Graham v. Young

• Decision Date: 30 March 2018
• Docket Number: No. 16-4260, No. 16-4448,16-4260
• Parties: John GRAHAM Petitioner–Appellant/Cross Appellee v. Darin YOUNG, Warden Respondent–Appellee/Cross Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

886 F.3d 700

John GRAHAM Petitioner–Appellant/Cross Appellee

v.Darin YOUNG, Warden Respondent–Appellee/Cross Appellant

No. 16-4260

No. 16-4448

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2017

Filed: March 30, 2018

John Graham, Sioux Falls, SD, Pro Se.

Paul David Wolf, Denver, CO, for Petitioner–Appellant.

Paul Sanford Swedlund, ATTORNEY GENERAL'S OFFICE, Pierre, SD, for Respondent–Appellee.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

LOKEN, Circuit Judge.

John Graham was extradited from Canada and then convicted of felony murder in violation of South Dakota Codified Laws §§ 22-16-9 and 22-19-1. The state courts upheld his conviction on direct appeal and denied post-conviction relief. Graham filed a petition for a federal writ of habeas corpus, asserting various claims. See 28 U.S.C. § 2254. The district court¹ denied relief but granted a certificate of appealability on Graham's claim that his conviction violated the "dual criminality" provision of the Treaty on Extradition between the United States of America and Canada (the Treaty) because felony murder is not a crime in Canada. Graham appeals, arguing the state courts lacked jurisdiction because felony murder is not a crime in Canada. The State cross-appeals the district court's ruling that he has standing to challenge this alleged Treaty violation. Reviewing these issues de novo , we affirm.

I. Background

In February 1976, Anna Mae Aquash's body was discovered in a remote area in South Dakota. She had been shot in the head. In 2003, Graham was indicted in federal court under the Indian Major Crimes Act for the premeditated murder of Aquash. See 18 U.S.C. § 1153. The United States requested that Graham be extradited from Canada to be prosecuted on this charge. In 2007, the Court of Appeal for British Columbia affirmed a lower court's decision granting extradition. United States of America v. Graham, 2007 BCCA 345. Graham was extradited from Canada to South Dakota and the federal prosecution began. After extended litigation, we affirmed dismissal of the federal premeditated murder charge because Graham is a Canadian Indian, and the indictment failed to allege his Indian status, as 18 U.S.C. § 1153 requires. United States v. Graham, 572 F.3d 954, 956 (8th Cir. 2009). Graham remained in custody in South Dakota. In 2009, he was indicted by a Pennington County grand jury on state charges of premeditated murder and felony murder, with a predicate felony of kidnapping.

Article 2 of the Treaty, as amended, provides that "[e]xtradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment."² Article 2 incorporates the international law doctrine of dual criminality—"an accused can be extradited only if the alleged criminal conduct is considered criminal under the laws of both the surrendering and requesting nations." Murphy v. United States, 199 F.3d 599, 602 (2d Cir. 1999) (quotation omitted). Article 12(1) of the Treaty provides that "[a] person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted" unless "[t]he requested State has consented to ... detention, trial, punishment for an offense other than that for which extradition was granted [and] such other offense is covered by Article 2."³ Article 12(1) incorporates the "rule of specialty" adopted by the Supreme Court in United States v. Rauscher, 119 U.S. 407, 422–23, 7 S.Ct. 234, 30 L.Ed. 425 (1886) —a defendant may only be tried in the requesting country for the offense for which extradition was granted. As is common, Article 12(1)(iii) also provides that the surrendering country may waive that Treaty limitation.

Before Graham's trial, the United States sent a diplomatic request to Canada for consent to try Graham on both South Dakota charges. In February 2010, the Canadian Minister of Justice replied:

Consent to Waiver of SpecialtyArticle 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America United States of America v. John Graham

Having regard to the request from the United States of America dated December 18, 2009, (Diplomatic Note No. 852) and to the provisions of sub-paragraph 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America , I hereby consent to the detention, prosecution and, if he is convicted, punishment of John Graham with respect to the offences which are set forth in the Indictment, No. 09-3953, filed on September 9, 2009, in the Seventh Circuit Court, County of Pennington, namely:

Count 1: Murder while in the Commission of any felony namely kidnapping, in violation of South Dakota Codified Law 22-16-9 and 22-19-1; and

Count 3: Premeditated Murder, in violation of South Dakota Codified Law 22-16-4.

Graham was then tried. The South Dakota jury convicted him of felony murder and acquitted him of premeditated murder. He was sentenced to life in prison. On appeal, he argued the trial court lacked jurisdiction to prosecute him for felony murder because it was a different crime than the premeditated murder charge for which he was extradited. The South Dakota Supreme Court rejected this "rule of specialty" argument based on the explicit Canadian Consent to Waiver of Specialty. State v. Graham, 815 N.W.2d 293, 299–301 (S.D. 2012).

Graham then filed a state court application for post-conviction relief, arguing that his conviction violated the "dual criminality" provision in Article 2 of the Treaty because felony murder is not a crime in Canada. The Seventh Judicial Circuit Court concluded this claim was barred by res judicata because Graham had raised it on direct appeal. Graham sought to appeal pro se but the Supreme Court of South Dakota dismissed his motion for a certificate of probable cause because he did not serve a copy on the State, "a prerequisite to the Court's jurisdiction to consider said motion pursuant to SDCL 21-27-18.1."

Graham then filed this timely petition for a federal writ of habeas corpus. In the claim at issue, he asserts that the South Dakota trial court lacked jurisdiction to try him because felony murder is not a crime in Canada and therefore is not an extraditable offense under Article 2 of the Treaty. A federal writ of habeas corpus will issue for a person who is in state custody "in violation of the ... treaties of the United States." 28 U.S.C. § 2254(a).

II. Discussion

Graham argues this appeal concerns the doctrine of dual criminality reflected in Article 2, not the rule of specialty reflected in Article 12(1). But we conclude the dual criminality issue turns on the legal effect of the Consent to Waiver of Specialty that United States diplomatic officials obtained from the Canadian Minister of Justice before Graham was convicted of felony murder in violation of South Dakota law.

Our analysis begins with Graham's rule of specialty argument rejected by the Supreme Court of South Dakota on direct appeal, an issue that he exhausted but did not pursue in his federal habeas corpus petition. In Rauscher, a defendant extradited from Great Britain for prosecution on a charge of murder in the United States challenged his conviction in this country for a different crime, cruel and unusual punishment. 119 U.S. at 409, 7 S.Ct. 234. Great Britain had previously claimed that the extradition treaty between Great Britain and the United States incorporated the doctrine of specialty. Id. at 415–16, 7 S.Ct. 234. After reviewing the treaty's text and history, international practice, and other relevant authorities, the Supreme Court agreed. Id. at 420–23, 7 S.Ct. 234. The Court noted that treaties may "contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other ... which are capable of enforcement as between private parties in the courts of the country." Id. at 418, 7 S.Ct. 234 (quotation omitted). The Court held that "a person who has been brought within the jurisdiction of the [United States] court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition." The Court concluded that a United States treaty made in accordance with Article II, Section 2 of the Constitution, though brought into being by the executive branch, is made part of "the supreme Law of the Land" by Article VI and may be enforced by the judicial branch. Id. at 430–31, 7 S.Ct. 234.

In rule of specialty cases, we have construed Rauscher as allowing an extradited individual to raise whatever objections to his prosecution the surrendering country might have, so long as "the surrendering state would regard the prosecution at issue as a breach" of the extradition treaty. United States v. Lomeli, 596 F.3d 496, 502 (8th Cir. 2010) (quotation omitted); see Leighnor v. Turner, 884 F.2d 385, 389 (8th Cir. 1989) ; United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987) ; United States v. Jetter, 722 F.2d 371, 373 (8th Cir. 1983). Some circuits construe Rauscher more narrowly, concluding that a defendant "would only have prudential standing to raise the claim that his sentence violated the terms of his extradition if the [surrendering country] first makes an official protest." United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 800, 193 L.Ed.2d 724 (2016). There is a circuit conflict on this issue. See Leighnor, 884 F.2d at 388 n.4 (collecting cases).

Dicta in United States v. Alvarez–Machain, 504 U.S. 655, 667, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), noted that, in Rauscher, "no importance was attached to whether or not Great Britain had protested the prosecution of Rauscher for the crime...