Hoxha v. Levi
| Decision Date | 25 May 2005 |
| Docket Number | No. Civ.A. 05-1211.,Civ.A. 05-1211. |
| Citation | 371 F.Supp.2d 651 |
| Parties | Krenar HOXHA, Petitioner, v. Troy LEVI, Respondent. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Thomas P. Pfender, Philadelphia, PA, for Petitioner.
Paul Mansfield, U.S. Attorney's Office, Philadelphia, PA, for Respondent.
Krenar Hoxha ("Hoxha"), a naturalized citizen living in the United States with his wife and child, is due to be extradited to his country of birth, Albania, where he will stand trial for murder. Presently before this Court is his habeas corpus petition, which seeks to block that extradition. For the following reasons, the petition is denied.
Hoxha was born on March 26, 1970 in Albania and became a naturalized United States citizen on January 17, 2002. Albania seeks to try Hoxha for the murders of husband and wife Ilmi and Roza Kasemi, and their son, Eltion Kasemi. (Compl.Ex. B.) According to the Complaint, Ilmi Kasemi and Hoxha's sister, Mimoza, were involved in a relationship which ended because Hoxha's parents disapproved of it. (Compl. ¶ 4(a).) Hoxha soon learned that, although both Ilmi and Mimoza married other individuals, the two had rekindled their love affair. (Id. ¶ 4(a-c).) Seeking revenge, Hoxha broke into Ilmi's home and shot Ilmi, Roza, and Eltion, killing all three. (Id. ¶ 4(d-f).) Ilmi's surviving daughter, Matilda, witnessed the shootings. (Id. ¶ 4(g).) After the killings, Hoxha rushed to his cousin's home and asked him to hide the murder weapon, which was later recovered by Albanian police. (Id. ¶ 4(h).) Ballistics confirmed that the firearm seized by the police matched the bullets found at the crime scene. (Id. ¶ 4(i).)
Hoxha was tried and convicted in absentia by the Court of First Instance of Judicial Circle Fier ("Court of First Instance"). (Habeas Pet. ¶ 4; see also Statement of Albanian Prosecutor General Theodhori Sollaku, attached to Compl. as Ex. B.) Although he was sentenced to life in prison, his conviction was overturned by the Appeal Tribunal of Vlore because he did not receive notice for the aggravated circumstances. (Compl. Ex. B; see also Gov't Resp. in Opp'n to Def.'s Habeas Pet. Ex. B [hereinafter "Gov't Resp."].) After the second examination of the case, Hoxha was sentenced to twenty-two years, a sentence that was later reduced to fourteen years and eight months. (Compl.Ex. B.) The case ended up back before the Appeal Tribunal of Vlore, which overruled the decision of the Court of the First Instance Court and returned the case to the same court but with another panel. Eventually the case came before the Albanian Supreme Court, which sent it back for retrial in the same court but with different judges. The record indicates that the latest ruling occurred on June 25, 2004, when the Appeal Tribunal of Vlore ordered a retrial in the Court of First Instance but with another group of judges, due to Hoxha's absence from his first trial. Specifically, the Appeal Tribunal of Vlore noted that "[Hoxha] was denied the constitutional right to be called and to attend the proceedings," thereby rendering "the procedural acts of the adjudication of the first instance and the decision [ ] absolutely invalid thus making the entire judicial process inexistent [sic]." (Id.; see also Habeas Pet. ¶ 5 & Ex. B.)
Albania seeks Hoxha's extradition pursuant to an extradition treaty between the United States and Albania (the "Extradition Treaty"). Under the terms of the treaty, which has been in force since 1935, the two countries have agreed to "upon requisition duly made as herein provided, deliver up to justice any person who may be charged with, or may have been convicted of, any of the crimes or offenses specified in Article II of the present treaty...." Persons charged with or convicted of murder are explicitly subject to extradition. (Id., Art. II, 1.) On October 1, 2004, the Albanian Embassy submitted a diplomatic request with supporting documentation to the United States seeking Hoxha's extradition. This constitutes "requisition duly made as herein provided." On November 9, 2004, Magistrate Judge Thomas J. Reuter of the Eastern District of Pennsylvania issued a warrant for Hoxha's arrest, and Hoxha was arrested the next day.
On January 19, 2005 and February 4, 2005, extradition proceedings were held before the Honorable Jacob P. Hart, a magistrate judge of this Court, with Hoxha represented by counsel. During the first round of proceedings, Judge Hart examined two issues. First, he determined that the Extradition Treaty was valid based upon representations from the United States government that Albania has honored the terms of the treaty and that the State Department also intends to adhere to its terms. (R. at 3 (Jan. 19, 2005 Extradition Hr'g Tr.).) Second, he turned to the question of whether Albania had probable cause to believe Hoxha is guilty of the crimes charged. After setting forth the legal standards of probable cause, Judge Hart expressed serious concerns over the failure of the Albanian authorities to present a single sworn document that would help establish probable cause. (Id. at 4-6.) Judge Hart therefore provided the Government two additional weeks to develop evidence sufficient to establish probable cause, without which he would order Hoxha's release. (Id. at 11.) When the proceedings continued two weeks later, Judge Hart found that Hoxha was charged with extraditable offenses within the meaning of the Extradition Treaty, and that, based in part of the newly-provided affidavit of Albanian prosecutor Ardian Visha, probable cause existed to believe that Hoxha committed the crimes for which Albania sought his extradition. A copy of Judge Hart's Order permitting extradition was to be forwarded to the Secretary of State and Hoxha was committed to the custody of the United States Marshal pending disposition by the Secretary of State. (Gov't Resp. Ex. A at 3-4.) Hoxha filed his habeas petition on March 13, 2005, and the Government was enjoined from deporting Hoxha until further order of this Court. (See Court Order of Mar. 16, 2005.)
A foreign country may seek extradition from the United States only if there is a treaty between the requesting country and the United States. 18 U.S.C. § 3181 (1976); Matter of Extradition of Singh, 123 F.R.D. 127, 129 (D.N.J.1987). The requesting country must submit its request to a state or federal court, which then determines whether the fugitive is subject to extradition and, if so, orders the fugitive's commitment and certifies the supporting record to the Secretary of State. 18 U.S.C. § 3184. A fugitive is subject to extradition if probable cause exists to believe that the defendant is guilty of the crime charged. Sidali v. INS 107 F.3d 191, 195 (3d Cir.1997). Ultimately, however, the decision to actually extradite a fugitive lies within the power of the executive branch, as it is the Secretary of State who makes the final decision whether to surrender the fugitive to the requesting state. Singh, 123 F.R.D. at 129-30 () (emphasis in original) (citing Escobedo v. United States, 623 F.2d 1098, 1105 & n. 20 (5th Cir.1980)); see also Sidali, 107 F.3d at 194 (). In sum, as explained more fully below, the judicial branch and the executive branch have clearly delineated functions in the extradition process; the judicial branch determines whether the individual is subject to extradition while the executive branch is charged with the decision of whether to extradite.
An extradition order is not a final order of a district court and therefore may not be appealed under 28 U.S.C. § 1291. See United States v. Bogue, Crim. A. No. 98-572-M, 1998 WL 966070, at *1 (E.D.Pa. Oct. 13, 1998). Although an extradition order may be challenged via a habeas corpus petition, the scope of review is extremely limited. "Habeas corpus is available only to inquire whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925); see also Sidali, 107 F.3d at 195. It is within this framework that this Court shall consider Hoxha's habeas petition.
Wisely, Hoxha does not attack the jurisdiction of the magistrate judge. A magistrate judge may conduct extradition proceedings if authorized to do so by a court of the United States. 18 U.S.C. § 3184. Local Rule 72.1 of the Eastern District of Pennsylvania provides this authorization. Bogue, 1998 WL 966070, at *1. Nevertheless, Hoxha makes three arguments that must be addressed. First, he claims that probable cause did not exist. Second, Hoxha asserts that the Extradition Treaty between the United States and Albania is no longer in force and, therefore, that the United States is under no duty to grant Albania's request for Hoxha's surrender. Hoxha concedes that,...
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