Martinez v. United States

• Decision Date: 10 July 2015
• Docket Number: No. 14–5860.,14–5860.
• Parties: Avelino Cruz MARTINEZ, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

793 F.3d 533

Avelino Cruz MARTINEZ, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–5860.

United States Court of Appeals, Sixth Circuit.

Argued: March 3, 2015.

Decided and Filed: July 10, 2015.

Rehearing En Banc Granted, Opinion Vacated Oct. 14, 2015.

ARGUED:Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Lynne T. Ingram, United States Attorney's Office, Nashville, Tennessee, for Appellee.ON BRIEF:Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Lynne T. Ingram, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

CLAY, J., delivered the opinion of the court in which GILMAN, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 557–70), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Petitioner Avelino Cruz Martinez (“Petitioner”) appeals from the order of the district court denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is opposing extradition proceedings initiated in June 2013 by the United States on behalf of Mexico based on murder charges arising from a double homicide in a small Oaxacan community that took place on December 31, 2005. For the reasons that follow, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

BACKGROUND

On December 31, 2005, two men were shot in the small community of Santa María Natividad, Ixpantepec Nieves, Silacayoapan in Oaxaca, Mexico. Santa María Natividad has been described in this case as “a very small village where basically everyone knows each other.” (R. 2–17, Flores Alvaro Declaration, PageID 327.) The town has only about two hundred inhabitants. One of the shooting victims, Samuel Francisco Solano Cruz, died as he was being transported to another community for medical treatment. The other victim, Antolín Cruz Reyes, died later in the city of Oaxaca. Two witnesses identified Petitioner as the shooter.

At the time of the shooting, Petitioner was a legal permanent resident of the United States, and had been continuously living and working in this country, with that status, for more than fifteen years. Despite his residence in the United States, Petitioner frequently traveled back to Santa María Natividad, where his family, including his wife and children, lived.

The shooting was followed by two very different legal proceedings, one of them leading to the case before us today. First, on January 12, 2006, the town clerk of Santa María Natividad presided over a meeting between Petitioner's wife and brother, on the one side, and the widow and parents of one of the shooting victims, Solano Cruz, on the other. At the meeting, both families signed an agreement that had been drafted by the “District Court for San Pedro Silacayoapan, Oaxaca.” (R. 2–17, Silacayoapan Agreement, PageID 335.) The agreement identified Petitioner as the person “who committed the homicide” and provided that his family would pay 50,000 pesos to the family of Solano Cruz. The agreement concluded with the following language:

The Town Clerk, for his part, as an authority of the community, asks that both parties respect these agreements, which were issued in the district to which we belong. He also asks that none of the parties in this matter holds a grudge, as we maintain respect towards one another in our community, especially because this unfortunate act took place between families. He asks that once the parties accept this agreement and commit to enact its terms, that the matter shall be closed.

(Id. at 334–35.) Petitioner's wife understood “that the agreement resolved the case and that Avelino would not be charged with any crime.” (R. 2–17, Flores Alvaro Declaration at 328.) She explained that the family of the other victim, Antolín Cruz Reyes, “has never claimed that Avelino committed any crime against Cruz Reyes.” (Id. at 327.)

In an entirely separate series of events, and unbeknownst to Petitioner and his family, a cousin of Solano Cruz who was not a party to the agreement reported the homicide to the attorney general for the State of Oaxaca on January 16, 2006. The cousin, a witness to the shooting, gave the state authorities a first-hand account of what happened. He described how he and Solano Cruz drove to the town center to invite the municipal authorities to a goat roast the following day. The two men found the officials they sought watching a music performance from a grandstand. Shortly after they took their seats, the pair was approached by Petitioner. According to the cousin's statement, Petitioner shook hands with Solano Cruz, then, while still grasping his hand, drew out a gun, yelled “son of a bitch,” and shot Solano Cruz at close range. Cruz Reyes, who was next to Solano Cruz and tried to assist him by putting his arms around him, was also hit. A deputy municipal official who was also present at the scene gave a corroborating statement, and added that Petitioner fled the scene in his truck, which had Texas plates. Based on these statements and the investigation that followed, on February 23, 2006, the Oaxacan authorities issued a warrant for Petitioner's arrest on charges of homicide with “unfair advantage” resulting from his use of a firearm.

Meanwhile, Petitioner returned to the United States, where he continued to live openly under his own name. His landlord verified in a letter submitted to the district court that Petitioner had lived in the same apartment in Lebanon, Tennessee since April 2006. The uncontested evidence below established that Petitioner's family in Santa María Natividad was never informed of the warrant for his arrest. Petitioner's wife and children continued to live in Santa María Natividad until 2007, when they left to join Petitioner in the United States, in part because of harassment from the family of Solano Cruz. Even after 2007, Petitioner's brother and father continued to live in the community and remained there as of the commencement of the extradition proceedings in 2013. Yet in all this time, Petitioner's family was never informed of a warrant or of any pending case against Petitioner.

There is no indication in the record of when the Mexican government first learned of Petitioner's whereabouts in the United States. No obstacle to discovering his location has been identified, and it was common knowledge in the tight-knit community of Santa María Natividad that Petitioner lived and worked in the United States. It is more accurate to say that despite the existence of a variety of avenues for learning of Petitioner's location—whether by communication with his family or acquaintances in Santa María Natividad, or by simple inquiry or background check within the United States—the Mexican government made no effort that is reflected in the record of these proceedings to search for him or to obtain his extradition for more than six years.

In an unexplained turn of events, it was the United States government that next followed up on the Mexican arrest warrant. On September 11, 2009, more than three and a half years after the shooting, a U.S. Consular Official contacted the Silacayoapan court to inquire about the status of the warrant. The court responded that the warrant was still “pending and executable.” (R. 2–13 Silacayoapan Court Document, PageID 250–51.) The record does not reflect that any further action was taken. The U.S. government has refused to disclose any records related to the 2009 inquiry.

On May 21, 2012, Mexico submitted a diplomatic note invoking the “urgency” clause of the U.S.-Mexico extradition treaty (“1978 Treaty”) to request Petitioner's provisional arrest. See Extradition Treaty, U.S.-Mex., art. 11, May 4, 1978, 31 U.S.T. 5059. The note explained that the “[t]he URGENCY to present the request ... is justified by the fact that AVELINO CRUZ MARTINEZ has been located” at a given address in Lebanon, Tennessee and that “[i]t is feared that he may move elsewhere and his whereabouts will become unknown.” (R. 2–6, Initial Extradition Request, PageID 80.) In October 2012, months after Mexico submitted its request for Petitioner's provisional arrest, both the United States and Mexico issued posters identifying Petitioner as wanted on murder charges in Mexico. No attempt was made to arrest Petitioner in 2012.

During this period, Petitioner, who had obtained U.S. citizenship in October 2010, was working to obtain lawful permanent resident status for his wife and children. In late 2012 or early 2013, Petitioner made a number of short trips to Mexico to meet with U.S. consular officials there to obtain the necessary immigration waivers for his family. During these multiple trips, neither Mexican nor U.S. authorities took any steps to detain him or to inform him of the pending warrant and extradition request; nor was he prevented from returning to the United States.

On June 11, 2013, acting on behalf of the Mexican government, the U.S. government filed a complaint in the Middle District of Tennessee seeking Petitioner's provisional arrest for the purposes of extradition. Petitioner was finally arrested on June 21, 2013, and Mexico delivered its formal extradition request on August 20, 2013, more than seven and a half years after the shooting was reported to the Mexican authorities.

Petitioner was certified as extraditable under the terms of the 1978 Treaty by the magistrate judge on January 17, 2014. He thereafter filed a petition for a writ of habeas corpus in the district court challenging the certification of extraditability. The district court denied his petition on July 10, 2014. This timely appeal followed.

Petitioner challenges the denial of his habeas petition on four grounds. First, invoking Article 7 of the 1978 Treaty, which prohibits extradition where prosecution for the crimes charged would be barred due to the “lapse of time” according...