622 F.Supp.2d 980 (C.D.Cal. 2009), CV 06-2599-PA(RC), Prasoprat v. Benov

Docket NºCV 06-2599-PA(RC).
Citation622 F.Supp.2d 980
Opinion JudgePERCY ANDERSON, District Judge.
Party NameSuwit PRASOPRAT, Petitioner v. Michael BENOV, Warden of the Metropolitan Detention Center, Respondent.
AttorneyBarry O. Bernstein, Barry O. Bernstein Law Offices, Burbank, CA, Karyn H. Bucur, Karyn H. Bucur Law Offices, Laguna Hills, CA, for Petitioner. Lisa A. Olson, U.S. Department of Justice, Washington, DC, for Respondent.
Judge PanelROSALYN M. CHAPMAN, United States Magistrate Judge.
Case DateMay 25, 2009
CourtUnited States District Courts, 9th Circuit, Central District of California

Page 980

622 F.Supp.2d 980 (C.D.Cal. 2009)

Suwit PRASOPRAT, Petitioner

v.

Michael BENOV, Warden of the Metropolitan Detention Center, Respondent.

No. CV 06-2599-PA(RC).

United States District Court, C.D. California.

May 25, 2009

Page 981

Barry O. Bernstein, Barry O. Bernstein Law Offices, Burbank, CA, Karyn H. Bucur, Karyn H. Bucur Law Offices, Laguna Hills, CA, for Petitioner.

Lisa A. Olson, U.S. Department of Justice, Washington, DC, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

PERCY ANDERSON, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; (3) respondent's motion to dismiss is denied; and (4) the

Page 982

petition for writ of habeas corpus is denied on the merits, and the action is dismissed with prejudice, and Judgment shall be entered accordingly.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On April 28, 2006, petitioner Suwit Prasoprat filed his second habeas corpus petition under 28 U.S.C. § 2241 challenging his extradition to Thailand, and that petition is pending. The petitioner raises the following claims in his habeas petition: (1) " The Secretary of State has a mandatory duty not to Extradite someone who is likely to be tortured"; (2) Petitioner, " a U.S. citizen[,] will likely be tortured if he is extradited to Thailand"; and (3) " The Secretary's decision to extradite [petitioner] is arbitrary and capricious." On June 20, 2006, respondent answered the petition, and on August 3, 2006, respondent filed a motion to dismiss the petition. On September 22, 2006, petitioner filed a reply and an opposition to the motion to dismiss, and on October 13, 2006, respondent filed a response. On January 12, 2009, respondent filed a supplemental memorandum in support of his motion to dismiss, and on January 28, 2009, petitioner filed a response.

II

The facts underlying petitioner's detention are:

In 1998, a confidential informant reported to an agent of the Drug Enforcement Administration (" DEA" ) that [petitioner Suwit] Prasoprat was involved in heroin trafficking between Bangkok, Thailand, and Los Angeles. The DEA monitored [petitioner] for several years and, in 2001, the United States filed a complaint in the United States District Court on behalf of the Government of the Kingdom of Thailand, seeking [petitioner's] extradition to Thailand pursuant to the extradition treaty between the United States and Thailand. The complaint alleged that [petitioner] and another individual were wanted in Thailand for drug offenses that are covered by the extradition treaty. [Petitioner] was ordered detained by a magistrate judge. * * *

Following an extradition hearing, the magistrate judge determined that the government had established probable cause to sustain the narcotics charges. The court therefore entered an extradition certification, ordering that [petitioner] was extraditable and certifying the matter to the United States Secretary of State to issue a warrant to extradite [petitioner].

Prasoprat v. Benov, 421 F.3d 1009, 1012-13 (9th Cir.2005) (footnote omitted), cert. denied, 546 U.S. 1171, 126 S.Ct. 1335, 164 L.Ed.2d 51 (2006).

The district court then stayed petitioner's " extradition pending the outcome of a petition for writ of habeas corpus[,] ... [and] [o]n December 23, 2002, petitioner

Page 983

filed [his first] Petition for Writ of Habeas Corpus" challenging his extradition. Prasoprat v. Benov, 294 F.Supp.2d 1165, 1168 (C.D.Cal.2003). On November 25, 2003, the district court denied the habeas petition, id. at 1168-72, and petitioner appealed the judgment to the Ninth Circuit Court of Appeals, which affirmed the denial of the habeas petition. Prasoprat, 421 F.3d at 1014-17. In so doing, the Court of Appeals held that " the magistrate judge did not have the authority to refuse to issue a certificate of extradition on humanitarian grounds." Id. at 1016-17. The petitioner then sought certiorari from the United States Supreme Court, which denied his request on February 21, 2006. Prasoprat v. Benov, 546 U.S. 1171, 126 S.Ct. 1335, 164 L.Ed.2d 51 (2006).

Subsequently, on March 9, 2006, petitioner requested the Secretary of State deny his extradition to Thailand on humanitarian grounds, Petition, Exhs. B-C; however, on or about April 26, 2006, the Secretary of State authorized petitioner's extradition to Thailand and signed a surrender warrant. Petition, Exh. D.

DISCUSSION

III

Motion to Dismiss

The petitioner's claims are based solely on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (" the CAT" ). Specifically, petitioner claims the Secretary of State's decision to extradite him to Thailand is " arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law because [petitioner] will face torture" in Thailand due to his " suspected ... drug crimes[,]" which would be " punishable in the United States by less than ten years." Petition at 5.

" The [CAT] was drafted by the United Nations in an effort to ‘ make [more] effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.’ " Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1010 (9th Cir.2000) (" Cornejo-Barreto I " ) (citing CAT, Preamble). The CAT defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person...

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