Avila-Ramos v. Kammerzell
| Decision Date | 11 January 2017 |
| Docket Number | Civil Action No. 16–cv–1221–WJM–KLM |
| Citation | 228 F.Supp.3d 1196 |
| Parties | Mirella Ivonne AVILA–RAMOS, Petitioner, v. John L. KAMMERZELL, United States Marshal for the District of Colorado, and Kenneth Deal, Acting United States Marshal for the District of Colorado, Respondents. |
| Court | U.S. District Court — District of Colorado |
Daniel Joseph Sears, Daniel J. Sears, P.C., Meredith Bartlett Esser, Shira Deborah Kieval, Federal Public Defender's Office, Robert Todd Fishman, Ridley McGreevy & Winocur, P.C., Denver, CO, for Petitioner.
Ian J. Kellogg, U.S. Attorney's Office–Denver, Denver, CO, for Respondents.
ORDER DENYING PETITION FOR HABEAS CORPUS
The United Mexican States ("Mexico") accuse Petitioner Mirella Ivonne Avila–Ramos ("Avila–Ramos") of conspiring to have her husband murdered in Mexico. Very briefly stated, the principal evidence asserted by Mexican authorities against her comprises: (1) the fact that two attempts were made on Avila–Ramos's husband's life (the second one succeeding) and Avila–Ramos was present for both but completely uninjured; (2) text messages between Avila–Ramos and a man with whom she was having an extramarital affair, Arturo Heriberto Herrera Rey ("Herrera"), along with close-in-time text messages in turn between Herrera and the gunman who carried out the murder, all of which tend to show, aside from general motive, that Herrera and the gunman knew details of Avila–Ramos's husband's movements that they likely would not have known unless learned from Avila–Ramos; (3) Herrera's report that Avila–Ramos had expressed a wish that her husband had died in the first attempt on his life; and (4) a Mexican court's conclusion, in the trial of Herrera for the murder, that he had conspired with Avila–Ramos to commit the murder.
Mexico seeks Avila–Ramos's extradition to stand trial for that alleged offense. United States Magistrate Judge Nina Y. Wang ("the Magistrate Judge") certified that Avila–Ramos is extraditable from the United States to Mexico under federal statutes governing extradition and under the extradition treaty between the United States and Mexico, 31 U.S.T. 5059, 1980 WL 309106 ("Extradition Treaty"). (See United States v. Avila–Ramos , 15–mj–1087–NYW, ECF No. 181 (D. Colo. May 6, 2016) ("Certification Order").)1
Avila–Ramos now seeks habeas corpus relief from the Certification Order, invoking the general habeas statute, 28 U.S.C. § 2241. (ECF No. 1.) Avila–Ramos was represented by court-appointed CJA counsel through the briefing on the merits of her habeas petition, although counsel later moved to withdraw because certain of his CJA payment requests had yet to be approved, apparently due to lack of sufficient CJA funds budgeted for this matter. (ECF No. 26 at 4.) The Court granted that motion to withdraw. Soon afterward, however, Avila–Ramos's counsel filed a motion to reconsider this ruling, claiming that he never truly meant to withdraw, but simply wanted to bring the hardship of non-payment to the Court's attention. (ECF No. 33 ¶ 6.) The Court denied reconsideration, expressing its "concerns about the propriety of [counsel's] approach" and otherwise finding "lack of good cause." (ECF No. 37.) Counsel then filed a motion to reconsider the denial of reconsideration (ECF No. 38), which the Court also denied (ECF No. 43). Finally, Avila–Ramos herself filed a Motion for Appointment of Counsel through the Court's civil pro bono program, D.C.COLO.LAttyR 15. (ECF No. 40.) That motion remains pending.
For the reasons explained below, the Court finds that Avila–Ramos is not entitled to habeas relief, and therefore denies her petition. With regard to her Motion for Appointment of Counsel, the Court construes it broadly for appointment of counsel from any source available to the Court (not just from the civil pro bono panel), and grants it, appointing the Federal Public Defender to assist Avila–Ramos to consider her options at this point.
Extradition is governed generally by 18 U.S.C. §§ 3181 –96. The Magistrate Judge thoroughly explained the extradition process (Certification Order at 1–4) and the Court need not repeat that explanation here, except to the extent it becomes relevant to certain arguments addressed below. For present purposes, it is enough to state that the Magistrate Judge's task was to review whether the Government had satisfied the following six requirements:
(1) the court has subject matter and personal jurisdiction; (2) a valid extradition treaty exists between the United States and the foreign requesting state; (3) the required documents were presented in accordance with United States law, translated and duly authenticated by the United States consul; (4) the pending criminal charge in the foreign requesting state is appropriate under the extradition treaty; (5) the Respondent is the person sought; and (6) there is sufficient evidence to establish probable cause that a crime was committed and that the person before the court committed that crime.
(Certification Order at 9.) Assuming the Magistrate Judge finds all elements in favor of the Government, the Magistrate Judge then certifies that the respondent may be extradited, but does not actually order the respondent's extradition—that remains within the Secretary of State's discretion. (Id . at 4.)
Habeas review of the Magistrate Judge's certification does not permit this Court to conduct a de novo review of all elements that the Magistrate Judge examined. Rather, this Court is limited to "[1] determining whether the magistrate judge had jurisdiction, [2] whether the offense charged is within the treaty, and ... [3] whether there was any evidence warranting finding that there was a reasonable ground to believe the accused was guilty." Smith v. United States , 82 F.3d 964, 965 (10th Cir. 1996).
The third element (review of the probable cause determination) is intentionally "narrower" than the task the Magistrate Judge undertakes to decide whether probable cause exists. Peters v. Egnor , 888 F.2d 713, 717 (10th Cir. 1989). Whereas the Magistrate Judge must decide whether the facts presented would "warrant a person of reasonable caution to have the belief that an offense has been or is being committed by" the respondent, Koch v. City of Del City , 660 F.3d 1228, 1239 (10th Cir. 2011), the habeas court applies a "lenient standard" of review, asking only whether "there is any evidence of probable cause," Peters , 888 F.2d at 717 (internal quotation marks omitted; emphasis in original).
Avila–Ramos argues that the Magistrate Judge lacked subject matter jurisdiction because extradition proceedings supposedly were not properly instituted against her. (ECF No. 1 at 30–35; ECF No. 20 at 5, 11–15.) Assuming without deciding that this argument actually addresses subject matter jurisdiction, the Court rejects it. The Court's reasoning requires a certain amount of background on the process of extraditing an individual to Mexico.
The Extradition Treaty contemplates that most extradition proceedings will begin through that Treaty's Article 10, which reads in relevant part as follows:
But Article 10 is not the only way an extradition proceeding may begin. Article 11 establishes a summary procedure by which the requesting party may seek the accused's "provisional arrest," followed by the full Article 10 requirements within 60 days:
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Avila-Ramos v. Kammerzell
...of habeas corpus challenging the extradition certification order, 1 R. 8, which the district court denied, Avila–Ramos v. Kammerzell, 228 F.Supp.3d 1196, 1204 (D. Colo. 2017). In upholding the magistrate judge’s probable cause determination, though, the district court characterized Ms. Avil......