Opinion
No. 3:03-CV-2624-M
February 18, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE TUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND
A. Parties and Matters Before the Court
In October 2003, petitioner filed the instant federal petition for writ of habeas corpus (Pet.) pursuant to 28 U.S.C. § 2254(a) to challenge his extradition to California. As discussed infra, the petition is properly considered pursuant to 28 U.S.C. § 2241. Petitioner specifically challenges an executive order of Texas Governor Rick Perry that commands his arrest and extradition to California, ( see Ex. 2 of Ex. C of Pet., hereinafter Governor's Warrant), and a state judgment that denies his state habeas application and orders his extradition to California, ( see Judgment — (Fugitive), attached as Ex. F to Pet., hereinafter Habeas J.). Petitioner names Jim Bowles, Sheriff of Dallas County, as respondent.
Petitioner also attempts to assert claims regarding proceedings related to his civil contempt detention in SEC v. Resource Development International, No. 3:02-CV-0605-R (N.D. Tex.), an SEC action against him and others in this Court. However, such matters are not properly before the Court in the instant habeas action. Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a habeas petition "be limited to the assertion of a claim for relief against the judgment or judgments of a single state court." Rule 1(b) of these rules permits the Court to apply the rules in habeas actions which do not arise under 28 U.S.C. § 2254. The Court may thus apply the rules to this action whether it arises under § 2254 or § 2241. In the context of a § 2241 habeas action, Rule 2(d) would prohibit combined challenges to judgments of multiple courts, whether state or federal. Furthermore, the Court has already denied petitioner habeas relief in the context of the SEC action. See Edwards v. Wendt, No. 3:02-CV-1743-R, slip op. (N.D. Tex. Aug. 23, 2002) (order denying § 2241 petition related to civil contempt detention). The Court will therefore not consider any claim unrelated to petitioner's extradition from Texas to California.
B. Relevant Factual and Procedural Background
Petitioner, a resident of the State of Washington, was named as a defendant in a civil action commenced by the Securities and Exchange Commission (SEC) in the Northern District of Texas. See SEC v. Resource Dev. Int'l, No. 3:02-CV-0605-R (N.D. Tex.) [hereinafter referred to as SEC Action]. On May 8, 2002, the District Court in that civil action found petitioner in civil contempt of court for (1) failure to appear before the Court; (2) entering and taking control of certain premises relevant to the SEC action; and (3) removal of documents, records, and property from such premises in violation of a court order. Id. (doc. 103).
Subsequent to that contempt order, state law enforcement officers arrested petitioner in July 2002 in the State of Washington, and delivered him to the United States Marshal for delivery to Texas. ( See Aff. of Petitioner ¶¶ 9 14, attached as Ex. 3 to Ex. C to Pet., hereinafter referred to as Habeas Aff.) On October 25, 2002, the SEC moved for an order to conditionally release petitioner from federal custody to Texas for extradition to California. SEC Action (doc. 216). On October 29, 2002, the Court again found petitioner in contempt of court — this time for his failure "to make and provide the accountings" required by a previous order of the Court. See id. (doc. 218). On that same date, the Court additionally released petitioner to Texas authorities for extradition to California, provided that petitioner was returned to Seagoville for continued incarceration on the civil contempt order upon completion of the California criminal proceedings, including any sentence rendered therein. Id. (doc. 219).
On November 1, 2002, the State of California filed a twenty-five page amended felony complaint, and issued an arrest warrant for petitioner. ( See State's Ex. 4 attached to Ex. A of Pet.; Am. Felony Compl. for Extradition Purposes, attached as Ex. B to Ex. D of Pet., hereinafter Felony Compl.) That same date, a Deputy District Attorney for the County of Santa Clara, California, applied to the Governor of California for a requisition order to secure the arrest and rendition of petitioner from Texas for California felonies. ( See Application for Requisition attached as Ex. C to Ex. D of Pet.) On November 13, 2002, California Governor Gray Davis entered an Executive Order demanding that petitioner be arrested in Texas for various California crimes and delivered to Sheriff Laurie Smith and/or agents of Santa Clara County. ( See Ex. 1 of Ex. C of Pet., hereinafter Requisition Order.) Governor Davis specifically asserted that petitioner "intentionally committ[ed] an act or acts while outside the State of California resulting in said crimes in [California]." ( Id.) With the Requisition Order, Governor Davis provided a copy of the twenty-five count amended felony complaint. ( Id.; Felony Compl.) A California county judge specifically found probable cause "for the issuance of a warrant of arrest" for petitioner on the charges alleged in the felony complaint. (Felony Compl. at 33.) On November 20, 2002, Texas Governor Rick Perry signed an executive order commanding petitioner's arrest and delivery to California. ( See Governor's Warrant.)
On December 4, 2002, Dallas County Sheriff Deputies "arrested" petitioner while he was in federal custody in Seagoville, Texas. ( See Habeas Aff. ¶ 22.) The next day, petitioner was "booked" into Dallas County Jail. ( Id. 11 23.) On December 11, 2002, petitioner's sister tried to file a state petition for writ of habeas corpus on petitioner's behalf. ( Id. ¶ 25; see also, Application for Writ of Habeas Corpus signed by the sister as "Petitioner", attached as Ex. B to Pet.) On December 12, 2002, petitioner first appeared before a state Magistrate — Dorothy Shead of Dallas County. ( See Habeas Aff. ¶ 26.) Magistrate Shead informed petitioner of the accusations against him, his right to retain counsel, his right to the appointment of counsel if he was found indigent and unable to afford counsel, his right to remain silent, his right to have his attorney present during any interview with peace officers or state attorneys, and his right to have an examining trial. ( See Arraignment Sheet, attached as State's Ex. 3 to Ex. A to Pet.) A week later, petitioner filed a "Petition for Writ of Habeas Corpus" with the state court. ( See Ex. C to Pet., hereinafter referred to as State Writ.)
Petitioner appeared before Magistrate Patterson on December 20, 2002, and the Magistrate admonished and notified him about his extradition; gave him an opportunity to file his writ; advised him that his writ would be heard on January 3, 2003; asked whether he wanted counsel appointed; and admonished him about the dangers of self-representation. ( See Reporter's Record of Writ of Habeas Corpus — Extradition Hearing, at 22-23, attached as Ex. A to Pet, hereinafter Extradition Tr.) On January 2, 2003, petitioner filed a supplement to his state writ. ( See Ex. D to Pet.)
On January 3, 2003, Magistrate Patterson held petitioner's extradition hearing. ( See Extradition Tr.) The Magistrate revisited the appointment of counsel issue, and petitioner indicated that he would not sign an affidavit of indigency. ( Id. at 6.) The Magistrate further admonished petitioner of the dangers and disadvantages of proceeding without counsel. ( Id. at 7-10.) The Magistrate explained petitioner's right to file a petition for writ of habeas corpus, the right to self-representation, and the right to appointed counsel for indigent persons. ( Id.) Petitioner persisted in his refusal to sign an affidavit of indigency. ( Id. at 10.) The Magistrate proceeded with the hearing without counsel, and at its conclusion, indicated that petitioner's state writ would be denied. ( Id. at 43.)
In his findings, Magistrate Patterson recommended that petitioner's state writ be denied, and proposed that the court find that (1) "[t]he Governor's Warrant is regular on its face"; (2) petitioner is charged with a crime in California; (3) petitioner is the person named in the request for extradition; and (4) petitioner is a fugitive. ( See Mag.'s Proposed Findings . Recommendations, attached as Ex. E to Pet., hereinafter Proposed Findings.) On January 3, 2003, District Judge Karen Greene accepted the findings and recommendations, and entered judgment that denied the state writ and remanded petitioner to Sheriff Bowles for delivery to California. ( See Habeas J.)
On January 8, 2003, petitioner objected to the recommended disposition of his state writ, ( see Opp'n Mag.'s Recommendations to Deny Writ of Habeas Corpus, attached as Ex. G to Pet.), and filed a notice of appeal of the decision, ( see Notice of Appeal, attached as Ex. H to Pet.). On April 4, 2003, the court of appeals affirmed the decision of the extradition court. See Ex. Parte Edwards, No. 05-03-00215-CR, 2003 WL 1788658, at *1 (Tex.App.-Dallas Apr. 4, 2003, pet. ref'd).
On April 11, 2003, petitioner filed an emergency writ with the Supreme Court of Texas. ( See Ex. I of Pet.) The writ was transferred to the Texas Court of Criminal Appeals, ( see Pet. at 4), which ultimately denied it without written order as a motion for leave to file an original application for writ of habeas corpus on May 14, 2003, ( see Ex. J to Pet.). On June 6, 2003, petitioner filed a second emergency writ with the Supreme Court of Texas, ( see Ex. K to Pet.); the court declined to accept it on June 11, 2003, and recommended that petitioner proceed in federal court, ( see Pet. at 4).
On September 17, 2003, after the Texas Court of Criminal Appeals refused his petition for discretionary review (PDR), petitioner filed a motion for rehearing. ( See Ex. U to Pet.) The motion was denied on October 15, 2003. ( See Ex. V to Pet.).
In October 2003, petitioner filed the instant federal petition. (Pet. at 1.) On November 7, 2003, the Court directed respondent Sheriff Jim Bowles to answer within sixty days. ( See Order to Show Cause.) On December 3, 2003, petitioner filed a "Request for Stay of State Court Proceedings Pending Habeas Corpus Review." That same day, the District Court entered an order temporarily enjoining petitioner's transfer to California before December 12, 2003. ( See Order dated Dec. 3, 2003, at 5:45 p.m.) On December 5, 2003, the District Court referred petitioner's December 3, 2003 filing to the undersigned Magistrate Judge for recommended disposition, and set a hearing before the Magistrate Judge for December 10, 2003, if necessary. ( See Order of Reference.) On December 8, 2003, this Court concluded that a hearing was necessary, and ordered an expedited response to petitioner's request for stay. ( See Order dated Dec. 8, 2003.)
On December 9, 2003, this Court appointed counsel to represent petitioner at the hearing. That same day, respondent filed a response to petitioner's requested stay asserting that because petitioner had no likelihood of success on the merits of his federal writ, the motion for injunctive relief should be denied. ( See Resp.'s Resp. Petitioner's Ex Parte Request for Stay of State Court Proceedings Pending Habeas Corpus Review.) Respondent also claimed that petitioner had not exhausted his state remedies. ( Id.)
On December 9, 2003, this Court also received "Petitioner's Request for Preliminary Injunction Pending Habeas Review", which this Court construed as a continuation of the request filed on December 3, 2003. On December 11, 2003, this Court commenced a hearing on the request for preliminary injunction referred to her. Respondent consented on the record to an indefinite extension of the temporary injunction granted by the District Court to permit determination of the merits of petitioner's underlying federal petition. In view of this consent, the District Court indefinitely extended the temporary injunction entered December 3, 2003, pending entry of judgment on the underlying federal petition. (Order of Dec. 12, 2003.)
Due to a power outage in the federal courthouse, the Court had to reschedule the hearing originally scheduled for December 10, 2003.
On December 19, 2003, respondent filed his answer and moved to dismiss the instant petition. ( See Resp.'s Answer Mot. Dismiss, hereinafter simply referred to as Answer.) Respondent urges the Court to dismiss the instant petition on the merits, or alternatively, for petitioner's failure to exhaust his state remedies. ( Id. at 3-8.)
On December 22, 2003, this Court received a pro se reply in which petitioner addresses exhaustion of state remedies. ( See Petitioner's Reply, hereinafter Reply.) By letter dated December 30, 2003, the appointed Federal Public Defender in this case informed this Court that petitioner wished to proceed pro se in this case and attached a statement signed by petitioner to that effect. ( See Letter from Ogan to Ramirez of 12/30/03.) On January 6, 2004, this Court clarified that appointed counsel, having discharged the duties required by the appointment order, was no longer counsel of record for petitioner, and that this Court would consider the pro se reply brief. ( See Order of Jan. 6, 2004.) On January 14, 2004, this Court received "Petitioner's Traverse to Respondent's Answer and Motion to Dismiss." ( See Traverse.)
C. Substantive Claims
Petitioner challenges the Governor's Warrant and the state judgment denying his habeas application. ( See Pet. at 1-2.) He asserts that his arrest and detention "are without due process of law, and in violation of the Laws of the United States, Article 1, § 9, Cl. 2 of the Constitution of the United States and the Fifth, Sixth and Fourteenth Amendments thereto." ( Id. at 2.) Specifically, he claims that the State knowingly failed to present him before a judge for eight days in violation of the federal twenty-four hour period, and the Texas statutory period of forty-eight hours. ( Id. at 4.) He further claims that the state court refused to accept the application for habeas corpus submitted by his sister on his behalf; failed to pass upon the jurisdictional questions and Constitutional violations raised in his state habeas; and failed to inquire into his indigent status and timely advise him of his right to counsel. ( Id.) He also claims that, by denying him assistance of counsel and proceeding with the hearing without counsel, the habeas court misused and abused the extradition process and procedure. ( Id. at 4-5.) In addition, he claims that the Governor's Warrant fails to make the factual determination required by 18 U.S.C. § 3182 that petitioner is a fugitive. ( Id. at 5.) Lastly, he claims that his extradition is "based on documents wanting probable cause" in violation of his rights to due process. ( Id.)
Pursuant to petitioner's supporting memorandum attached to his federal petition, the following claims were not reviewed by the state courts: (1) detention of eight days without seeing judge; (2) refusal of court to consider habeas application submitted by his sister; and (3) denial of assistance of counsel. ( See Mem. Supp. at 13-16.)
Petitioner identifies this as a "rendition warrant" but cites to a document that the Court refers to as "Governor's Warrant." The Court will use the latter phrase for consistency.
II. JURISDICTION
Petitioner asserts that 28 U.S.C. § 2254 (a) grants jurisdiction over the instant petition. (Pet. at 1.) Respondent "denies that the Court has jurisdiction over the subject matter or the parties pursuant to 28 U.S.C. § 2254" but does not state a basis for this assertion. (Answer at 1.) Notwithstanding such denial, respondent relies upon provisions of § 2254 to urge dismissal for petitioner's alleged failure to exhaust state remedies and on the merits. ( Id. at 5-7.) This Court has the duty to assure that it has jurisdiction over the matters before it. See Bridgmon v. Array Systems Corp., 325 F.3d 572, 575 (5th Cir. 2003) (noting that the courts have the duty to raise jurisdiction sua sponte, when "the parties have not raised the issue"); Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir. 1985) (noting that district courts "have the responsibility to consider the question of subject matter jurisdiction sua sponte if it is not raised by the parties").In this instance, petitioner characterizes his petition as arising under § 2254(a). (Pet. at 1.) Such characterization, however, does not end the inquiry or dispose of the issue. Irrespective of the label petitioner uses, the Court must consider a filed habeas petition under the proper statutory framework. See Felker v. Turpin, 518 U.S. 651, 662-65 (1996) (discussing differences in types of habeas petitions); Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (relying on Felker for looking beyond the label a given petitioner may use to characterize his action); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n. 1 (5th Cir. 1987) (indicating that federal courts may construe and re-characterize a pro se prisoner action "according to the essence of the prisoner's claims, regardless of the label that the prisoner places on his complaint"); Fisher v. Rose, 757 F.2d 789, 792 n. 2 (6th Cir. 1985) (construing an improper § 2254 petition as a petition filed pursuant to § 2241); McLean v. Smith, 193 F. Supp.2d 867, 871 (M.D. N.C. 2002) (providing an overview of the differences between habeas petitions filed under § 2241 and § 2254); Tinsley v. Cockrell, No. CIV.A. 3:02-CV-837-L, 2002 WL 31495984, at *1 n. 1 (N.D. Tex. Nov. 4, 2002) (findings and recommendation accepted by District Court that followed Fisher and construed a purported § 2254 action as arising under § 2241).
Section 2254 is reserved for habeas applications on "behalf of a person in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2254(a). Petitioner specifically claims that he is in custody pursuant to a state judgment that upholds the Texas Governor's Warrant which orders him extradited. (Pet. at 1-2.) The state court has indeed entered a document entitled "Judgment — (Fugitive)" in the state extradition proceedings against petitioner. ( See Habeas J.) Nevertheless, as the state court stated at the extradition hearing:
This is an extradition proceeding, it is not a criminal prosecution. You cannot be confined for this offense, because there is no offense. This is simply a proceeding to determine whether or not you should be returned to what is called the demanding state, in this instance California. Texas, we refer to as the asylum state. But nonetheless, even though you cannot be prosecuted or receive a sentence for this proceeding, it does have to be conducted according to the Rules of Evidence, the Code of Criminal Procedure, the Extradition Act and other statutes which are binding upon all of us.
Consistent with this state court explanation, the habeas judgment entered in petitioner's state case does not constitute a criminal judgment within the meaning of TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 1994). Under § 1 of Article 42.01, "[a] judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." In this instance, the habeas judgment shows neither a conviction nor an acquittal. ( See Habeas J.) The document, furthermore, lacks other typical trappings of a criminal judgment as defined by Texas law. See Article 42.01, § 1 (indicating that a judgment should reflect among other things: (13) the offense for which the defendant was convicted; (15) the term of sentence; (17) the date sentence was imposed; and (18) the date sentence was to commence and the credit for time served). Rather than showing a conviction or acquittal of petitioner, the document merely states that petitioner "is legally held in custody" pursuant to the Governor's Warrant, and that he is to be extradited to California. ( See Habeas J.)
(Extradition Tr. at 7-8.) Petitioner is not in custody within the meaning of 28 U.S.C. § 2254 by virtue of the habeas judgment which upholds the Governor's Warrant. He is in custody by virtue of the Governor's Warrant itself. The state court entered the "judgment" to deny petitioner's state writ, and provide a basis for petitioner to appeal such denial. Because petitioner is not in custody by virtue of any state judgment, § 2254 is inapplicable.
A finding that petitioner is in custody by virtue of the Governor's Warrant rather than the habeas judgment is further supported by McDonald v. Burrows, 731 F.2d 294 (5th Cir. 1984). In McDonald, the Fifth Circuit Court of Appeals specifically determined that an appellant needs a certificate of appealability (formerly known as a certificate of probable cause) under 28 U.S.C. § 2253 before appealing the denial of a habeas writ in the extradition context. See 731 F.2d at 298. With this ruling regarding a certificate of appealability, the Fifth Circuit recognized that when an individual is "brought before the court on an extradition warrant issued by the Governor of Texas and not on process issued by a state court, no certificate of probable cause to appeal the denial of habeas relief is required" because § 2253 applies "only when the detention complained of `arises out of process issued by a State court.'" See id. The reasoning in McDonald entirely supports a finding that § 2254 is inapplicable in the extradition context.
Because petitioner is in state custody due to the Governor's Warrant and not any state judgment, this action falls under 28 U.S.C. § 2241 (c)(3), which applies to those "in custody in violation of the Constitution or laws or treaties of the United States", rather than § 2254. Although the Court, of course, has jurisdiction over actions arising under either § 2241 or § 2254, the fact that § 2254 does not govern this action means that the exhaustion provisions of § 2254(b) and the standards of § 2254(d) do not apply by their terms.
III. EXHAUSTION
Although petitions under 28 U.S.C. § 2241 (c)(3) are not subject to the statutory requirement of exhaustion of remedies applicable to prisoners challenging state-court convictions under § 2254(b), federal courts may require, as a matter of comity, that petitioners under § 2241 exhaust all avenues of state relief before seeking a federal writ. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-90 (1973) (challenging pre-trial detention); Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987) (same); Whelan v. Noelle, 966 F. Supp. 992, 997-98 (D. Or. 1997) (challenging extradition).
Despite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.
The exhaustion doctrine of section 2241(c)(3) was judicially crafted on federalism grounds in order to protect the state courts' opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process.Dickerson, 816 F.2d at 225 (citations omitted). The inapplicability of the exhaustion provisions of § 2254(b) thus does not preclude consideration of respondent's argument that petitioner has not exhausted his state remedies.
"The requirements of the exhaustion concept are simple: An applicant must fairly apprise the highest court of his state of the federal rights which were allegedly violated. Further, the applicant must present his claims in a procedurally correct manner." Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (citations omitted). To exhaust state remedies, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
To exhaust state remedies in the context of a pretrial habeas application that challenges extradition, a petitioner must pursue relief from extradition through a state writ of habeas corpus. See Exparte Lebron, 937 S.W.2d 590, 593 (Tex.App.-San Antonio 1996, pet. ref'd as untimely) (noting that "[o]nce the governor has granted extradition, an accused's sole avenue for relief from extradition is through a writ of habeas corpus"). He commences such procedure by filing a state writ with the trial court, and upon an unsuccessful resolution of such writ, he appeals to the intermediate court of appeals. See Ex parte Lopez, 988 S.W.2d 788, 789 (Tex.App.-San Antonio, 1999, no pet.) (showing pursuit of such procedure). He would present the matter to the Texas Court of Criminal Appeals by timely filing a PDR from the ruling of the court of appeals. See TEX. R. APP. P. 31.5 (indicating that filing a PDR is an option). Such presentation would complete one round of Texas' appellate review process, and thus exhaust state remedies. In this instance, petitioner has completed the state process for adjudicating challenges to extradition proceedings for the two claims he presented to the Texas Court of Criminal Appeals in his PDR.
The only two claims presented in his PDR are (1) whether the documents supporting California's request for extradition meet the probable cause sufficiency requirement of the Fourth Amendment and (2) whether due process requires the Governor's Warrant to have "more than a single recitation that the offense committed out of demanding state had effect therein." ( See PDR at 3, attached as Ex. Q to Pet.)
Respondent asserts that the instant petition may be dismissed entirely for the failure of petitioner to raise all of his federal claims to the highest court in Texas. It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Although Rose provides for dismissal of the action in the absence of complete exhaustion, the Court may in some circumstances excuse a failure to exhaust and proceed to the merits of the unexhausted claims. As noted in Deters v. Collins, 985 F.2d 789 (5th Cir. 1993), the Court may excuse a failure to exhaust "in those `rare cases where exceptional circumstances of peculiar urgency' mandate federal court interference." Id. at 795. Furthermore, courts that have addressed exhaustion in the specific context of extradition have held that exhaustion may be excused upon a showing of "special circumstances." See Whelan v. Noelle, 966 F. Supp. 992, 997-98 (D. Or. 1997); West v. Janing, 449 F. Supp. 548, 550 (D. Neb. 1978). In addition, one circuit court has specifically concluded that "it is not inconsistent with § 2241 or [its] habeas corpus precedent to follow the policy of § 2254(b)(2) " and deny the § 2241 petition on the merits despite a lack of exhaustion. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Although " [e] xceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently fufile course of action", the petitioner "bears the burden of demonstrating" an applicable exception. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (citation omitted).
The Court notes that "a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has [not] properly presented his claims to the state courts," and thus procedurally defaults such claims when he has already completed the one complete round of the established appellate review process, and cannot return there. O'Sullivan, 526 U.S. at 848. "A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him." See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In this instance, respondent has not addressed the issue of procedural default. The Court is thus uncertain whether petitioner can return to the state courts with the claims he did not raise in his PDR. Were petitioner's state habeas action premised on TEX. CODE CRIM. PRO. ANN. art. 11.07, the claims not raised to the Texas Court of Criminal Appeals would undoubtedly be defaulted under the Texas abuse-of-the-writ doctrine codified in § 4 of Article 11.07. However, Article 11.07 applies only to post-conviction writs of habeas corpus. Because respondent has not addressed the procedural default issue, and because the Court knows of no adequate and independent state procedural ground to bar further state habeas review that has been strictly and regularly applied in the extradition context, the Court declines to consider the instant action as fully exhausted. There is nothing before the Court which suggests that the Texas courts would now find the claims not previously presented to the Texas Court of Criminal Appeals procedurally barred. Consequently, such claims are not technically exhausted within the meaning of O'Sullivan and Coleman.
Furthermore, although it is unknown whether respondent's failure to address the issue is the "byproduct of careless briefing" or simply an indication that no provision of state law prevents petitioner from pursuing his unexhausted claims in state court, it appears clear from the record before the Court that respondent has not purposefully waived the issue of procedural default. See Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998) (finding no intentional waiver when the thrust of the State's argument focused upon exhaustion, but the failure to exhaust was caused by the failure to properly present claims to the state court). In addition, petitioner has been given no notice that procedural default may be an issue for consideration and has had no reasonable opportunity to argue against the application of the bar. These considerations also caution against raising the issue sua sponte.
Section 2254(b)(2) provides that, notwithstanding any failure of petitioner to exhaust his state remedies, the Court may deny a § 2254 "writ of habeas corpus . . . on the merits."
In this instance, petitioner has twice responded to the assertions of lack of exhaustion. ( See Reply; Traverse.) In his reply and traverse, petitioner argues that he has raised his claims in various documents filed in state court. ( See, generally, Reply; Traverse.) Significantly, however, he never claims to have raised his claims in his PDR. That he may have raised claims at some other point in the state process does not suffice. For a petitioner to exhaust his state remedies for a particular claim, he must properly present such claim to the highest court of the state. In this instance, that court is the Texas Court of Criminal Appeals, and the proper vehicle for his claims was his PDR. Any claims not presented in petitioner's PDR was not properly presented to the Texas Court of Criminal Appeals. Consequently, petitioner has exhausted his state remedies for only the two claims raised in his PDR — one related to probable cause and one related to whether due process requires the Governor's Warrant to have "more than a single recitation that the offense committed out of demanding state had effect therein." ( See PDR at 3.)
Petitioner concedes that he has not exhausted state remedies for his claim raised in his request for injunction received by the Court on December 9, 2003, (a claim related to the validity of the offenses charged in California), and re-asserted in his Traverse. ( See Traverse at 10.) Because such claim was not raised in petitioner's initial federal petition, the Court need not address it.
In his reply, petitioner also argues that his claims related to appointment of counsel are jurisdictional and may be raised at any time. (Reply at 3-6.) Petitioner misconstrues the nature of his right to appointment of counsel at the Texas extradition proceedings. Although there is a right to counsel in extradition proceedings under the Uniform Criminal Extradition Act (UCEA), TEX. CODE CRIM.PROC.ANN. art. 51.13, § 10 (Vernon 1979 Supp. 2003) (indicating that state judge must advise one sought to be extradited of his or her "right to demand and procure legal counsel"), such right is not created by the Constitution of the United States. Extradition proceedings do not constitute a "critical stage" where the Sixth Amendment right to counsel attaches. See Chewning v. Rogerson, 29 F.3d 418, 421 (8th Cir. 1994); accord, McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1984) (recognizing that "[e]xtradition is not . . . a criminal proceeding" where the Sixth Amendment applies). Furthermore, the Fifth Amendment right to counsel applies only during a custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 300, n. 4 (1980). Because petitioner's right to counsel at the extradition proceedings is purely statutory, his reliance upon Sixth Amendment case law is unavailing and misplaced. Appointment of counsel during extradition proceedings is not a jurisdictional prerequisite that can be asserted at any time. As these claims were not raised in his PDR, they appear unexhausted.
A review of petitioner's Reply and Traverse clearly show that he has made no attempt to demonstrate any recognized exception to the exhaustion requirement. He has thus not carried his burden to show the applicability of such an exception. Consequently, the Court finds his claims unexhausted other than the two claims presented to the Texas Court of Criminal Appeals in his PDR.
Despite the lack of exhaustion, it appears prudent to address the merits of petitioner's claims in this case. In Montez v. McKinna, the Tenth Circuit deemed it proper to "follow the policy of § 2254(b)(2)" even when dealing with a habeas petition under 28 U.S.C. § 2241. See 208 F.3d 862, 866 (10th Cir. 2000). Such practice is not inconsistent with § 2241 or precedent of the Fifth Circuit Court of Appeals. It seems reasonable to extend § 2254(b) (2) to the judicially created exhaustion requirement applied to actions under § 2241(c)(3). Therefore, notwithstanding any failure of petitioner to exhaust his state remedies, the Court may deny his writ of habeas corpus on the merits, as it can with § 2254 petitions in accordance with 28 U.S.C. § 2254(b)(2).
In light of the nature of the instant challenge to extradition, the lengthy delay since California's request for extradition in November 2002, and petitioner's pro se status through the state habeas process despite his request for counsel, the Court deems it appropriate to proceed to the merits of petitioner's federal claims. Interstate extradition proceedings are intended to be summary in nature. Alabama v. Battles, 452 U.S. 920, 924 (1981); Michigan v. Doran, 439 U.S. 282, 288 (1978); Crumley v. Snead 620 F.2d 481, 483 (5th Cir. 1980). They are intended to enable states to bring offenders to trial as swiftly as possible in the demanding state. Biddinger v. Commissioner of Police, 245 U.S. 128, 132-33 (1917). Because California has been waiting for petitioner's extradition for over a year, it appears most efficient and expeditious to consider the underlying federal petition on the merits, rather than dismiss it without prejudice so that petitioner can exhaust his state remedies. "As is apparent from the length of time this proceeding has taken in the [state courts], it has been anything but the `summary' proceeding contemplated by [Supreme Court precedent]." New Mexico, ex rel Ortiz v. Reed, 524 U.S. 151, 155 (1998).
IV. GOVERNING EXTRADITION LAW
Both parties rely upon case law specifically related to the extradition of fugitives. However, it appears that petitioner was charged in California as a non-fugitive, and the Texas courts relied on that fact, at least in part, in denying petitioner's state habeas application. Furthermore, petitioner claims that he has never been in California, and thus argues that he cannot be a fugitive within the meaning of extradition law. Accordingly, the Court examines the extradition law as it applies to fugitives as well as to non-fugitives.
A. Constitutionally and Federally Mandated Interstate Extradition
"Interstate extradition [i]s intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution." See Michigan v. Doran, 439 U.S. 282, 288 (1978). "The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system." California v. Superior Ct., 482 U.S. 400, 406 (1987). "The Extradition Act, 18 U.S.C. § 3182, provides the procedures by which this constitutional command is carried out." New Mexico, ex rel. Ortiz v. Reed, 524 U.S. 151, 152 (1998). Section 3182 requires (1) the demanding state to produce a copy of an indictment or an affidavit made before a magistrate; (2) the produced copy must charge the person demanded with a crime; (3) the produced copy must be "certified as authentic"; and (4) the person demanded must be a fugitive'. In addition, § 3182 provides that, if no agent appears to receive the demanded person within thirty days of that person's arrest, then the asylum state may discharge the prisoner.
Article IV, § 2, cl. 2 of the Constitution provides: "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
Section 3182 addresses extradition of fugitives who have fled from one State or Territory to another State, District, or Territory. It provides in full:
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.
"The statute has remained substantially unchanged since its original enactment in the Extradition Act of 1793, 1 Stat. 302." Puerto Rico v. Branstad, 483 U.S. 219, 224 n. 2 (1987).
The asylum state is the state in which the habeas petitioner has been located.
Interstate extradition, under the Constitution and an implementing statute such as § 3182, is conditioned upon two requirements — the person to be extradited must be "substantially charged with a crime" in the charging or demanding state and he must be a "fugitive" from that state. See Hyatt v. People of State of N.Y. ex rel. Corkran, 188 U.S. 691, 709-10 (1903). Under the "plain meaning" of the Extradition Clause of the Constitution and the federal implementing statute, "a fugitive from the justice of a state" does not include "one who had not been in the state at the time when, if ever, the offense was committed, and who had not, therefore, in fact, fled therefrom." Id. at 713. For petitioner to be a fugitive for purposes of extradition, he "must have been [in California] when the crime was committed, as alleged, and if not, a subsequent going there and coming away is not a flight." Id. at 719; accord, Watson v. Montgomery, 431 F.2d 1083, 1087 (5th Cir. 1970) (recognizing that on habeas review the federal courts must determine whether "the fugitive was in the demanding state at the time the alleged crime was committed").
Neither the United States Constitution nor 18 U.S.C. § 3182 concern interstate extradition of non-fugitives. However, neither do they "expressly negate the power of the states to provide for the extradition of persons who are not fugitives in the technical sense." Miller v. Decker, 411 F.2d 302, 305 (5th Cir. 1969).
B. State enacted Law Governing Interstate Extradition
To provide the procedural mechanism for the summary disposition of extradition cases involving fugitives or non-fugitives, Texas has adopted the UCEA, TEX. CODE CRIM. PROC. ANN. art. 51.13 (Vernon 1979 Supp. 2003). Section 27 of the act provides that" [t] he provisions of this Article shall be interpreted and construed as to effectuate its general purposes to make uniform the law of those States which enact it." In view of this general purpose, and "[b]ecause the act is a uniform law, decisions from other states are valuable for the interpretation of its provisions." Hill v. Blake, 441 A.2d 841, 844 (Conn. 1982); accord, Ex parte Potter, 21 S.W.3d 290, 294-95 (Tex.Crim.App. 2000) (recognizing that, while decisions of other states are "not binding, they may provide some useful insight"); jenkins v. Garrison, 453 S.E.2d 698, 702 n. 8 (Ga. 1995) (holding that "judicial decisions from other states interpreting their codification of [UCEA would be] `particularly persuasive'"); Boudreaux v. State, 989 P.2d 1103, 1106-07 (Utah Ct. App. 1999) (following Jenkins and noting § 27 of the UCEA).
"California in 1937 adopted the Uniform Criminal Extradition Act (§ 1547 et seq.) which extends many rights to fugitives from justice faced with extradition and which specifically authorizes procedures to resist extradition by resort to the courts." In re Watson, 566 F.2d 243, 248 (Cal. 1977).
Forty-eight states, Puerto Rico. and the Virgin Islands have adopted substantially similar versions of the uniform act. The Texas version is codified at article 51.13 of the Code of Criminal Procedure. The uniform act has not been adopted in Mississippi, South Dakota, or the District of Columbia, where each has an extradition statute which subjects the person sought to greater discretionary treatment under their respective extradition procedures.Ex parte, Lebron, 937 S.W.2d 590, 592 n. 2 (Tex.App. — San Antonio 1996, pet. ref'd as untimely).
Although the UCEA is a uniform act between various states, it is nevertheless a "state statute." See Rayburn v. State, 748 S.W.2d 285, 288 (Tex.App.-Tyler 1988, no pet.). Extradition procedures not set forth in 18 U.S.C. § 3182 are "matter [s] of state law" governed by the UCEA. See Good v. Attain, 646 F. Supp. 1029, 1031 (S.D. Miss. 1986), aff'd as modified, 823 F.2d 64 (5th Cir. 1987) (modifying "that portion of the judgment dismissing with prejudice and order the dismissal be without prejudice" but otherwise affirming lower court's opinion). Nevertheless, courts construe the UCEA "in harmony with the Federal Constitution (art. 4, § 2, cl. 2) and the Federal statute ( 18 U.S.C. § 3182)." See Commonwealth v. Sawyer, 452 N.E.2d 1094, 1098 n. 5 (Mass. 1983). To the extent applicable, "the courts of an asylum state are bound by Art. IV, § 2, by § 3182, and, where adopted, by the Uniform Criminal Extradition Act." See Michigan v. Doran, 439 U.S. 282, 288-89 (1978) (citations omitted).
Inherent in § 3182 is the federal right "to challenge their extradition by writ of habeas corpus" and the "right to the hearing is one secured by the Constitution and laws of the United States." See Crumley v. Snead, 620 F.2d 481, 483 (5th Cir. 1980).
As already noted, neither the Constitution nor the federal enacting statute address interstate extradition of non-fugitives. They also do not prohibit the states from addressing such extradition. See Miller v. Decker, 411 F.2d 302, 305 (5th Cir. 1969). In fact, after considering pertinent Texas cases and case law from various other jurisdictions, the Fifth Circuit Court of Appeals expressly found the Texas UCEA constitutional in Miller. Id. at 302-06.
The circuit found People of State of N.Y. v. O'Neill, 359 U.S. 1 (1959) particularly persuasive. As noted in O'Neill, "the Uniform Criminal Extradition Act . . . provides for rendition of alleged criminals whose conduct does not bring them within the constitutional extradition provision." 359 U.S. at 10. The Court analyzed the constitutionality of a similar uniform act entitled the "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings" as follows:
The manifold arrangements by which the Federal and State Governments collaborate constitute an extensive network of cooperative governmental activities not formulated in the Constitution but not offensive to any of its provisions or prohibitions. . . .
To hold that these and other arrangements are beyond the power of the States and Federal Government because there is no specific empowering provision in the United States Constitution would be to take an unwarrantedly constricted view of state and national powers and would hobble the effective functioning of our federalism. . . .
The Constitution of the United States does not preclude resourcefulness of relationships between States on matters as to which there is no grant of power to Congress and as to which the range of authority restricted within an individual State is inadequate. By reciprocal, voluntary legislation the States have invented methods to accomplish fruitful and unprohibited ends.Id. at 11.
Section 6 of the UCEA governs the discretionary extradition of non-fugitives. It permits the Governor of Texas to "surrender a person who is charged in the demanding State with committing an act in this State, or in a third State, intentionally resulting in a crime in the demanding State." Ex parte Foss, 492 S.W.2d 552, 553 (Tex.Cr.App. 1973). This section was specifically "designed to cover cases not clearly reached by the constitutionally-based extradition laws; that is, where the accused could not technically be called a fugitive because he had committed a crime against the laws of a demanding state by doing acts outside of that state." Jenkins, 453 S.E.2d at 701 (citing UCEA, Commissioners' Prefatory Note); accord, Hill, 441 A.2d at 843 (same). The drafters of the UCEA recognized that the Constitution does not obligate the states to extradite non-fugitive criminals. The effectiveness of several sections of the UCEA dealing with the extradition of criminals who perhaps cannot be technically called fugitives thus depends on comity between the states, rather than on the Constitution. Hill, 441 A.2d at 843-44 (holding that because "the extradition clause of the United States Constitution neither requires nor prohibits enactment of state laws governing non-fugitive extradition, enforcement of section 6 is a matter of comity between the states", and citing Commissioners' Prefatory Note as support).
Section 6 provides:
The Governor of this State may also surrender, on demand of the Executive Authority of any other State, any person in this State charged in such other State in the manner provided in Section 3 with committing an act in this State, or in a third State, intentionally resulting in a crime in the State whose Executive Authority is making the demand, and the provisions of this Article not otherwise inconsistent, shall apply to such cases, even though the accused was not in that State at the time of the commission of the crime, and has not fled therefrom.
Although 18 U.S.C. § 3182 governs the mandatory extradition of fugitives from justice, § 3 of the UCEA also governs such extradition for the states that have adopted the UCEA. Obviously, § 3 is intricately intertwined with federal and constitutional extradition law. Furthermore, § 10 of the UCEA sets forth procedures for carrying out the state statutory requirements.
Section 3 provides:
No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless in writing, alleging, except in cases arising under Section 6, that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand; provided, however, that all such copies of the aforesaid instruments shall be in duplicate, one complete set of such instruments to be delivered to the defendant or to his attorney.
The Court thus considers how the varying extradition laws affect habeas review in this Court. C. Scope of Habeas Review in Extradition Context
The Supreme Court has specifically limited federal habeas review of extradition proceedings involving fugitives to four specific areas. See Michigan v. Doran, 439 U.S. 282, 289 (1978).
A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.Id. (citation omitted). Both the Fifth Circuit Court of Appeals and the Texas Court of Criminal Appeals have recognized the Doran limitations on habeas review. See McDonald v. Burrows, 731 F.2d 294, 296-97 (5th Cir. 1984) (expressly limiting the scope of federal habeas review in interstate extradition cases involving a fugitive of justice to the four areas delineated in Doran); Ex parte Potter, 21 S.W.3d 290, 294-95 (Tex.Crim.App. 2000) (expressly limiting the scope of state habeas review in interstate extradition cases involving a fugitive of justice under UCEA § 3 to the four areas delineated in Doran but also recognizing that mental incompetency can impact issues (c) and (d) set forth in Doran).
When determining whether one is a fugitive on habeas review, the courts of the asylum state cannot consider issues that can be fully litigated in the charging or demanding state. See New Mexico, ex rel. Ortiz v. Reed, 524 U.S. 151, 153-54 (1998). "The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only four issues open for consideration before the fugitive is delivered up." California v. Superior Ct., 482 U.S. 400, 408 (1987).
In Texas, whether a requisition order of the demanding state invokes the provisions of extradition under section 3 or 6 of the UCEA, the scope of review appears to be the same. See Ex parte Lepf, 848 S.W.2d 758, 760-61 (Tex.App.-Corpus Christi 1993, pet. ref d) (setting forth the Doran scope of review, and then, without stating a different scope of review, addressing argument that the petitioner was not a fugitive because the demanding state had charged the petitioner with committing an act in Texas, resulting in a crime in the demanding state). Other courts which have directly addressed the scope of habeas review under § 6 of the UCEA concur. See Boudreaux v. State, 989 P.2d 1103, 1107 (Utah Ct.App. 1999) (listing authorities, including Kennon v. Hill, 44 F.3d 904, 907-08 (10th Cir. 1995) (applying Kansas law)). In fact, "[t]he majority of courts that have considered this issue have applied fugitive-specific case law to nonfugitive situations." Id. In Boudreaux, the court reasoned that "[t]hese courts have seen no reason to vary the procedural protections afforded fugitives when addressing a nonfugitive extradition case. Moreover, treating fugitive and nonfugitive extraditions alike promotes uniformity of the laws and furthers comity between the states." Id. It thus held "that the scope of inquiry in a habeas corpus proceeding brought by a non-fugitive extraditee is limited to that allowed in fugitive extradition cases." Id. at 1108.
Not only does the Boudreaux approach appear consistent with Ex parte Lepf, which did not differentiate between the scope of habeas review for fugitive versus non-fugitive cases, the approach has much independent appeal. Such approach is consistent with the fact that § 6 was designed to fill the gap in Constitutional and Federal law governing extradition of fugitives. Because the states promulgated the UCEA to fill a gap left in the extradition process governed by the Constitution and the enacting federal statute, it seems logical that the scope of habeas review would be similar regardless of the fugitive status of the individual to be extradited.
The scope of habeas review is thus the same whether the State seeks to extradite a fugitive under § 3 of the UCEA consistent with the Constitution and 18 U.S.C. § 3182, or whether it seeks to extradite a non-fugitive under § 6 of the UCEA. Accordingly, habeas review of extradition proceedings under these sections of the UCEA is limited to the four areas delineated by Doran.
V. ANALYSIS
Petitioner asserts that his arrest and detention "are without due process of law, and in violation of the Laws of the United States, Article 1, § 9, Cl. 2 of the Constitution of the United States and the Fifth, Sixth and Fourteenth Amendments thereto." (Pet. at 2.) Specifically, he claims that the State knowingly failed to present him before a judge for eight days in violation of the federal twenty-four hour period, and the Texas statutory period of forty-eight hours. ( Id. at 4.) He further claims the state court refused to accept the application for habeas corpus submitted by his sister on his behalf; failed to pass upon the jurisdictional questions and Constitutional violations raised in his state habeas; and failed to inquire into his indigent status and timely advise him of his right to counsel. ( Id.) He also claims that the habeas court misused and abused the extradition process and procedure by denying him assistance of counsel and proceeding to hearing in the absence of counsel. ( Id. at 4-5.) In addition, he claims that the Governor's Warrant fails to make the factual determination required by 18 U.S.C. § 3182 that petitioner is a fugitive. ( Id. at 5.) Lastly, he claims that his extradition is "based on documents wanting probable cause" in violation of his rights to due process. ( Id.)
Plaintiff claims a violation of the Suspension Clause of Article I, § 9 of the United States Constitution. That clause states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The great writ of habeas corpus is not suspended within the meaning of the Suspension Clause unless some act "renders the habeas remedy `inadequate or ineffective' to test the legality of detention." See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000). There has been no violation of the Suspension Clause in this case. Petitioner unsuccessfully pursued habeas relief at the state level. He now pursues habeas relief through this Court. Clearly there has been no suspension of the great writ.
The state magistrate found that (1) the Governor's Warrant is regular on its face; (2) California has charged petitioner with a crime; (3) petitioner is the person named in the request for extradition; and (4) petitioner is a fugitive. ( See Proposed Findings.) The state district court adopted those findings. ( See Order Adopting Proposed Findings, attached as Ex. 6 to Answer.) The court of appeals agreed that the Texas Governor's Warrant and the California Felony Complaint which supports that warrant are regular on their face and that petitioner is charged with crimes in California and is the person named in the request for extradition. See Ex Parte Edwards, No. 05-03-00215-CR, 2003 WL 1788658, at *3-6 (Tex.App.-Dallas Apr. 4, 2003, pet. ref d). Although it further agrees that petitioner was arrested in Texas, it did not directly address his fugitive status. Id. at *1, 6. Instead, it found that presence in the demanding state at the time of the alleged offenses is not necessary to extradite petitioner to California under § 6 of the UCEA. Id. at *6.
A. Fugitive Status
Petitioner claims that the Governor's Warrant fails to make the factual determination required by 18 U.S.C. § 3182 that petitioner is a fugitive. (Pet. at 5.) In essence, he challenges the finding of the state court that he is a fugitive of California. ( Id.) He premises such challenge on his absence from California at the time of the alleged California offenses. ( Id.)
As discussed above, although the Texas courts initially found petitioner to be a fugitive from California, ( see Proposed Findings (making such finding); Habeas J. (accepting such finding)), the state court of appeals found on state habeas review that, under Texas law, one need not be present in the demanding State at the time of the alleged offenses to be subject to extradition, see Ex. Parte Edwards, No. 05-03-00215-CR, 2003 WL 1788658, at *6 (Tex.App. — Dallas Apr. 4, 2003, pet. ref d). The court of appeals did not accept the finding that petitioner was a fugitive from California. Because petitioner's extradition is premised upon § 6 of the UCEA, rather than § 3 of that act or § 3182 or the United States Constitution, whether or not he is a fugitive does not matter in this instance. Presence in the demanding State is not an issue when the Governor of Texas has exercised the discretionary extradition of a non-fugitive. See TEX. CODE CRIM. PROC. ANN. art. 51.13, § 6. This claim entitles petitioner to no habeas relief from extradition to California.
B. Probable Cause
Petitioner also claims that his extradition is "based on documents wanting probable cause" in violation of his rights to due process. (Pet. at 5.) Such claim goes to the regularity of the Governor's Warrant and the documents in support of that warrant. Nevertheless, Doran forecloses further consideration of this issue. "[O]nce the governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state." Michigan v. Doran, 439 U.S. 282, 290 (1978). In this instance, the Governor of Texas has acted on a requisition for extradition from California based upon a judicial determination by a California judge that probable cause existed. ( See Governor's Warrant (acting on Requisition Order that relied upon the Felony Compl. which contains a judicial determination of probable cause).) This Court cannot further consider the issue of probable cause. Accordingly, petitioner is entitled to no habeas relief on this claim. C. Untimely Appearance Before State Judge
Petitioner claims he was denied due process when the State knowingly failed to present him before a judge for eight days in violation of the federal twenty-four hour period, and the Texas statutory period of forty-eight hours. (Pet. at 4.)
The state court of appeals specifically ruled upon this issue. See Ex. Parte Edwards, No. 05-03-00215-CR, slip op. at 2 (Tex.App. — Dallas Apr. 4, 2003, pet. ref'd). It first held that the issue fell outside the limits of its review. Id. It then held that, even if it were to consider the issue, the record showed no harm to petitioner. Id. The state appellate court specifically found that any delay in bringing petitioner before a state magistrate "did not contribute to the denial [of petitioner's state] petition for writ of habeas corpus." Id.
The timeliness of petitioner's initial appearance before a state judge appears to lie outside the scope of habeas review. See Michigan v. Doran, 439 U.S. 282, 289 (1978); McDonald v. Burrows, 731 F.2d 294, 296-97 (5th Cir. 1984). In McDonald, the Fifth Circuit specifically held that an inquiry regarding a delay between arrest and the extradition hearing "is not appropriate in a habeas corpus hearing challenging . . . extradition." Id. at 297. In accordance with Doran and McDonald, the Court finds petitioner's due process claim based upon his delayed appearance before a state judge outside the scope of federal habeas review.
Furthermore, to succeed on a due process challenge on habeas review, one must demonstrate prejudice from the alleged due process violation. See McDonald, 731 F.2d at 297 (indicating that prejudice is required to find a due process violation in an extradition proceeding); Matter of Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986) (holding that "actual prejudice" is required to find a due process violation in an extradition proceeding). Petitioner has not shown how he was harmed by the delay in bringing him before the state judge. The delay had no apparent impact on the resolution of his state habeas application.
D. Refusal to Accept Habeas Application from Sister
Petitioner also claims he was denied due process when the State refused to accept a state habeas application submitted by his sister on his behalf. (Pet. at 4.) This claim also falls outside the scope of review enunciated in Doran and followed in McDonald. Furthermore, petitioner has shown no prejudice from the State's refusal to accept the habeas application submitted by his sister. The State accepted a later filed habeas petition filed by petitioner himself. Accordingly, this due process claim would necessarily fail even if reviewable in a federal habeas proceeding. For these reasons, this claim entitles petitioner to no habeas relief.
E. Failures of Habeas Court
Finally, petitioner claims that he was denied due process when the habeas court failed to inquire into his indigent status and timely advise him of his right to counsel. (Pet. at 4.) He also claims that the habeas court deprived him of due process when it misused and abused the extradition process and procedure by denying him assistance of counsel and proceeding to hearing in the absence of counsel. ( Id. at 4-5.) In addition, he claims that he was denied due process when the habeas court failed to pass upon the jurisdictional questions and Constitutional violations raised in his state habeas. ( Id. at 4.) His supporting memorandum attached to his federal petition clarifies that the following fall within this claim: (1) eight-day detention without seeing judge; (2) refusal of court to consider habeas application submitted by his sister; and (3) denial of assistance of counsel. ( See Mem. Supp. at 13-16.)
This Court has already addressed items (1) and (2). Furthermore, each of the claimed failures of the trial court appear to fall outside the scope of federal habeas review on this challenge to extradition. See Doran, 439 U.S. at 289; McDonald, 731 F.2d at 296-97. Nevertheless, the Texas Court of Criminal Appeals has held that procedural issues that impact the four areas delineated in Doran may be considered on habeas review to the extent of such impact. See Ex parte Potter, 21 S.W.3d 290, 294-95 (Tex.Crim.App. 2000) (recognizing that mental incompetency can impact issues (c) and (d) set forth in Doran). Petitioner sets forth only one procedural issue that merits consideration of whether it can be considered on habeas review despite falling outside the four literal areas delineated by Doran — the denial of counsel.
Because counsel can generally better present issues for review and argue matters to the habeas courts, one could argue that appointment of counsel could potentially impact each of the four Doran areas. In reality, however, and as aptly stated in Doran — the four areas "are historic facts readily verifiable." See 439 U.S. at 289. Whether petitioner proceeds pro se or with counsel, both state and federal courts are amply qualified to determine whether the Governor's Warrant is facially valid; whether the demanding state has charged the petitioner with a crime; whether the demanded person is the person so charged; and, if relevant to the extradition, whether the demanded person is a fugitive from the demanding state. These matters are neither complex nor complicated. Generally, the only witness that might testify on such matters is the petitioner. With or without counsel representing the person demanded for extradition, the courts can adequately conduct and make the appropriate habeas review of the four Doran areas. Consequently, the presence of counsel during the extradition process likely has limited, if any, actual impact on the matters reviewable through habeas corpus. It thus seems that a failure to appoint counsel in accordance with the UCEA falls outside the permissible scope of habeas review even under the more liberal review recognized in Ex parte Potter.
Nevertheless, the states through the UCEA have created a statutory right to counsel in extradition proceedings. See UCEA, § 10. If such right is ignored, it seems proper to allow the matter to be addressed on habeas review. After all, under Texas case law, "[o]nce the governor has granted extradition, an accused's sole avenue for relief from extradition is through a writ of habeas corpus." See Ex. parte Lebron, 937 S.W.2d 590, 593 (Tex.App.-San Antonio 1996, pet. ref'd as untimely). Were the issue of appointment of counsel to fall outside the Doran areas that are proper for habeas review, a petitioner who has been denied counsel would apparently have no recourse to remedy such denial within the confines of the subsequent habeas proceedings on the extradition issues. It appears reasonable that the state courts could correct the wrongful denial of appointed counsel upon an application for habeas relief filed in the extradition context.
Even were the Court to find that the appointment of counsel issue falls within permissible areas for habeas review consistent with a reasonable extension of Ex parte Potter, 21 S.W.3d 290, 294-95 (Tex.Crim.App. 2000), however, the matter would not entitle petitioner to federal habeas relief. In this action under § 2241(c)(3), habeas relief extends only to individuals who are in custody in violation of the Constitution or laws of the United States. As has already been amply demonstrated, the UCEA is state law. The right to counsel set forth in § 10 of the UCEA is a state statutory right to counsel. A violation of state law does not entitle one to federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Petitioner has no Constitutional right to counsel for the state extradition proceedings. "The statutory right to counsel does not give rise to a constitutional right to an attorney because extradition is not a critical stage of the criminal proceedings." State v. Waggoner, 864 P.2d 162, 165 (Idaho App. 1993) (citing Dunkin v. Lamb, 500 F. Supp. 184 (D. Nev. 1980)), accord, Chewning v. Rogerson, 29 F.3d 418, 421 (8th Cir. 1994) (finding that extradition is not a critical stage that prompts invocation of the Sixth Amendment right to counsel); McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1984) (recognizing that "[e]xtradition is not . . . a criminal proceeding" where the Sixth Amendment applies).
Although petitioner alleges that the denial of counsel deprived him of his due process rights under the United States Constitution, he has shown no actual prejudice from the denial of counsel. A denial of a state-created statutory right to counsel does not require that prejudice be presumed. Like any other due process violation, petitioner must show actual prejudice from the denial. See Prichard-Ciriza v. INS, 978 F.2d 219, 222 (5th Cir. 1992) (considering a failure to appoint counsel in an immigration context, and requiring the alien to "demonstrate prejudice which implicates the fundamental fairness of the proceeding" to succeed on a due process claim regarding the deprivation of the statutory right to representation); United States v. Campos-Asencio, 822 F.2d 506, 510 (5th Cir. 1987) (recognizing that immigration petitioners must show prejudice to succeed on a due process right to counsel). Petitioner here has shown no prejudice from the failure to appoint counsel. He has not even shown that he is eligible for appointment of counsel by demonstrating that he is indigent. He has not shown that the denial of counsel rendered the extradition proceedings "fundamentally unfair." See Campos-Asencio, 822 F.2d at 510 (setting forth the well-settled due process standard for prejudice). A proceeding is deemed "unfair" when it has been "largely robbed of dignity due a rational process." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985) (citation omitted). Nothing before the Court shows petitioner's extradition proceedings to be fundamentally unfair.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2241.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Sews. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).