide that Petitioner will not face torture, but decide not to comply with the extradition request for other reasons. Cf. id. In the light of these...