Hedelito Trinidad Y Garcia v. Michael Benov, No. 2:2008cv07719 - Document 73 (C.D. Cal. 2009)
Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 39 by Judge Margaret M. Morrow. The petition for writ of habeas corpus is granted. Petitioner is ordered released from custody imposed purusant to the Secretary's surrender warrant. Judgment s hall be entered accordingly. The order releasing Petitioner from custody is stayed, for a period of sixty days, or such shorter time as is needed, for resolution of Respondent's application for Petitioner's continued detention pending appeal of this decision. (ah)
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Hedelito Trinidad Y Garcia v. Michael Benov Doc. 73 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 HEDELITO TRINIDAD y GARCIA, Petitioner, 13 14 15 v. MICHAEL BENOV (Warden), 16 Respondent. ) ) ) ) ) ) ) ) ) ) No. CV 08-07719-MMM(CW) [PROPOSED] ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 17 18 19 The petition for writ of habeas corpus is GRANTED for the reasons and on the conditions stated below. 20 21 BACKGROUND AND PROCEEDINGS Petitioner Hedelito Trinidad y Garcia challenges the legality of 22 his federal custody pending extradition to the Philippines. The 23 present action is the third of three related cases in this court, 24 namely, an extradition proceeding and two habeas petitions.1 25 26 27 28 1 This background information is taken from the Report and Recommendation (docket no. 39) filed February 13, 2009, which contains a detailed discussion of the extradition process and the proceedings and issues in Petitioner’s three cases, along with citations to the records and to legal authorities. 1 Dockets.Justia.com 1 The extradition proceeding was initiated on December 18, 2003, 2 when the United States Attorney filed a complaint seeking Petitioner’s 3 extradition to the Philippines on a charge of kidnaping for ransom and 4 the court issued a bench warrant. 5 Case No. M 03-2710.] 6 October 8, 2004, and the federal public defender was appointed to 7 represent him. 8 Extradition of Trinidad, No. CV 04-10097-MMM(CW), and a formal request 9 for extradition was filed. [See United States v. Trinidad, Petitioner was arraigned in this court on On December 10, 2004, the case was re-docketed as The matter was briefed extensively, and 10 the magistrate judge held an evidentiary hearing (on May 19 and 24, 11 2005, with closing arguments on August 25, 2005).2 12 In the extradition proceeding it was undisputed that this court 13 had jurisdiction, that a valid treaty was in force, and that the 14 charged offense was covered by the treaty. 15 whether there was probable cause to believe Petitioner committed the 16 charged offense. 17 on humanitarian grounds under the United Nations Convention Against 18 Torture (the “Torture Convention”). 19 in an extradition proceeding, the court had no authority to deny 20 certification on such grounds, and that such a claim was not ripe for 21 judicial review unless and until the Secretary of State made a final 22 decision to extradite Petitioner. The parties disputed Petitioner also argued for denial of certification The magistrate judge found that, 23 24 25 26 27 28 2 Extradition proceedings are usually brought before magistrate judges. The magistrate judge’s role is to determine whether the charged offense is extraditable under the relevant treaty, and whether there is probable cause to sustain the charge against the person in question. On making such determinations, the magistrate judge is required to certify the person as extraditable to the Secretary of State. See Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006); Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005). 2 1 After considering evidentiary issues, the magistrate judge 2 concluded that the minimum standard of probable cause had been met. 3 The magistrate judge’s Certification of Extraditability was filed 4 September 7, 2007. 5 magistrate judge stayed extradition until completion of habeas corpus 6 proceedings in the district court.3 In an order filed September 18, 2007, the 7 On October 5, 2007, Petitioner filed a petition for writ of 8 habeas corpus under 28 U.S.C. § 2241, which was docketed as No. CV 07- 9 6387-MMM. Petitioner challenged the certification, contending that 10 the magistrate judge erred in admitting supplemental evidence; that, 11 even with the supplemental evidence, the probable cause finding was 12 not supported; and that, even if a probable cause finding was 13 supported, Petitioner’s extradition would violate federal law and the 14 Torture Convention. 15 On December 20, 2007, Petitioner moved to stay the first habeas 16 proceeding until the Secretary of State had reviewed his Torture 17 Convention claim. 18 the motion to stay, finding that a Torture Convention claim would only 19 be ripe for judicial review if the Secretary decided to extradite 20 Petitioner, and that Petitioner could seek a stay of extradition, if 21 necessary, once the district court decided the habeas petition. 22 April 15, 2008, Petitioner moved for reconsideration of the order 23 denying a stay. In an order filed March 3, 2008, the court denied On In an order filed May 13, 2008, the court denied the 24 25 26 27 28 3 A magistrate judge’s certification of a person as extraditable is not directly appealable but may be challenged in a habeas petition filed as a new action in the district court. Vo, 447 F.3d at 1240. The district court’s habeas review of a magistrate judge’s extradition order is limited to whether the magistrate had jurisdiction, whether a treaty in force covered the charged offense, and whether competent evidence supported a finding of probable cause. Vo, 447 F.3d at 1240. 3 1 motion, again finding the Torture Convention claim not ripe for review 2 unless and until the Secretary decided to extradite Petitioner. 3 In an order filed July 16, 2008, the court denied Petitioner’s 4 first habeas petition, rejecting the evidentiary arguments and 5 affirming the probable cause finding. 6 that the Torture Convention claim, if reviewable, would not be ripe 7 until the Secretary had made a final decision to surrender Petitioner 8 for extradition, and denied the first habeas petition without 9 prejudice to asserting a Torture Convention claim in a second The court also found, again, 10 petition. On July 24, 2008, Petitioner waived his right to appeal the 11 district court decision in the first habeas proceeding. 12 12, 2008, the Secretary of State issued a warrant to surrender 13 Petitioner for extradition.4 14 extradition pending resolution of a second habeas petition. 15 filed September 29, 2008, the court granted the stay. On September Petitioner then filed a request to stay In orders 16 The present, second habeas proceeding was opened on November 24, 17 2008, as a petition for writ of habeas corpus under 28 U.S.C. § 2241, 18 docketed as No. CV 08-7719-MMM(CW). 19 petition and other documents were originally filed in Case No. CV 07- 20 6387, and were re-docketed under the new case number.) 21 habeas petition challenges Petitioner’s custody pending extradition to 22 the Philippines under the Secretary of State’s surrender warrant 23 issued September 12, 2008. 24 would violate the Torture Convention and federal law because there are (Petitioner’s second habeas The second Petitioner contends that his extradition 25 26 27 28 4 If a person has been judicially certified as extraditable, the Secretary of State then decides whether to surrender that person to the foreign state. Vo, 447 F.3d at 1237. The Secretary may decide to extradite, not to extradite, or to extradite with conditions. See, e.g., United States v. Kin Hong, 110 F.3d 103, 109-10 (1st Cir. 1997). 4 1 substantial grounds to believe that he would be tortured if returned 2 to the Philippines. 3 to extradite him, in spite of his Torture Convention claim, was 4 arbitrary in violation of the Administrative Procedure Act (“APA”), 5 5 U.S.C. § 551 et seq.5 6 Petitioner claims that the Secretary’s decision Respondent filed an application to dismiss the second petition 7 for lack of jurisdiction, which the parties fully briefed. In the 8 February 13, 2009 Report and Recommendation, the magistrate judge 9 recommended that the application to dismiss the petition be denied and 10 that respondent be ordered to answer Petitioner’s APA claim on its 11 merits. 12 supplemental authority (docket no. 47) to which Petitioner filed a 13 response (docket no. 48). 14 46), the court adopted the Report and Recommendation, denied the 15 motion to dismiss, ordered Respondent to file an answer addressing 16 Petitioner’s APA claim on its merits, directed Respondent to submit 17 evidence from the administrative record (sufficient to enable the 18 court to determine whether the Secretary acted arbitrarily, 19 capriciously, in abuse of discretion, or in violation of law in 20 deciding to extradite Petitioner), and stated that Respondent might 21 raise any issues about the protection of confidential materials. 22 Respondent filed objections (docket no. 40), and a notice of In an order filed May 15, 2009 (docket no. On June 12, 2009, Respondent filed an application to certify the 23 court’s order for interlocutory appeal (docket no. 50). In a minute 24 order filed July 20, 2009 (docket no. 57), the court denied this 25 application and again ordered Respondent to file an answer and submit 26 27 28 5 Petitioner also claims that the Secretary’s decision denied him procedural and substantive due process under the Fifth Amendment, but the court has not reached, and need not reach, those claims. 5 1 evidence. 2 no. 58), Respondent reasserted the position that this court lacks 3 jurisdiction to review the Secretary of State’s final extradition 4 decision, and respectfully declined to produce further evidence as 5 ordered by the court. 6 In a notice of non-compliance filed August 3, 2009 (docket In a motion filed August 4, 2009 (docket no. 4), Respondent made 7 an anticipatory application for a detention hearing for Petitioner, 8 and sought an order staying release. 9 28, 2009 (docket no. 63), the magistrate judge denied the application, In a minute order filed August 10 without prejudice, as premature, stating that Petitioner was in 11 custody, that the court had not ordered him released, and that, if the 12 court issued the writ, the parties would then have an opportunity to 13 litigate the issue of Petitioner’s release or detention pending 14 appeal. 15 At a status conference on September 4, 2009, counsel confirmed 16 that the Government anticipates that the writ will be granted, intends 17 to appeal on the issue of jurisdiction, and intends to ask the court 18 to order that Petitioner remain in custody while the appeal is 19 pending, and that Petitioner also anticipates that the writ will be 20 granted, and intends to seek release on conditions pending appeal. 21 [See minute order filed September 4, 2009, docket no. 64.] 22 expedite proceedings, counsel agreed that counsel would waive the 23 opportunity to file objections to a second report and recommendation; 24 that Magistrate Judge Woehrle would submit this matter to Judge Morrow 25 for decision by presented order rather than report and recommendation; 26 that the presented order would be lodged and served on the parties; 27 and that, after the filing of this order, the court would hold a 28 hearing on issues raised in Respondent’s “anticipatory application” 6 To 1 (docket no. 59). Since then, Petitioner has filed opposition to 2 Respondent’s application for continued detention (docket no. 66), and 3 Respondent has filed a reply (docket no. 67). THE TORTURE CONVENTION 4 5 The Torture Convention was adopted by the United Nations General 6 Assembly in 1984, and entered into force as to the United States in 7 1994. 8 1004, 1007 and n.1 (9th Cir. 2000). 9 Convention provides that “[n]o State Party shall . . . extradite a See Cornejo-Barreto v. Seifert (“Cornejo-Barreto I”), 218 F.3d Article 3 of the Torture 10 person to another State where there are substantial grounds for 11 believing that he would be in danger of being subjected to torture.” 12 Quoted in Cornejo-Barreto I, 218 F.3d at 1011. 13 Torture Convention was implemented by Congress in 1998 in section 2242 14 of the “FARR Act,” which stated that it was United States policy not 15 to extradite any person to a country where there were substantial 16 grounds for believing that person would be in danger of being 17 tortured, and called for the adoption of regulations to implement that 18 policy.6 19 section 2242 of the FARR Act and defining the Secretary of State’s 20 duties under Article 3 of the Torture Convention in regard to 21 extradition. 22 Article 3 of the The State Department adopted regulations implementing These regulations provide, in part, as follows: [T]he Secretary [of State] is the U.S. official 23 responsible for determining whether to surrender a fugitive 24 to a foreign country by means of extradition. 25 implement the obligation assumed by the United States In order to 26 27 28 6 The FARR Act is the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681. Section 2242 of the FARR Act was codified in a note to 8 U.S.C. § 1231. 7 1 pursuant to Article 3 of the [Torture] Convention, the 2 Department considers the question of whether a person facing 3 extradition from the U.S. “is more likely than not” to be 4 tortured in the State requesting extradition when 5 appropriate in making this determination. 6 Decisions on extradition are presented to the Secretary 7 only after a fugitive has been found extraditable by a 8 United States judicial officer. 9 allegations relating to torture are made or the issue is In each case where 10 otherwise brought to the Department’s attention, appropriate 11 policy and legal offices review and analyze information 12 relevant to the case in preparing a recommendation to the 13 Secretary as to whether or not to sign the surrender 14 warrant. 15 Based on the resulting analysis of relevant 16 information, the Secretary may decide to surrender the 17 fugitive to the requesting State, to deny surrender of the 18 fugitive, or to surrender the fugitive subject to 19 conditions. 20 22 C.F.R. §§ 95.2-95.3 (2000)(quoted in Cornejo-Barreto I, 218 F.3d at 21 1011-12). 22 THE JURISDICTIONAL ISSUE 23 As discussed at length in the Report and Recommendation cited 24 above, this court’s determination that it has jurisdiction to review 25 Petitioner’s Torture Convention claim is controlled by the Ninth 26 Circuit’s decision in Cornejo-Barreto I. 27 understood by this court, the Ninth Circuit held that a fugitive 28 fearing torture if extradited may bring a claim in a habeas petition 8 In Cornejo-Barreto I, as 1 under 28 U.S.C. § 2241, that such a claim would only be ripe if and 2 when the Secretary of State makes a final decision to surrender the 3 fugitive for extradition, and that a district court would then have 4 jurisdiction to review such a claim. 5 1012-13. Cornejo-Barreto I, 218 F.3d at The Ninth Circuit summarized its conclusions as follows: 6 The individual’s right to be free from torture is an 7 international standard of the highest order. 8 a jus cogens norm [footnote omitted]: the prohibition 9 against torture may never be abrogated or derogated. Indeed, it is 10 [footnote omitted] 11 enactments consistent with this prohibition. 12 extradition context, the approach we describe here allows us 13 to give full effect to Congressional legislation without 14 creating a conflict between domestic and international law. 15 We recognize that Congress intended the Secretary of State 16 to act as the “competent authority” charged with enforcing 17 Article 3 of the Convention. 18 Congress did not limit judicial review of the Secretary’s 19 decisions under long-standing APA procedures. 20 ordered extradited by the Secretary of State who fears 21 torture upon surrender, therefore, may state a claim 22 cognizable under the APA that the Secretary of State has 23 breached her duty, imposed by the FARR Act, to implement 24 Article 3 of the Torture Convention. 25 in a petition for habeas corpus, becomes ripe as soon as the 26 Secretary of State determines that the fugitive is to be 27 surrendered to the requesting government. 28 We must therefore construe Congressional In the We also recognize that Id. at 1016-17. 9 An extraditee Such a claim, brought In applying to dismiss the present petition for lack of 1 2 jurisdiction, Respondent raised five arguments applicable to the APA 3 claim: that district court review of Torture Convention claims is 4 barred by the “REAL ID Act”7; that judicial review of the Secretary’s 5 final extradition decisions is precluded by the “Rule of Non-Inquiry” 6 as reaffirmed in Munaf v. Geren, ___ U.S. ___, 128 S. Ct. 2207, 171 L. 7 Ed. 2d 1 (2008); that neither the Torture Convention nor the FARR Act 8 overturned the Rule of Non-Inquiry; that the APA does not support 9 judicial review of the Secretary’s decisions; and that the suggestion 10 in Cornejo-Barreto I that the Secretary’s decisions are reviewable 11 amounts to non-binding dicta. 12 lengthy discussion in the February 13, 2009 Report and Recommendation. 13 That determination was adopted by the court’s May 15, 2009 Order, 14 which also rejected further arguments raised in Respondent’s 15 objections. 16 Recommendation are incorporated in this order. 17 Respondent’s jurisdictional challenge, this court has relied on and 18 continues to rely on its reading of the holding in Cornejo-Barreto I 19 and its understanding that this holding remains the law of this 20 circuit and is binding on this court. These arguments were rejected after That order and the discussion in the Report and In rejecting 21 PETITIONER’S APA CLAIM 22 The Cornejo-Barreto I Panel did not decide a claim under the 23 Torture Convention and the APA, nor did it determine the evidence 24 needed or the standard to be applied in reaching such a decision; 25 instead, it simply held that a petitioner could obtain judicial review 26 of such a claim once it became ripe. 27 7 28 See the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. 10 1 In Petitioner’s case, it is undisputed that he presented a 2 Torture Convention claim to the Secretary of State, that he was 3 entitled to the Secretary’s review of that claim (pursuant to the 4 Torture Convention, the FARR Act, and the implementing regulations), 5 and that, in issuing a surrender warrant, the Secretary rejected his 6 Torture Convention claim. 7 presented to this court a non-frivolous claim for habeas corpus 8 relief, contending that his custody pursuant to the surrender warrant 9 is illegal because the Secretary’s denial of his Torture Convention 10 11 In the present action, Petitioner has claim was arbitrary under the APA.8 As noted above, this court has held that Petitioner’s Torture 12 Convention claim is now ripe, and that this court has jurisdiction to 13 review it under the APA. 14 Respondent to answer Petitioner’s APA claim on its merits and to 15 submit evidence from the administrative record sufficient to enable 16 the court to determine whether the Secretary acted arbitrarily in 17 deciding to extradite Petitioner, while stating that Respondent might 18 raise any issues about protection of confidential materials. 19 unsuccessfully sought reconsideration or immediate appeal on the 20 jurisdictional issue, Respondent then declined to comply with this 21 court’s orders on further proceedings. 22 now decide this claim under the APA, without Respondent’s assistance. 23 In its May 15, 2009 Order, the court ordered Having Accordingly, the court must Under the APA, a reviewing court must hold unlawful and set aside 24 an agency action that is “arbitrary, capricious, an abuse of 25 discretion, or otherwise not in accordance with law.” Crickon v. 26 27 28 8 Petitioner’s claim that he fears being subjected to torture if extradited is supported by evidence that several of his co-defendants were subjected to torture while in custody in the Philippines. 11 1 Thomas, 579 F.3d 978, 982 (9th Cir. 2009)(quoting 5 U.S.C. § 706(2) 2 (A). 3 action to be valid and affirming the agency action if a reasonable 4 basis exists for its decision.” 5 Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service, 475 6 F.3d 1136, 1140 (9th Cir. 2007)(citation and internal quotation marks 7 omitted)). 8 relevant factors and articulated a rational connection between the 9 facts found and the choices made.” However, review is “highly deferential, presuming the agency Crickon, 579 F.3d at 982 (quoting “A reasonable basis exists where the agency considered the Crickon, 579 F.3d at 982 (quoting 10 Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008)(citation and 11 internal quotation marks omitted)). 12 A court reviewing an agency decision considers the administrative 13 record as a whole, “weighing both the evidence that supports and the 14 evidence that detracts from the [agency’s] conclusion.” 15 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 16 may set aside an agency decision that is “unsupported by substantial 17 evidence.” 18 561 (9th Cir. 2008) (quoting 5 U.S.C. § 706(2)(E).9 19 must review an agency decision based solely on the administrative 20 record “and determine whether the agency has articulated a rational 21 basis for its decision.” 22 Thomas, 533 F.3d 800, 805 (9th Cir. 2008)). 23 itself to make up for deficiencies in the record. 24 (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Lingenfelter The reviewing court Robert F. Kennedy Medical Center v. Leavitt, 526 F.3d 557, However, a court Crickon, 579 F.3d at 982 (quoting Tablada v. The court may not attempt Crickon, id. 25 9 26 27 28 “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 149, 117 S. Ct. 1953, 138 L. Ed. 2d 327 (1997) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). 12 1 Auto. Ins., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 2 (1983)). 3 for the agency’s action that the agency itself has not given.” 4 Crickon, id. (citing Motor Vehicle Mfrs. Ass’n, id.). 5 reviewing court “infer an agency’s reasoning from mere silence.” 6 Crickon, id. (quoting Arrington, 516 F.3d at 1112). Thus, the reviewing court may “not supply a reasoned basis Nor should the In Petitioner’s case, Respondent has refused to provide the 7 8 administrative record on which the Secretary relied in making her 9 final decision.10 Because of Respondent’s refusal to comply with 10 court orders, the court has no administrative record to review, no 11 evidence to weigh, and no grounds for finding that the Secretary’s 12 decision was supported by substantial evidence. 13 refused to provide any relevant evidence from which this court could 14 find that “the agency has articulated a rational basis for its 15 decision.” 16 not attempt itself to make up for this deficiency by supplying “a 17 reasoned basis for the agency’s action that the agency itself has not 18 given,” and may not “infer an agency’s reasoning from mere silence.” 19 Id. Crickon, 579 F.3d at 982. Respondent has As noted above, this court may Accordingly, the court has no alternative by to conclude that a 20 21 22 23 24 25 26 27 28 10 Petitioner contended in the Traverse (docket no. 62) that this court may presume that Petitioner’s record in this court was incorporated in the administrative record. However, this court has no evidence as how the court record figured into the administrative process after Petitioner was certified as extraditable. The only evidence on this question yet supplied by Respondent consists of declarations attesting to procedures the State Department generally follows in deciding whether to surrender a fugitive, certified as extraditable, who states a claim under the Torture Convention. See, e.g., Declaration of Clifton M. Johnson, exhibit to Respondent’s opposition to Petitioner’s bail motion (docket no. 33, filed January 5, 2009). However, this evidence does not establish what the Secretary’s decision in this specific case was based on, or whether that decision was arbitrary, which are the points at issue in the present action. 13 1 decision for which no rationale has been offered is, per se, 2 arbitrary, and is not entitled to any deference. 3 F.3d at 983 (“‘[t]he agency’s lack of explanation for its choice 4 renders its decision arbitrary and capricious”’)(quoting Arrington, 5 516 F.3d at 1112). 6 See Crickon, 579 ORDERS 7 It is therefore ORDERED as follows: 8 1. The petition for writ of habeas corpus is granted. 9 2. Petitioner is ordered released from custody imposed pursuant 10 to the Secretary’s surrender warrant. 11 3. Judgment shall be entered accordingly. 12 4. The order releasing Petitioner from custody is stayed, for a 13 period of sixty days, or such shorter time as is needed, for 14 resolution of Respondent’s application for Petitioner’s continued 15 detention pending appeal of this decision. 16 17 DATED: November 17, 2009 18 MARGARET M. MORROW United States District Judge 19 Presented by 20 Dated: October 16, 2009 21 22 23 /S/ CARLA M. WOEHRLE United States Magistrate Judge 24 25 26 27 28 14
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