Nezirovic v. Holt

• Decision Date: 13 March 2014
• Docket Number: Civil Action No. 7:13cv428.
• Citation: 990 F.Supp.2d 606
• Court: U.S. District Court — Western District of Virginia
• Parties: Almaz NEZIROVIC, Petitioner, v. Gerald S. HOLT, United States Marshall, Western District of Virginia and Bobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents.

990 F.Supp.2d 606

Almaz NEZIROVIC, Petitioner,

v. Gerald S. HOLT, United States Marshall, Western District of VirginiaandBobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents.

Civil Action No. 7:13cv428.

United States District Court,

W.D. Virginia,

Roanoke Division.

Signed March 13, 2014.

Fay Frances Spence, Federal Public Defenders Office, Roanoke, VA, for Petitioner.

Elizabeth G. Wright, United States Attorneys Office, Harrisonburg, VA, Timothy J. Heaphy, United States Attorneys Office, Roanoke, VA, for Respondents.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Petitioner, Almaz Nezirovic, is currently in the custody of the United States Marshal pursuant to a Certification of Extraditability entered by Magistrate Judge Robert S. Ballou on September 16, 2013, 2013 WL 5202420 (the “Extradition Order”). The Extradition Order authorizes Nezirovic's extradition to Bosnia and Herzegovina (“Bosnia”) for alleged war crimes against civilians, occurring from April through June 1992 during the Bosnian War. After entry of the Extradition Order, Nezirovic, by counsel, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 challenging the Extradition Order.¹ For the reasons set forth below, the petition is DENIED.

I.

Nezirovic is a citizen of Bosnia, who entered the United States in 1997 as a refugee. In April 1992, after Serbian troops attacked Nezirovic's hometown of Derventa, Nezirovic joined a paramilitary group, the Croatian Defense Council (“the HVO”) and became a prison guard at the Rabic prison camp in Derventa.

On January 12, 1993, the Doboj Police Department of Bosnia issued a Criminal Report against Nezirovic (“1993 Criminal Report”), charging him with committing war crimes against civilians, in violation of Article 142, paragraph 1 of the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY”). ² The 1993 Criminal Report alleged that, during his time as a prison guard, Nezirovic physically abused, humiliated, and traumatized unarmed civilian prisoners, causing severe personal injury.³ On May 28, 2003, the Investigative Judge of the District Court of Doboj issued a warrant for Nezirovic's arrest.

On July 9, 2012, Bosnia submitted a formal request to the United States Department of State for the arrest, extradition and surrender of Nezirovic. In response, on July 16, 2012, the United States filed an Extradition Complaint, seeking an order to extradite Nezirovic to Bosnia, pursuant to the treaty between the United States and the Kingdom of Servia ⁴ for the Mutual Extradition of Fugitives from Justice (“the Extradition Treaty”) ⁵ and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”).⁶ The Extradition Complaint alleged that Nezirovic committed war crimes against civilians, including torture and inhuman treatment, in violation of Article 142, paragraph 1 of the Criminal Code of the SFRY, which was in effect at the time of the charged crimes and remains in effect in Bosnia today. Then, on July 30, 2012, Bosnia provided supplemental documentation in support of its application for extradition, including statements of twenty-one witnesses alleging that Nezirovic committed acts of torture.⁷

After reviewing the Extradition Complaint and conducting a hearing, the magistrate judge issued the Extradition Order on September 16, 2013, certifying Nezirovic as subject to extradition under 18 U.S.C. § 3184. Nezirovic filed a petition for a writ of habeas corpus on September 18, 2013. Nezirovic challenges the Extradition Order on two grounds: (1) the applicable statute of limitations has expired, and (2) his alleged offenses are political. The United States responds that the extradition is not barred by any statute of limitations and Nezirovic's alleged conduct does not fall within the political offense exception. For the following reasons, the court finds that extradition is not barred by the statute of limitations, the political offense exception does not apply to the alleged offenses, and Nezirovic's petition must be denied.

II.

There is no direct appeal for an individual found to be extraditable by a magistrate judge. See18 U.S.C. § 3184 (A magistrate judge has jurisdiction to review the evidence to determine whether an extradition request can be sustained.); see also Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 64 L.Ed. 616 (1920). Rather, a petition for a writ of habeas corpus is the only available means to challenge the magistrate judge's finding. Further, a limited scope of review applies to extradition rulings and the court is not free “to rehear what the magistrate has already decided.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925); see Ordinola v. Hackman, 478 F.3d 588, 598–99 (4th Cir.2007) (noting that, “although the district court was free to make its own legal conclusions so long as they were supported by the magistrate judge's factual findings, it was not free to ignore or misinterpret those findings in an effort to reach a desired legal conclusion”).

“[H]abeas 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 of the asserted crimes.” Ordinola, 478 F.3d at 598–599 (quoting Fernandez, 268 U.S. at 312, 45 S.Ct. 541); see also Sacirbey v. Guccione, 589 F.3d 52, 63 (2d Cir.2009). “[T]he political offense question is reviewable [in habeas review] ... as part of the question of whether the offense charged is within the treaty.” Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.1986).

In the context of this habeas petition, the magistrate judge's factual findings must be reviewed under a clearly erroneous standard. See Ordinola, 478 F.3d at 598 (citing Ornelas v. Ruiz, 161 U.S. 502, 509, 511, 16 S.Ct. 689, 40 L.Ed. 787 (1896)). However, his legal determinations and mixed determinations of law and fact must be reviewed de novo. See Quinn, 783 F.2d at 791. Treaty interpretation presents a question of law, subject to de novo review. Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir.1994). Likewise, the determination of foreign law is a question of law. See United States v. Mitchell, 985 F.2d 1275, 1280 (4th Cir.1993) (“The determination of foreign law is a question of law to be established by any relevant source, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”).

In the Extradition Order, the magistrate judge found: (1) that there is an extradition treaty in force between the United States and Bosnia and that the court had jurisdiction in the matter; (2) that Nezirovic is the person whose extradition Bosnia requested; (3) that Nezirovic has been charged with war crimes against civilians; (4) that the charged crimes are extraditable under the Extradition Treaty; and (5) that the evidence establishes probable cause to believe Nezirovic committed the charged offense. In accordance with Ordinola, the court finds that the magistrate judge had jurisdiction,⁸ the crimes fall within the Extradition Treaty,⁹ and sufficient grounds existed to support the magistrate judge's finding that the evidence established probable cause that Nezirovic committed the charged offenses.¹⁰See Ordinola, 478 F.3d at 598.

The magistrate judge also found that the statute of limitations and political offense exception defenses raised by Nezirovic did not preclude certification to the Secretary of State for extradition to Bosnia.

III.

As stated previously, Nezirovic raises two principal arguments in support of his petition: (1) extradition is barred because the statute of limitations has expired; and (2) his alleged war crimes were political offenses exempt from extradition. These questions are either purely legal, or mixed questions of law and fact, and, therefore, the court reviews the magistrate judge's findings de novo.

A. Statute of Limitations

Nezirovic makes two arguments in support of his claim that extradition is barred because the statute of limitations has expired. Nezirovic first argues that the Torture Act cannot provide the applicable limitation period because it did not exist in 1992 and applying the Torture Act's limitation period would violate constitutional prohibitions against ex post facto laws. Second, Nezirovic argues that the 1993 Criminal Report filed in Bosnia did not toll the running of any applicable limitation period.¹¹

The United States argues that the statute of limitations set forth in the Torture Act applies and does not violate ex post facto laws. It further argues that there is no limitation period under the Torture Act because the charged crimes involved torture with a serious risk of physical injury. See18 U.S.C. §§ 3286(b) & 2332b(g)(5)(B)(i) (The Torture Act, 18 U.S.C. § 2340A, has an eight year limitation period for the prosecution of torture, but no limitation where the offense charged “resulted in or created a foreseeable risk of death or serious bodily injury to another.”). The United States also argues that the 1993 Criminal Report tolled any applicable statute of limitations.

1. The Torture Act's Statute of Limitations

Article VII of the Extradition Treaty bars extradition if the applicable statute of limitations in the United States has expired.¹² Nezirovic asserts that, in determining what statute of limitations is applicable under United States law, “the court must look to the substantive offense under United States law—at the time the offense occurred—which is most closely analogous to the charged offense, and apply the statute of limitations applicable to that offense.” Br. in Supp. of Petition, Dkt. No. 20, at 8. Because the 1994 Torture Act, 18 U.S.C. 2340, et seq., post-dated Nezirovic's alleged 1992 war crimes, Nezirovic argues it cannot provide the applicable...