Cornejo-Barreto v. Seifert

• Citation: 218 F.3d 1004
• Decision Date: 07 December 1999
• Docket Number: No. 98-56827,CORNEJO-BARRETO,98-56827
• Parties: (9th Cir. 2000) RAMIRO, aka Rabbit, aka Cornhole, Petitioner-Appellant, v. W.H. SEIFERT, Warden, Respondent-Appellee. Office of the Circuit Executive
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1004

218 F.3d 1004 (9th Cir. 2000)

RAMIRO CORNEJO-BARRETO, aka Rabbit, aka Cornhole, Petitioner-Appellant, v. W.H. SEIFERT, Warden, Respondent-Appellee.

No. 98-56827

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted December 7, 1999--Pasadena, California

Withdrawn from Submission December 10, 1999

Resubmitted July 5, 2000

Filed July 11, 2000

[Copyrighted Material Omitted]

Maria E. Stratton, Federal Public Defender, Craig Wilke (argued), Deputy Federal Public Defender, Santa Ana, California, for the petitionerappellant.

Alejandro N. Mayorkas, United States Attorney, Monica Bachner, Assistant United States Attorney, Linda M. Aouate (argued) Assistant United States Attorney, Santa Ana, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding; D.C. No. CV-97-00843-AHS

Before: Betty B. Fletcher, Alex Kozinski, and David R. Thompson, Circuit Judges.

B. Fletcher, Circuit Judge:

Petitioner appeals the district court's denial of habeas relief from a magistrate's issuance of an extradition certificate and an order of commitment. The magistrate has found that petitioner is likely to be tortured if he is surrendered to the requesting government, but has nonetheless issued the extradition certificate. The United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"),¹ to which the United States is a party, prohibits extradition if torture is likely. Our task is to determine what procedures are available to petitioner to assert his rights under the Torture Convention and the timing thereof.

We conclude that the Secretary of State first must make a determination as to whether to extradite petitioner in light of his claim that the requesting government is likely to torture him upon surrender. 28 U.S.C. S 2241 confers jurisdiction only when no other relief is available to petitioner.² At this point it is still possible that the Secretary will refuse to surrender the petitioner. If the Secretary decides to surrender him, petitioner then will have recourse to federal court.

Examining federal legislation implementing the Torture Convention, we conclude that the Administrative Procedure Act ("APA") allows an individual facing extradition who is making a torture claim to petition, under habeas corpus, for review of the Secretary of State's decision to surrender him. We affirm the district court but direct that the denial be without prejudice.

I.

In August 1991, a judge in Tijuana Mexico issued a warrant for the arrest of Ramiro Cornejo-Barreto, a Mexican citizen who is a lawful permanent resident of the United States, charging him with homicide, robbery, injuries, deliberate property damage, kidnaping, and firing a weapon upon a person. These crimes were alleged to have occurred in Mexico on or about May 5, 1989.

Cornejo-Barreto was arrested in the United States on October 10, 1996 pursuant to a request by the government of Mexico under the U.S.-Mexico extradition treaty. The United States Attorney's office filed a Request for Extradition and Government's Filing of Formal Extradition Papers on December 12, 1996. Cornejo-Barreto appeared before Magistrate Judge Elgin Edwards on July 29, 30, and 31, and on August 6, 1997.

Cornejo-Barreto presented a defense to extradition based on Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which prohibits countries from surrendering individuals who will face torture in the requesting country. Cornejo-Barreto claimed that he should not be extradited to Mexico because he had been tortured and was likely to again be tortured when he returned. In response to this claim, the magistrate judge conducted a comprehensive factual hearing, allowing Cornejo-Barreto to call a number of witnesses and submit numerous exhibits. The government moved in limine to exclude the submissions, arguing that they supported an impermissible argument, since the Torture Convention does not create a basis for an extraditee to avoid extradition certification. The magistrate judge ultimately agreed with the government concerning the Torture Convention claim: he determined that the magistrate judge's role in extradition was limited to determining whether probable cause existed concerning the fugitive's alleged crimes. Cornejo-Barreto's evidence of torture was relevant to the magistrate judge's probable cause determination, however, since the allegations threatened to undermine the credibility of portions of the government's evidence.

Cornejo-Barreto introduced evidence that he was arrested and tortured by the State Judicial Police in Tijuana on May 5, 1989. He testified that he had chile shoved up his nostrils, and was deprived of food and water, subjected to death threats, beaten with fists and rifle butts, repeatedly hooded with a plastic bag until he lost consciousness, hung by the wrists, and shocked with electrodes attached to various parts of his body including his genitals. Cornejo-Barreto also testified that he was forced, under threat of death, to sign typewritten documents that he was not allowed to read, as well as blank papers that were later made to appear to be confessions to the charged crimes. Eight days after his arrest, Cornejo-Barreto appeared before a Mexican court for the first time since his arrest. A court document from this initial appearance reflects that Cornejo-Barreto had visible injuries when he was brought to court and that he told a public defender that he had been tortured. To support the credibility of his testimony, CornejoBarreto introduced evidence at the extradition hearing demonstrating that the torture he suffered is consistent with reports of torture in Mexico published by the U.S. Department of State and by Amnesty International. A medical expert testified that Cornejo-Barreto's injuries were consistent with a history of torture, and a psychological expert testified that Cornejo-Barreto's fear of returning to Mexico was consistent with an experience of torture and could reveal the presence of post-traumatic stress disorder.

To isolate any possible taint the alleged torture could have on the evidence supporting the probable cause determination, the judge considered the sufficiency of the evidence without the challenged confessions. He concluded that there was probable cause that Cornejo-Barreto committed the crimes charged in the extradition papers, even if the challenged evidence was excluded. On this basis, the magistrate judge entered Findings³, an Extradition Certification, and an Order of Commitment on September 26, 1997.

Cornejo-Barreto filed a petition for writ of habeas corpus on October 2, 1997. After a number of amendments to the petition, counsel presented arguments on June 29 and July 27, 1998 before District Court Judge Stotler. Cornejo-Barreto made three arguments: (1) that the extradition order violated Article 3 of the U.S.-ratified Torture Convention; (2) that the order violated his Fifth Amendment right to procedural due process; and (3) that the order violated his Eighth Amendment right to be free from cruel and unusual punishment. On October 7, 1998, the court denied Cornejo-Barreto's petition and granted his request for a stay pending appeal. The court found that the scope of its review was limited to ensuring that the elements necessary for extradition are present, thus barring Cornejo-Barreto's claims. Referring to the Ninth Circuit's rule regarding self-executing treaties explicated in Saipan v. United States Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974), the court found that Article 3 of the Torture Convention was not self-executing. The court found that the petitioner's Fifth Amendment claim was defeated by the special nature of extradition hearings and the limited process due fugitives facing return to a country that requests them. The court dismissed the Eighth Amendment claim on the ground that the Eighth Amendment applies in criminal settings only; under caselaw, extradition proceedings are not criminal proceedings. Finally, the court denied a request by CornejoBarreto to admit the evidence included in his extradition proceeding regarding his past torture and fear of future torture. Cornejo-Barreto timely appealed the district court's order denying him habeas relief. On appeal, he raises only the Torture Convention claim.

We have jurisdiction under 28 U.S.C. S 1291 and we review de novo. See Allen v. Crabtree, 153 F.3d 1030, 1032 (9th Cir. 1998) (district court's grant or denial ofS 2241 habeas corpus petition reviewed de novo), cert. denied, 525 U.S. 1091 (1999). We affirm the district court's denial of the petition but direct that it be without prejudice to the filing of a new petition should the Secretary of State decide to surrender Cornejo-Barreto.

II.

A. The Extradition Scheme

Extradition from the United States is governed by 18 U.S.C. S 3184 (2000), which confers jurisdiction on "any justice or judge of the United States" or any authorized magistrate to conduct an extradition hearing under the relevant extradition treaty between the United States and the requesting nation. A statute or extradition treaty is a prerequisite to extradition. See Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir. 1986). The requesting nation must demonstrate that there is probable cause that the fugitive committed the charged offense. See id. at 782-783.

Extradition is ordinarily initiated by a request from the foreign state to the Department of State. See R ESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW S 478 (1986). The Department of State determines whether the request is within the relevant treaty, and if so, forwards the request to the Department of Justice for a similar screening; once this is complete, the request is...