The opinion of the court was delivered by: Hon. Thomas J. WhelanUnited States District Judge
ORDER DENYING STAY OF EXTRADITION ORDER PENDING APPEAL [DOC. 12]
On June 8, 2012, Magistrate Judge Bernard G. Skomal certified Santiago Gamez for extradition to Mexico, where is wanted for aggravated homicide. (Court's 2241 Order [Doc. 5] 1, 4.) Judge Skomal stayed his certification order while Gamez sought habeas relief from this Court. (Id. at 4.) On August 21, 2012, this Court denied habeas relief to Gamez, thereby lifting the stay on the certification order and permitting the Department of State to proceed with extradition. (See id. at 1, 9.)
On August 29, 2012, Gamez appealed this Court's habeas order to the Ninth Circuit Court of Appeals. (Not. Appeal [Doc. 8].) He now seeks another stay of his certification order pending resolution of that appeal. (Mot. Stay [Doc. 12]); see also Fed. R. App. P. 8(a)(1)(A) ("A party must move first in the district court for . . . a stay of the judgment or order of a district court pending appeal."). The Government opposes. (Opp'n [Doc. 16].) The Court considers the matter on the papers and without oral argument. See S.D. Cal. Civ. L.R. 7.1(d)(1). For the reasons below, the Court DENIES Gamez's motion to stay.
The power to stay an action is "part of its traditional equipment for the administration of justice." Nken v. Holder, 556 U.S. 418, 421 (2009). A stay is not, however, a matter of right. Id. at 434. It is subject to the court's discretion, and is exercised only if warranted by the "circumstances of the particular case." Id. "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 434-35. Courts consider four traditional factors before issuing a stay: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably harmed absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 425-26 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
"The first two factors of the traditional standard are the most critical." Id. at 434. The first factor, likelihood of success on the merits, requires the applicant to show at least "a substantial case for relief on the merits." Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011). The second factor requires an even stronger showing: the applicant must demonstrate that irreparable harm is "probable," or more likely than not, if the stay is denied. Id. at 968. The third and fourth factors, prejudice to the nonmoving party and public interest, "merge when the Government is the opposing party." Nken, 556 U.S. at 435. Ultimately, the stay applicant must show that "irreparable harm is probable and either: (a) a strong likelihood of success on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the [moving party's] favor." Leiva-Perez, 640 F.3d at 970.
Without a stay of his certification order, Gamez maintains that he
will be deprived of his ability to pursue appeal of this Court's
habeas denial. (Mot. Stay 5.) The Court agrees. If the Secretary of
State chooses to extradite Gamez, then he will most likely be
delivered to Mexico before his appeal of this Court's habeas order has
completed. In short, "his appeal will become moot and will be
v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986). In this circumstance,
the "possibility for irreparable harm . . . is evident."*fn1
B. Likelihood of Success on the Merits
Childs must also demonstrate a likelihood of success on appeal. At a minimum, he must present "a substantial case for relief on the merits." Leiva-Perez, 640 F.3d at 968. In his motion to stay, Gamez reiterates the same arguments that he made in his petition for habeas relief. (Mot. Stay 4-5.) He contends that Judge Skomal's probable-cause determination was inadequate because the primary evidence submitted by Mexico consisted of two eyewitness summaries that contained somewhat conflicting physical descriptions of Gamez and inconsistent accounts of the timing of the crime. (Id.) The Court considered these arguments, and, relying on established Ninth Circuit law, rejected them. (Court's 2241 Order 5-8.)
The only question before the Court on habeas review was whether "there [was] any competent evidence supporting the probable cause determination of the magistrate." Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006) (emphasis added).
The Ninth Circuit has confirmed that prosecutorial summaries are competent for this purpose. Manta v. Cherhoff, 518 F.3d 1134, 1146-47 (9th Cir. 2008); Zanzanian v. United States, 729 F.2d 624, 627 (9th Cir. 1984). Questions of evidentiary weight, moreover, are "solely within the province of the extradition magistrate." Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986). As this Court explained in its habeas order, "[s]o long as reliability issues do not 'completely obliterate' the evidence supporting probable cause, Judge Skomal was 'free to determine the weight to be accorded' to each eyewitness statement, and is not subject to second-guessing." (Court's 2241 Order 6) (citing Quinn, 783 F.2d at 815, Choe v. Torres, 535 F.3d 733, 740 (9th Cir. 2008), and Barapind v. Enomoto, 360 F.3d 1061, 1072 (9th Cir. 2004)).
The eyewitness accounts in this matter were inconsistent in some respects, but no so much that the reliability of each witness was obliterated. (See id. at 7.) While this may create issues in Mexico's pending prosecution of Gamez, it does not allow a reviewing court to conclude that Judge Skomal's probable-cause determination was supported by no competent evidence. Vo, 447 F.3d at 1240. In short, Gamez's evidentiary challenges do not present "a substantial case for relief on the merits." Leiva-Perez, 640 F.3d at 968. In a non-extradition case, the Court might come to the different ...