Whelan v. Noelle

• Citation: 966 F.Supp. 992
• Decision Date: 13 February 1997
• Docket Number: Civil No. 96-1419-RE.
• Parties: Francis S. WHELAN, Petitioner, v. Dan NOELLE, Respondent.
• Court: U.S. District Court — District of Oregon

966 F.Supp. 992

Francis S. WHELAN, Petitioner, v. Dan NOELLE, Respondent.

Civil No. 96-1419-RE.

United States District Court, D. Oregon.

February 13, 1997.

Christopher J. Schatz, Assistant Federal Public Defender, Portland, OR, for Petitioner.

David L. Hattrick, Deputy District Attorney, Portland, OR, for Respondent.

OPINION

REDDEN, District Judge.

Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). Petitioner contends that he is being unlawfully confined in the Multnomah County Detention Center as a result of defective extradition proceedings originating from the Commonwealth of Puerto Rico. Petitioner challenges both the legality of the extradition proceedings and his continued confinement pending a final determination of the legality of those proceedings.

Respondent contends that the petitioner is not entitled to relief in this court because he has not exhausted his available state remedies, the extradition proceedings are lawful, and petitioner is not entitled to release from confinement pending a determination of legality of the extradition proceedings.

BACKGROUND

Petitioner was arrested in Multnomah County, Oregon on June 13, 1996 on a fugitive warrant issued by the United States District Court for the District of Puerto Rico. (Petitioner's Memorandum in Support of Habeas Corpus (hereafter "Petitioner's Memo." at 1.) The fugitive warrant was issued on April 9, 1996, on the grounds that a complaint had been filed in that court charging that petitioner did "flee Puerto Rico with intend [sic] to avoid prosecution and custody after committing the crime of illegal deprivation of custody." (Petitioner's Memo., Exh. F.) The fugitive warrant itself was based upon a February 8, 1996, Commonwealth (San Juan) District Court warrant and complaint, which charged petitioner as follows:

"Francis S. Wheelan [sic] Guzman, on or around November 28, 1988, in Rio Piedras, Puerto Rico, within the jurisdiction of the Superior Court of Puerto Rico, San Juan, Part, illegally, voluntarily, knowingly, with malice and criminal intent, without being entitled to do so, deprived Damaris Ramos Nieves (mother of the minor Fadua Idris Wheelan Ramos), who was awarded legitimate custody of said minor child on November 28, 1988, by the Hon. Judge Ronaldo Rodriguez Osorio of the Superior Court of Bayamon in Civil Case RF-86-4883) [of said child] by removing her from the jurisdiction of the Commonwealth of Puerto Rico.

Said action has continued since November 28, 1988, and the defendant has refused to return the minor child to her mother, in violation of the December 28, 1988, order issued by the Hon. Judge Ronaldo Rodriguez Osorio instructing the defendants to return forthwith the aforementioned child Fadua Idris Wheelan Ramos to her mother." (Petitioner's Memo., Exhs. D, E.)

On June 17, 1996, at petitioner's first appearance in Oregon state court, a Fugitive Complaint was filed pursuant to O.R.S. 133.805, charging petitioner with being a fugitive from justice on the basis of the charge set forth above. (Petitioner's Memo. at 6, Exh. H.) On June 26, 1996, the Governor of the Commonwealth of Puerto Rico issued an extradition request to the Governor of Oregon, seeking petitioner's extradition on the basis that he "was present in this Commonwealth at the time of the commission of" the crime of Unlawful Deprivation of Custody. (Petitioner's Memo, Exh. K.) On July 5, 1996, a Governor's Warrant of Arrest and Extradition was issued by the Governor of the State of Oregon based upon the extradition request from the Puerto Rico. (Petitioner's Memo., Exh. I.) Petitioner was served with the Governor's Warrant on July 19, 1996. (Petitioner's Memo. at 6.)

On July 31, 1996, petitioner filed a petition for writ of habeas corpus in state court contesting his incarceration and extradition from Oregon to Puerto Rico. (Petitioner's Memo., Exh. J.) There, petitioner alleged that his incarceration was unlawful because (1) he is not a fugitive from justice; (2) he did no acts in Oregon or elsewhere so as to occasion the commission of the crimes charged in Puerto Rico, and (3) the Governor's Warrant was defective in that it was not properly supported by an indictment, nor by an information and affidavit(s) as required by O.R.S. 133.753. (Id.) On July 26, 1996, the Multnomah County Circuit Court issued an Order to Appear and Show Cause as to why the writ should not be granted. (Petitioner's Memo. at 8.)

On August 12, 1996, the Governor of Puerto Rico issued an "Amended and Supplemental Requisition," charging that petitioner "although not present in this Commonwealth, committed acts intentionally resulting in" the offense of unlawful deprivation of custody, and "may now be found in the State of Oregon." (Petitioner's Memo., Exh. N.) The Amended Requisition relied upon the same documents supplied in support of the original requisition. (Id.) On August 15, 1996, the Governor of the State of Oregon issued an "Amended Governor's Warrant of Arrest and Extradition," which contained essentially the identical language contained in the original Governor's Warrant.¹ (Petitioner's Memo., Exh. M.)

A hearing was held in state court on petitioner's petition for writ of habeas corpus on August 28, 1996. (Petitioner's Memo. at 9.) At that hearing, the Hon. Robert W. Redding found, beyond a reasonable doubt, that petitioner was not a fugitive from the Commonwealth Puerto Rico. (State Court Trial Transcript at 68.) The petition for writ of habeas corpus was denied, however, based on a finding that the Amended Governor's Warrant was supported by due and valid documents of extradition. (Petitioner's Memo., Exh. O.) Extradition was stayed, however, for a period of 30 days to allow petitioner an opportunity to file a notice of appeal, with the stay to continue in effect through the course of appellate proceedings. (Id.)

Petitioner filed a notice of appeal, and the appeal from the denial of his petition for writ of habeas corpus remains pending before the Oregon Court of Appeals. (Petitioner's Memo. at 10.) According to counsel for the petitioner, a decision on the appeal will most likely not be forthcoming until June or July of this year. (Id.)

Although the record is not clear as to the exact timing, apparently at petitioner's original court appearance on July 17, 1996, bail was set in the amount of $2,000,000. The amount of bail was apparently based upon the $200,000 bail set in the February 8, 1996 Complaint entered by the District Court of the Commonwealth of Puerto Rico.² At the conclusion of the hearing on petitioner's state habeas corpus petition, Judge Redding declined to consider a reduction in the amount of bail. (Transcript at 92.)

On or about November 25, 1996, petitioner filed a pro se "Motion for Review of Bond" in state court. (Petitioner's Response to Motion to Dismiss, Exh. A.) This motion was denied without hearing on December 3, 1996, by the Hon. William J. Keyes. Id. It appears that the motion was not served upon the Multnomah County District Attorney, and no response to the motion was filed.

Petitioner also filed a petition for writ of habeas corpus in original jurisdiction with the Oregon Supreme Court, again acting pro se. (Petitioner's Response at 21.) In that petition, petitioner apparently challenged the bail amount of $2,000,000 as excessive. (Petitioner's Response at 21, Exh. B.) Respondent, by and through his attorney, argued that petitioner is not entitled to release pending the appeal from his state habeas corpus denial. (Petitioner's Response, Exh. B.) Respondent also argued that a writ should not issue because petitioner had or has other legal remedies available to seek his release and challenge the security amount, including the petition for writ of habeas corpus pending before this court. (Id.) On February 5, 1997, the Oregon Supreme Court denied the petition, without discussion. See Order, attached. Petitioner thus remains incarcerated, with bail set at the amount of $2,000,000.

DISCUSSION

After reviewing the briefing submitted by the parties and after extensive legal research in the area, I conclude that there are four primary issues in this case: (1) whether this court has jurisdiction to consider this petition; (2) the constitutionality of the Oregon enactment of Sec. 6 of the Uniform Criminal Extradition Act (UCEA), which provides for discretionary extradition of a non-fugitive; (3) the exhaustion of available state remedies (as to both the merits of the petition and the issue of release pending determination on the merits); and (4) the merits of petitioner's claim, i.e., whether the extradition is legal.

I. Jurisdiction.

Under 28 U.S.C. § 2241(c)(3), a petition for writ of habeas corpus may be brought in federal court by one who "is in custody in violation of the Constitution or laws or treaties of the United States." Respondent argues that since the UCEA is not a law or treaty of the United States, custody in violation of the UCEA is not subject to challenge under § 2241. Respondent further argues that no probable cause determination is necessary in the extradition context, and therefore a challenge to custody under the UCEA cannot be based upon a Fourth Amendment argument. In support of this theory, respondent cites Oregon appellate case law concluding that the Fourth Amendment is not applicable to extraditions. Ault v. Purcell, 16 Or.App. 664, 666, 519 P.2d 1285, cert. denied 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); Grant v. Shobe, 18 Or.App. 188, 190, 524 P.2d 550 (1974). Respondent also cites Michigan v. Doran, 439 U.S. 282, 292-93, and n. 2, 99 S.Ct. 530, 537, and n. 2, 58 L.Ed.2d 521 (1978), (noting that the question of application of the Fourth Amendment to extraditions was one on which state and federal courts are deeply divided).

In response to this argument, petitioner contends that the Fourth Amendment "governs all intrusions by agents of the public upon...