Martin v. Warden, Atlanta Penitentiary
| Citation | 804 F. Supp. 1530 |
| Decision Date | 16 September 1992 |
| Docket Number | Civ. No. 1:92-cv-1762-WCO. |
| Parties | Thomas James MARTIN v. WARDEN, ATLANTA PENITENTIARY, et al. |
| Court | U.S. District Court — Northern District of Georgia |
Richard M. Langway, Office of U.S. Atty., Atlanta, Ga., for Government of Canada and Warden.
W. Bruce Maloy, Maloy & Jenkins, Atlanta, Ga., for Thomas James Martin.
O'KELLEY, Chief Judge.
The captioned case is before the court on petitioner Thomas Martin's motion for expedited review of his amended petition for writ of habeas corpus 9-1, 8-1. The petitioner has also requested that the court issue an order staying any transfer to the Canadian authorities while litigation is pending in this case 10-1. Oral argument was held in this case on Friday, September 4, 1992. After careful review, the court dismisses Martin's amended petition for a writ of habeas corpus for the reasons stated herein.
In December of 1974, Thomas James Martin, an American citizen, was living in Ontario, Canada, as a result of his decision to avoid the draft during the Vietnam War. At 6:40 p.m. on December 13, 1974, it is alleged that Martin drove his car, a small Triumph convertible, into an intersection on a green light. As he did so, three small children allegedly ran into the intersection in front of his car against the red light. One of them, seven-year-old Joseph Bellenie, allegedly was struck by Martin's car and was trapped under the vehicle. Martin stopped his car and got out to look around. The magistrate judge found that Martin negligently failed to discover that the boy was caught under his car even though three eyewitnesses were shouting such information to him. Martin contends that he heard nothing of the kind. Martin then allegedly looked around his car and, seeing nothing but crushed groceries, got back in his car and drove away, without giving his name or address or offering assistance. The boy, still trapped under the car, allegedly was dragged along for approximately 600 feet. He then became dislodged from Martin's car and fell into the street. As Martin continued to drive away, the boy was hit by another car. He ultimately died from these injuries.
Martin contends that he went home and saw on the news that a fatal hit-and-run accident had occurred at that intersection, involving a car whose description matched that of his car. He called his attorneys in the United States and Canada, who advised him to return to the United States immediately. Martin contends that this advice was based on the fact that he had already received a prescheduled reporting date for an amnesty program for draft resisters, and that if he remained in Canada to face charges for the accident, he would miss the deadline and not be eligible for amnesty. Accordingly, it is alleged that he returned to work in Canada on Monday, December 16, driving a different car from the one involved in the accident, and on December 17, he and his family left Canada on a flight which he allegedly had booked on the previous night. They resumed residence in the United States, and Martin has never returned to Canada.
A warrant was issued for Martin's arrest in Canada on December 19, 1974, on the charges of (1) unlawfully causing the death of Joseph Bellenie by criminal negligence, in violation of then section 203 of the Canadian Criminal Code;1 and (2) failing to stop his vehicle and give his name and address and offer assistance after being involved in a motor vehicle accident, in violation of then section 233-2a of the Canadian Criminal Code.2
Article 2 of the Extradition Treaty between the United States of America and Canada of December 3, 1971, which entered into force on March 22, 1976 (TIAS 8237) (the "Extradition Treaty"), allowed persons to be extradited for any of the offenses listed in an attached schedule. That schedule specifically listed murder, assault with intent to commit murder, manslaughter, and wounding, maiming, or assault occasioning bodily harm, but not criminal negligence resulting in death or failure to remain at the scene of an accident. The Protocol Amending the Extradition Treaty with Canada of January 11, 1988, which entered into force on November 26, 1991, deleted the Schedule attached to the Extradition Treaty, and instead allows extradition to be granted for conduct which constitutes an offense punishable under the laws of both countries by imprisonment exceeding one year. Criminal negligence causing death can carry a sentence of up to life imprisonment. Article VIII of the Protocol states that it applies to all cases where the request for extradition is made after the date of entry into force of the 1988 Protocol, regardless of whether the offense was committed before or after that date.
On June 23, 1992, the Canadian Embassy submitted a diplomatic note, Note No. 111, formally requesting Martin's extradition. On June 30, 1992, the magistrate judge issued a warrant for Martin's apprehension pursuant to 18 U.S.C. § 3184, based upon a complaint made under oath by the Assistant United States Attorney on behalf of Canada. Martin was arrested on July 8, 1992, in the Eastern District of Louisiana.
Martin was transferred in custody to the Northern District of Georgia, and on July 10, 1992, a bond hearing was held in Atlanta before Magistrate Judge Feldman; Judge Feldman ordered on July 15, 1992, that Martin be detained without bond. In the Matter of the Extradition of Thomas James Martin, Magistrate Case No. 1:92-M-747 (N.D.Ga.). Martin filed a petition for a writ of habeas corpus in the captioned case, seeking review of the magistrate judge's denial of release on bond pending determination of his extraditability. On August 11, 1992, Judge Feldman held a hearing pursuant to 18 U.S.C. § 3184 to determine Martin's extraditability. On August 24, 1992, Martin was certified to be extraditable; Martin amended his habeas corpus petition to seek review of that decision. This court has already adopted the magistrate judge's report and recommendation that the original habeas corpus petition be dismissed; the court now considers Martin's amended petition for review of the magistrate judge's order of extradition.3
Hill v. United States, 737 F.2d 950, 951 n. 1 (11th Cir. 1984) (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)). The habeas petition is not a writ of error or a means of rehearing what the magistrate judge has already heard and decided. Fernandez, 268 U.S. at 312, 45 S.Ct. at 542; Garcia-Guillern v. United States, 450 F.2d 1189, 1193 n. 1 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). Rather, habeas review "tests only the legality of the extradition proceedings; the question of the wisdom of extradition remains for the Executive Branch to decide." Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir.1965).
In this case, Martin raises two main objections to the magistrate judge's order. First, he contends that there is no probable cause to believe that he is guilty of the offense charged; second, he contends that Canada's effort to extradite him after a delay of over 17 years violates his due process right to a speedy trial under the fifth and sixth amendments to the United States Constitution.
In reviewing the existence of probable cause to sustain the charges against petitioner "or, in other words, the existence of a reasonable ground to believe the accused guilty," our function
Escobedo v. United States, 623 F.2d 1098, 1102 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980) (quoting Garcia-Guillern, 450 F.2d at 1192) (emphasis added). It is not incumbent upon the requesting country to present sufficient evidence in the extradition proceeding to establish the extraditee's guilt beyond a reasonable doubt; it is a "well-entrenched rule" that "extradition procedures are not to be converted into a dress rehearsal trial." Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); see also Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913).
In considering what evidence is sufficient to constitute probable cause in the context of an extradition hearing, "it has been stated that evidence which `tends to obliterate probable cause may be considered but not merely that which contradicts it.'" Freedman v. United States, 437 F.Supp. 1252, 1266 (N.D.Ga.1977) (Freeman, J.) (quoting Shapiro v. Ferrandina, 355 F.Supp. 563, 572 (S.D.N.Y.1973), modified, 478 F.2d 894 (2d Cir.1973)).
Moreover, the question of reliability may come into focus since "the improbability or vagueness of testimony may destroy the probability of guilt"; however, the mere presentation of witnesses who testify as to an opposite version of facts will not. The resolution of such conflicts in evidence must await a trial on the merits.
Id. (citation omitted). See also Cheng NaYuet v. Hueston, 734 F.Supp. 988, 995 (S.D.Fla.1990) ( ), aff'd without op., 932 F.2d 977 (11th Cir.1991).
In support of its request for extradition, the government on behalf of Canada presented statements by eyewitnesses to the incident reflecting the...
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Martin v. Warden, Atlanta Pen
...and was extraditable. Martin filed a petition for writ of habeas corpus. 3 The district court denied Martin's petition in September. 804 F.Supp. 1530 (1992). II. On appeal, Martin raises three arguments. First, Martin contends that the district court erred in finding probable cause to belie......