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
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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
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
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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