Opinion
3:04-CV-0186-K
March 5, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq. Parties: Petitioner is presently detained at the Dallas County Jail. Respondent is Dallas County Sheriff Jim Bowles. The court issued process in this case.
Although Petitioner relies on 28 U.S.C. § 2254(a) as the jurisdictional basis for this action, (see Pet. at 1), the court considers his petition as brought pursuant to 28 U.S.C. § 2241. Section 2254 is reserved for habeas applications on "behalf of a person in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2254(a). Petitioner is not in custody within the meaning of § 2254; rather he is in custody by virtue of a Governor's Warrant authorizing his extradition to California. As such this action falls under § 2241(c)(3), which applies to those "in custody in violation of the Constitution or laws or treaties of the United States."
Statement of Case: hi this habeas corpus petition, Petitioner alleges his arrest, detention and extradition to the State of California "are without due process of law, and in violation of the Laws of the United States, Article 1, § 9, Cl. 2 of the Constitution of the United States, and the Fifth, Sixth, and Fourteenth Amendments. . . . " (Petition at 2). Specifically, he claims that the State knowingly failed to present him before a judge for eight days in violation of the federal twenty — four hour period, and the Texas statutory period of forty — eight hours. (Id. at 3-4). He further claims that the state court refused to accept the application for habeas corpus submitted by his sister on his behalf; failed to pass upon the jurisdictional questions and Constitutional violations raised in his state habeas; and failed to inquire into his indigent status and timely advise him of his right to counsel on appeal. (Id. at 4). In addition, he claims that the Governor's Warrant fails to make the factual determination required by 18 U.S.C. § 3182 that Petitioner is a fugitive, and that appointed counsel's failure to raise such issue during the habeas corpus proceeding amounted to constitutionally ineffective assistance of counsel. (Id. at 4-5). Lastly, he claims that his extradition is "based on documents wanting probable cause" in violation of his rights to due process. (Id. at 5).
On February 17, 2004, Petitioner filed an ex parte motion to stay the state court proceedings pending resolution of this habeas corpus action. Although process has been issued to Respondent, no response has been submitted as of the filing of this recommendation.
Procedural History: On May 8, 2002, Petitioner was held in civil contempt of court in a civil action commenced by the Securities and Exchange Commission (SEC) in the Northern District of Texas. See SEC v. Resource Dev. Int'l.. No. 3:02-CV-605-R (N.D. Tex.) (Doc. #104). Following his arrest in Washington State and his transfer to Texas in the custody of the U.S. Marshal, the SEC moved for an order to conditionally release Petitioner from federal custody to Texas state custody for extradition to California. On October 29, 2002, the District Court again found Petitioner in contempt of court; it also ordered Petitioner's release to Texas authorities for extradition to California, provided that Petitioner was returned to Seagoville for continued incarceration on the civil contempt order upon completion of the California criminal proceedings and any resulting sentence.Id. (doc. #218 and 219).
The petition in this case is similar to the one filed by David E. Edwards, who was also held in civil contempt in the SEC action. See Edwards v. Bowles, No. 3:03cv-2624-M (N.D. Tex.). On February 18, 2004, Magistrate Judge Ramirez recommended that the habeas petition challenging David Edwards' extradition be denied. See Edwards v. Bowles. 2004 WL 308036 (N.D. Tex.). The recommendation is presently pending before District Judge Lynn.
On November 13, 2002, the Governor of California signed a written demand for Petitioner's extradition. On November 20, 2002, the Governor of Texas issued the warrant at issue in this case. (Pet. at Exh. B). It alleged that the State of California had charged Petitioner with various crimes. On December 4, 2002, Dallas County Sheriff Deputies "arrested" Petitioner while in federal custody in Seagoville, Texas. (See Aff. of Petitioner ¶ 22, attached as Ex. 4 to Ex. C to Pet.).
Petitioner subsequently filed a state habeas corpus application pursuant to Texas Code of Criminal Procedure art. 51.13, § 10.(See State Pet., attached as Ex. 1 to Ex. C to Pet.). Following a hearing on March 26, 2003, a Texas state magistrate filed findings recommending denial of the state habeas application. The district court adopted the recommendation and Petitioner appealed. On August 18, 2003, the Fifth District Court of Appeals at Dallas affirmed the district court's order denying habeas relief. See Ex parte Edwards, 2003 WL 21962575, No. 05-03-00556-CR (Tex.App.-Dallas, Aug. 18, 2003) (attached as Ex. K to Pet.). Although Petitioner submitted a petition for discretionary review, the Texas Court of Criminal Appeals returned the same because it was "not properly before this Court under Rule 31.4, T.R.A.P." (See Letter, attached as Ex. Q to Pet.). Findings and Conclusions: The duty of a state to extradite an individual to another state is rooted in the Extradition Clause of the Constitution of the United States. Congress implemented this constitutional duty with the enactment of 18 U.S.C. § 3182.Michigan v. Doran. 439 U.S. 282, 287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521 (1978); Crumley v. Snead. 620 F.2d 481, 482-83 (5th Cir. 1980).
The return of the PDR by the Court of Criminal Appeals indicates Petitioner failed to exhaust his state remedies by fully completing the state process for adjudicating challenges to extradition proceedings.See Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987) (holding that federal court may require that petitioners under § 2241 exhaust state relief before seeking federal habeas review). Notwithstanding this failure to exhaust, the court can deny this habeas corpus petition on the merits, as it can with § 2254 petitions in accordance with 28 U.S.C. § 2254(b)(2). See Montez v. McKinna. 208 F.3d 862, 866 (10th Cir. 2000) (recognizing that it was proper to "follow the policy of § 2254(b)(2)" even when dealing with a habeas petition under 28 U.S.C. § 2241).
That clause provides:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Art. IV, § 2, cl. 2.
Extradition was intended to be "a summary and mandatory executive proceeding." Doran, 439 U.S. at 288; Crumely. 620 F.2d at 483. Its purpose is "to preclude any state from becoming a sanctuary for fugitives from justice of another state." Doran, 439 U.S. at 288. While the executive branch plays the primary role in extradition proceedings, the courts have a limited role too. Crumley. 620 F.2d at 483. The Supreme Court has long recognized that individuals have a federal right to challenge their extradition by writ of habeas corpus. Id. (citing Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885)). Habeas corpus jurisdiction, however, is narrow.
Once the governor has granted extradition, a court reviewing a petition for a writ of habeas corpus may decide only
(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petition is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.Doran, 439 U.S. at 289. "The Constitution does not contemplate that the asylum state will make a determination of guilt or innocence or conduct `the kind of preliminary inquiry traditionally intervening between the initial arrest and trial.'" McDonald v. Burrows, 731 F.2d 294, 296 (5th Cir. 1984) (quoting Doran. 439 U.S. at 288, 99 S.Ct, at 535).
The Fifth Court of Appeals considered the above factors in determining that extradition was proper in this case. Petitioner only challenges the last factor — i.e., that the Governor's warrant fails to make the factual determination that he is a fugitive. He premises his challenge on his absence from California at the time of the alleged California offenses.
Petitioner's extradition is premised upon § 6 of the Uniform Criminal Extradition Act (UCEA), which concerns interstate extradition of non — fugitives, not § 3 of the UCEA or § 3182 or the United States Constitution, which relate to the interstate extradition of fugitives. Section six of the UCEA permits the Governor of Texas to "surrender a person who is charged in the demanding State with committing an act in this State, or in a third State, intentionally resulting in a crime in the demanding State."Ex parte Foss. 492 S.W.2d 552, 553 (Tex.Crim.App. 1973).
Texas has adopted the UCEA. See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon 1979 and Supp. 2003).
Because Texas is seeking to extradite Petitioner under § 6, his status as a fugitive is irrelevant. Presence in the demanding State is not an issue when the Governor of Texas has exercised his discretion to extradite a non — fugitive under § 6 of the UCEA. See Tex. Code Crim. Proc. Ann. art. 51.13, § 6.
The Fifth Court of Appeals reached the same conclusion on state habeas review. See Ex Parte Edwards. 2003 WL 21962575, at * 4, 05-03-00556-CR (Tex.App.-Dallas Aug. 18, 2003).
Next Petitioner claims that his extradition is "based on documents wanting probable cause" in violation of his due process rights. (Pet. at 5). This issue falls outside the scope of habeas review. InDoran. 439 U.S. at 290, the Supreme Court held that "once the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state." In this case, the Governor of Texas has acted on a requisition for extradition from California based upon a judicial determination by a California judge that probable cause existed. (See Governor's Warrant and supporting documentation from California, attached as Ex. A and Ex. D to Petition). Therefore, this court cannot further consider the issue of probable cause.
Petitioner's remaining contentions — that the State knowingly failed to present him before a judge for eight days, that the State refused to accept a state habeas application submitted by his sister on his behalf, and that the habeas court failed to inquire into his indigent status and timely advise him of his right to counsel on appeal — lie outside the scope of habeas review. See Doran. 439 U.S. at 289; McDonald. 731 F.2d at 296-97. InMcDonald, the Fifth Circuit specifically held that an inquiry regarding a delay between arrest and the extradition hearing "is not appropriate in a habeas corpus hearing challenging . . . extradition."Id. at 297.
RECOMMENDATION
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be denied and that Petitioner's motion to stay his extradition be denied the same being moot.
A copy of this recommendation will be mailed to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten — day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.