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United States District Court, S.D. California

December 28, 2005.

JOSEPH O'CONNER, Petitioner,
RICARDO LUNA, Warden, Metropolitan Correctional Center, Respondent.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge



Petitioner, a federal prisoner appearing through counsel, has filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging the ruling by the Honorable Leo S. Papas, United States Magistrate Judge, denying petitioner's request for bail during extradition proceedings. The matter has been fully briefed by the parties. After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court DENIES the petition in its entirety.


  The Central Court NR5 in Madrid, Spain issued a warrant for petitioner's arrest on drug trafficking charges on June 22, 2005. See Gov't Resp., Exh. B. Petitioner was arrested on October 25, 2005, while on board a vessel docked in San Diego. On October 26, 2005, Judge Papas signed a complaint and warrant for petitioner's arrest and detention pending extradition to Spain. See id., Exh. A. Petitioner was arraigned on the complaint before Judge Papas on October 27, 2005. A bail hearing was set, at petitioner's request, for November 1, 2005 but subsequently continued until November 8, 2005. The parties submitted various briefs in support and in opposition to petitioner's request for bail. Judge Papas, on November 8, 2005, denied petitioner's bail request, finding no special circumstances exist warranting bail. At a November 22, 2005 status hearing, Judge Papas denied petitioner's renewed bail request. The formal extradition hearing is scheduled to be conducted before Judge Papas on January 5, 2006.

  The instant petition was filed on November 14, 2005. A briefing schedule was set by this Court, requiring the matter to be fully briefed by December 16, 2005. Petitioner's request to expedite the briefing scheduled was denied on November 22, 2005. The government filed a response to the petition on December 2, 2005. Petitioner filed his traverse on December 8, 2005.


  In the instant petition, petitioner challenges Judge Papas' order denying bail pending extradition proceedings. Petitioner contends his detention without bail is violative of the Fourth Amendment to the United States Constitution because the arrest warrant was obtained without probable cause. See Pet. at 1, 6. Petitioner further contends that Judge Papas' order violates the Fifth Amendment Due Process Clause because Judge Papas did not find petitioner a flight risk or a danger to the community. See id. at 2, 7.

  1. Legal Standard

  Direct appeal is not available in extradition proceedings; habeas review under 28 U.S.C. § 2241 is an extraditee's sole remedy from a magistrate judge's extradition order, including orders concerning bail. See In re Extradition of Seigmund, 887 F.Supp. 1383, 1384 (D.Nev. 1995) (citing In re Extradition of Kraiselburd, 786 F.2d 1395, 1396 (9th Cir. 1986)). Habeas review of a magistrate judge's order concerning bail pending extradition requires that the Court determine "`whether there were reasonable grounds for the [Magistrate Judge's] findings ordering no bail.'" Seigmund, 887 F.Supp. at 1385 (quoting In re Extradition of Russell, 647 F.Supp. 1044, 1047 (S.D.Tex. 1986)). 2. Analysis

  The government first contends that petitioner's allegations concerning lack of probable cause are premature, and thus not ripe for review, because the magistrate judge has not yet made a probable cause determination.*fn1 Resp. at 3-4. The government also contends that Judge Papas' order did not violate due process under the Fifth Amendment. Id. at 6-13.

  A. Ripeness (Fourth Amendment Violation)

  The government initially contends that petitioner's probable cause arguments are not ripe for review because the magistrate judge has yet to make a probable cause determination. Resp. at 3 (citing Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000) (the magistrate judge holds an extradition hearing in order to determine "whether 1) the crime is extraditable; and 2) there is probable cause to sustain the charge.")). The government explains that, once these criteria are met, the magistrate judge then must certify the individual as extraditable to the Secretary of State, who determines whether to surrender the individual to the requesting country. Id. (citing Blaxland v. Commonwealth Dir. of Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003)). Thus, the government argues that the issue of whether there was probable cause to arrest petitioner is not ripe for review. Id. at 4. Petitioner contends that his claims are ripe for review because he challenges the constitutionality of his provisional arrest, not the final extradition order which has yet to be issued. Trav. at 2 (citing Caltagirone v. Grant, 629 F.2d 739, 749-50 (2d Cir. 1980) (expressing grave concerns about the constitutionality of a provisional arrest pending extradition without a showing of probable cause)). This Court disagrees with both parties.

  This Court notes that petitioner does not, in the instant petition, seek to quash the provisional arrest warrant based on lack of probable cause but, instead, seeks review of the magistrate judge's no bail order. As previously stated, habeas review of a magistrate judge's no bail order in extradition proceedings is limited to "`whether there were reasonable grounds for the [Magistrate Judge's] findings ordering no bail,'" Siegmund, 887 F.Supp. at 1384. Based on that limited review, this Court, therefore, finds it inappropriate to address petitioner's arguments concerning whether the provisional arrest warrant was issued in violation of the Fourth Amendment on the grounds that it lacked probable cause or was in contravention of the treaty.

  B. Due Process (Fifth Amendment Violation)

  Petitioner also contends that Judge Papas' reliance upon a "special circumstances" test in determining whether to grant bail violates due process. See Pet. at 7-8. Petitioner argues that, because Judge Papas did not find petitioner to be a flight risk or a danger to the community, his detention without bail is unconstitutional. Id. at 8. The government, in response, points out that petitioner's contention "ignores the well settled case law regarding the granting of bail in an extradition proceeding." Resp. at 6. The government contends that Judge Papas' use of the special circumstances test is the proper test to apply in an extradition case. Id. at 6-7.

  The government is correct. It is well settled that "[t]here is `a presumption against bail in an extradition case and only `special circumstances' will justify bail.'" Seigmund, 887 F.Supp. at 1385 (quoting Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989)). Therefore, this Court finds that Judge Papas' use of the special circumstances test in this extradition proceeding was proper. Because a finding that an extraditee is not a flight risk or danger to the community is not a special circumstance warranting bail pending extradition, Salerno, 878 F.2d at 317, this Court further finds Judge Papas' determination that no special circumstances exist to warrant bail, without a finding that petitioner presents a risk of flight or a danger to the community, was reasonable. Accordingly, petitioner's due process arguments fail. CONCLUSION AND ORDER

  Based on the foregoing, IT IS HEREBY ORDERED that the instant petition is DENIED in its entirety.


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