The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
[PROPOSED] ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
The petition for writ of habeas corpus is GRANTED for the reasons and on the conditions stated below.
BACKGROUND AND PROCEEDINGS
Petitioner Hedelito Trinidad y Garcia challenges the legality of his federal custody pending extradition to the Philippines. The present action is the third of three related cases in this court, namely, an extradition proceeding and two habeas petitions.*fn1
The extradition proceeding was initiated on December 18, 2003, when the United States Attorney filed a complaint seeking Petitioner's extradition to the Philippines on a charge of kidnaping for ransom and the court issued a bench warrant. [See United States v. Trinidad, Case No. M 03-2710.] Petitioner was arraigned in this court on October 8, 2004, and the federal public defender was appointed to represent him. On December 10, 2004, the case was re-docketed as Extradition of Trinidad, No. CV 04-10097-MMM(CW), and a formal request for extradition was filed. The matter was briefed extensively, and the magistrate judge held an evidentiary hearing (on May 19 and 24, 2005, with closing arguments on August 25, 2005).*fn2
In the extradition proceeding it was undisputed that this court had jurisdiction, that a valid treaty was in force, and that the charged offense was covered by the treaty. The parties disputed whether there was probable cause to believe Petitioner committed the charged offense. Petitioner also argued for denial of certification on humanitarian grounds under the United Nations Convention Against Torture (the "Torture Convention"). The magistrate judge found that, in an extradition proceeding, the court had no authority to deny certification on such grounds, and that such a claim was not ripe for judicial review unless and until the Secretary of State made a final decision to extradite Petitioner.
After considering evidentiary issues, the magistrate judge concluded that the minimum standard of probable cause had been met. The magistrate judge's Certification of Extraditability was filed September 7, 2007. In an order filed September 18, 2007, the magistrate judge stayed extradition until completion of habeas corpus proceedings in the district court.*fn3
On October 5, 2007, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, which was docketed as No. CV 07-6387-MMM. Petitioner challenged the certification, contending that the magistrate judge erred in admitting supplemental evidence; that, even with the supplemental evidence, the probable cause finding was not supported; and that, even if a probable cause finding was supported, Petitioner's extradition would violate federal law and the Torture Convention.
On December 20, 2007, Petitioner moved to stay the first habeas proceeding until the Secretary of State had reviewed his Torture Convention claim. In an order filed March 3, 2008, the court denied the motion to stay, finding that a Torture Convention claim would only be ripe for judicial review if the Secretary decided to extradite Petitioner, and that Petitioner could seek a stay of extradition, if necessary, once the district court decided the habeas petition. On April 15, 2008, Petitioner moved for reconsideration of the order denying a stay. In an order filed May 13, 2008, the court denied the motion, again finding the Torture Convention claim not ripe for review unless and until the Secretary decided to extradite Petitioner.
In an order filed July 16, 2008, the court denied Petitioner's first habeas petition, rejecting the evidentiary arguments and affirming the probable cause finding. The court also found, again, that the Torture Convention claim, if reviewable, would not be ripe until the Secretary had made a final decision to surrender Petitioner for extradition, and denied the first habeas petition without prejudice to asserting a Torture Convention claim in a second petition. On July 24, 2008, Petitioner waived his right to appeal the district court decision in the first habeas proceeding. On September 12, 2008, the Secretary of State issued a warrant to surrender Petitioner for extradition.*fn4 Petitioner then filed a request to stay extradition pending resolution of a second habeas petition. In orders filed September 29, 2008, the court granted the stay.
The present, second habeas proceeding was opened on November 24, 2008, as a petition for writ of habeas corpus under 28 U.S.C. § 2241, docketed as No. CV 08-7719-MMM(CW). (Petitioner's second habeas petition and other documents were originally filed in Case No. CV 07-6387, and were re-docketed under the new case number.) The second habeas petition challenges Petitioner's custody pending extradition to the Philippines under the Secretary of State's surrender warrant issued September 12, 2008. Petitioner contends that his extradition would violate the Torture Convention and federal law because there are substantial grounds to believe that he would be tortured if returned to the Philippines. Petitioner claims that the Secretary's decision to extradite him, in spite of his Torture Convention claim, was arbitrary in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq.*fn5
Respondent filed an application to dismiss the second petition for lack of jurisdiction, which the parties fully briefed. In the February 13, 2009 Report and Recommendation, the magistrate judge recommended that the application to dismiss the petition be denied and that respondent be ordered to answer Petitioner's APA claim on its merits. Respondent filed objections (docket no. 40), and a notice of supplemental authority (docket no. 47) to which Petitioner filed a response (docket no. 48). In an order filed May 15, 2009 (docket no. 46), the court adopted the Report and Recommendation, denied the motion to dismiss, ordered Respondent to file an answer addressing Petitioner's APA claim on its merits, directed Respondent to submit evidence from the administrative record (sufficient to enable the court to determine whether the Secretary acted arbitrarily, capriciously, in abuse of discretion, or in violation of law in deciding to extradite Petitioner), and stated that Respondent might raise any issues about the protection of confidential materials.
On June 12, 2009, Respondent filed an application to certify the court's order for interlocutory appeal (docket no. 50). In a minute order filed July 20, 2009 (docket no. 57), the court denied this application and again ordered Respondent to file an answer and submit evidence. In a notice of non-compliance filed August 3, 2009 (docket no. 58), Respondent reasserted the position that this court lacks jurisdiction to review the Secretary of State's final extradition decision, and respectfully declined to produce further evidence as ordered by the court.
In a motion filed August 4, 2009 (docket no. 4), Respondent made an anticipatory application for a detention hearing for Petitioner, and sought an order staying release. In a minute order filed August 28, 2009 (docket no. 63), the magistrate judge denied the application, without prejudice, as premature, stating that Petitioner was in custody, that the court had not ordered him released, and that, if the court issued the writ, the ...