Demjanjuk v. Petrovsky, C85-1226.

Decision Date17 May 1985
Docket NumberNo. C85-1226.,C85-1226.
Citation612 F. Supp. 571
PartiesJohn DEMJANJUK, Petitioner, v. Joseph PETROVSKY, Warden, et al., Federal Prison Medical Facility, Springfield, Mo., Respondents.
CourtU.S. District Court — Northern District of Ohio

COPYRIGHT MATERIAL OMITTED

Mark O'Connor, Buffalo, N.Y., John J. Gill, David Eisler, Cleveland, Ohio, for petitioner.

Gary D. Arbeznik, Asst. U.S. Atty., Cleveland, Ohio, Murray R. Stein, Office of Intern. Affairs, Alvin D. Lodish, Michael Wolfe, Bruce Einhorn, Office of Special Investigations, U.S. Dept. of Justice, Washington, D.C., for respondents.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

This matter is before the Court today on John Demjanjuk's Petition for Writ of Habeas Corpus (filed April 25, 1985) challenging the April 15, 1985 certificate of extraditability.1

I.

In October of 1983, the State of Israel requested the extradition of John Demjanjuk from the United States to stand trial in Israel for murder and other offenses alleged under the Nazis and Nazi Collaborators (Punishment) Law, sections 1-4, pursuant to an Arrest Warrant, issued by Judge A.M. Simcha of the Magistrates Court, Jerusalem, Israel on October 18, 1983. The request was based upon the Convention on Extradition between the Government of the United States of America and the Government of the State of Israel. T.I.A.S. 5476, 14 U.S.T. 1717 (entered into force December 5, 1963) hereinafter the "Treaty". Acting on behalf of Israel, the United States government filed a Complaint in the Northern District of Ohio seeking the extradition of John Demjanjuk to Israel, on November 18, 1983. The extradition matter was assigned to this Court, as a matter related to the denaturalization proceedings against John Demjanjuk over which this Court presided. United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981), aff'd 680 F.2d 32 (6th Cir.1982) cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982), pursuant to Local Civil Rule 7.09(4)(c) (N.D.Ohio).2

After the Court received extensive briefing by both the parties and the amicus curiae, the International Human Rights Group, the extradition hearing required by 18 U.S.C. § 3184 was held in two parts. On December 17, 1984, the question of whether a United States civilian court has subject matter jurisdiction in an extradition proceeding where the crimes alleged occurred during wartime, as well as several preliminary issues, was addressed. Matter of Demjanjuk 603 F.Supp. 1463, 1465 (N.D.Ohio 1984). On February 21, 1985, this Court found that it did have subject matter jurisdiction to hear and decide the extradition matter. Matter of Demjanjuk, 603 F.Supp. 1468, 1469 (N.D.Ohio 1985). On March 12, 1985, the hearing on all other issues was held.

On April 15, 1985, this Court issued an opinion which addresses the numerous issues of facts and law presented by the extradition request and certifies to the Secretary of State that John Demjanjuk is extraditable to the State of Israel. The certification states that the John Demjanjuk brought before the Court is the one named in the Israeli Extradition Request and that competent and sufficient evidence has been presented to sustain charges of "murder", which are extraditable offenses pursuant to the Treaty. Order of April 15, 1985 at 51-52.

Petitioner John Demjanjuk argues that he is unlawfully imprisoned because the extradition court has acted "in violation of the Constitution, laws and treaties of the United States". Petition for a Writ of Habeas Corpus by a Prisoner in Federal Custody at 2 (filed April 25, 1985) Hereinafter "Habeas Petition". Petitioner argues that: jurisdiction over the extradition proceedings was taken contrary to the Constitution and, thus, the evidence of identity and probable cause was improperly before the Court, Habeas Petition at ii-iii, "the crime of genocide ... is outside the terms of the Treaty", id. at iii, and petitioner is not properly charged, as required by 18 U.S.C. § 3184, id. at iii.

II. RECUSAL

Petitioner John Demjanjuk's attorneys have orally requested that this Court recuse itself from hearing the petition for writ of habeas corpus. They argue that it would be improper or inappropriate for this Court to, in effect, review itself by examining the validity of the April 15, 1985 certification of extraditability. In addition, they contend that there would be an appearance of bias and impropriety for this Court to rule on the petition for writ of habeas corpus. Presumably, they base their argument on 28 U.S.C. § 455(a) which provides:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Petitioner's request is denied.

First, petitioner's argument has been expressly rejected by at least one circuit court in the context of a petition for a writ of habeas corpus attacking extradition proceedings. In David v. Attorney General of United States, 699 F.2d 411 (7th Cir. 1983), David appealed the district court's denial of his petition for writ of habeas corpus. Judge Foreman, of the Eastern District of Illinois, had certified David as extraditable under the French-American Extradition Treaty on charges of willful homicide and attempted willful homicide. Subsequently, Judge Foreman denied David's habeas petition. In affirming the district court's denial of the writ of habeas corpus, the Seventh Circuit found, inter alia, that Judge Foreman had not violated 28 U.S.C. § 455(a) by considering the habeas petition. The Seventh Circuit stated that a judge is not required to recuse himself from hearing a habeas petition which attacks an extradition hearing over which he presided. The Seventh Circuit found support for its decision in the procedures employed in actions brought under 28 U.S.C. § 22553 and in cases where a district judge is reversed, or has an order vacated, and the case is remanded to the judge for further proceedings. Id. at 416.

Second, while this case involves a petition brought pursuant to 28 U.S.C. § 2241 and the Rules Governing § 2255 Proceedings for United States District Court do not govern, Rule 4(a) of the § 2255 Rules and judicial precedent in cases involving § 2255 petitions for habeas corpus provide persuasive evidence that there is no impropriety in this Court's accepting jurisdiction in this case. Rule 4(a) provides:

Reference to judge; dismissal or order to answer.
The original motion shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district in accordance with the procedure of the court for the assignment of its business.

There are numerous cases where a trial judge in a criminal matter has decided a § 2255 proceeding in accordance with Rule 4 and has had his refusal to recuse himself upheld. Accord, e.g., Burris v. United States, 430 F.2d 399 (7th Cir.1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1970); Lucero v. United States, 425 F.2d 172, 173 (9th Cir.1970); Dukes v. United States, 407 F.2d 863 (9th Cir.1969); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968); Mirra v. United States, 379 F.2d 782 (2nd Cir.1967), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667; United States v. Smith, 337 F.2d 49 (4th Cir.1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436; Simmons v. United States, 302 F.2d 71 (3d Cir.1962); Martin v. United States, 273 F.2d 775, 777 (10th Cir.1960), cert. denied, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961); Carvell v. United States, 173 F.2d 348 (4th Cir.1949); see also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). But see Halliday v. United States, 380 F.2d 270 (1st Cir.1967). These courts have reasoned that the trial judge's familiarity with the facts and circumstances surrounding the original trial makes it desirable for him to deal with the § 2255 petitions. Burris, 430 F.2d at 402.

Section 2255 was inserted in the judicial code to avoid the unseemly practice of having attacks upon the regularity of trials made before a coordinate judge. Carvell, 173 F.2d at 348; Smith, 337 F.2d at 52 (quoting Parker, "Limiting the Abuse of Habeas Corpus", 8 F.R.D. 171, 172-73 (1949)). Section 2255 was designed to eliminate the intolerable situation in which another district judge would consider evidence outside the original trial record and be forced to weigh the testimony of the original trial judge against the word of a convicted felon.4 United States v. Edwards, 152 F.Supp. 179, 182 (D.D.C.1957).

Such factors are equally applicable in § 2241 habeas corpus proceedings initiated to attack a certificate of extraditability. This Court is familiar with the facts and circumstances surrounding the consideration of Israel's extradition request and related judicial proceedings. The likelihood of being misled by false allegations as to what occurred is slight. Furthermore, if this Court determines the merit of Demjanjuk's habeas petition, this District will avoid the unseemly spectacle of one district judge weighing the determination of a fellow district court judge against legal arguments and factual allegations made by an alleged felon.

Third, the Local Civil Rules for the Northern District of Ohio provide that cases "related" to cases already assigned to a judge should be assigned to that judge. Local Civil Rule 7.09. Judge Thomas Lambros determined that Demjanjuk's habeas petition is related to Case No. 83-Misc. 349 (the extradition proceeding) and thus, that Local Rule 7.09(3) "mandates the assignment of this action to the judge who heard the original case." Order of April 25, 1985. Pursuant to the...

To continue reading

Request your trial
5 cases
  • U.S. v. Demjanjuk, 02-3529.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 30, 2004
    ...Demjanjuk 6)1; 2.) United States v. Demjanjuk, 680 F.2d 32 (6th Cir.1982) (per curiam) (affirming Demjanjuk 1); 3.) Demjanjuk v. Petrovsky, 612 F.Supp. 571 (N.D.Ohio 1985) (denying habeas, thus allowing the executive branch to extradite Defendant to Israel, id. at 574; but this ruling was l......
  • In re Extradition of Skaftouros, 08 Crim. Misc. 01 (THK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 31, 2009
    ...at *17 (S.D.N.Y. Jan. 19, 2005) (declining to review the formality of charges issued in Bosnia and Herzegovina); Demjanjuk v. Petrovsky, 612 F.Supp. 571, 578 (N.D.Oh.1985) (explaining that an extradition court need not "review compliance with foreign criminal procedure"), aff'd, 776 F.2d 57......
  • Demjanjuk v. Meese, 86-5097
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 27, 1986
    ...corpus and for a hearing and stay are, therefore, denied. 1 The cases dealing with the extradition of petitioner are Demjanjuk v. Petrovsky, 612 F.Supp. 571 (N.D.Ohio), aff'd, 776 F.2d 571 (6th Cir.1985), cert. denied, --- U.S. ---, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); In re Extradition o......
  • Demjanjuk v. Petrovsky, 85-3435
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 24, 1994
    ...447, 74 L.Ed.2d 602 (1982). The district court's opinions in the extradition proceeding are reported at 612 F.Supp. 544 and 612 F.Supp. 571 (N.D.Ohio 1985). Demjanjuk's claims of misconduct consisted of the government's failure to disclose information that pointed to another Ukrainian guard......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT