The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is a Petition for Writ of Habeas Corpus (Doc. 1) filed by Petitioner William Trickett Smith, II ("Smith"), pursuant to 28 U.S.C. § 2241.The government filed its response on October 1, 2009. The petitioner submitted his traverse on October 16, 2009, and the petition is thus ripe for disposition.
Petitioner Smith is a United States citizen presently in the custody of the Commonwealth of Pennsylvania at the Perry County Prison pursuant to the underlying extradition request. (Petitioner's Reply (Doc. 6 at 1)). Petitioner's wife, Jana Claudia Gomez de Smith ("Jana Claudia"), was found dead inside a suitcase discovered on La Cascada Beach, District of Barranco, Peru, on August 16, 2007.*fn1 (August 26, 2008 Extradition Request (Petitioner's Ex. at 91 to 92)).
On June 18, 2008, Elmer Rios Luque, Provincial Prosecutor of the Tenth Criminal Prosecutor's Office--Lima, Peru, pressed criminal charges against Smith "for crimes against the person and health - parricide" for the murder petitioner's wife. Pursuant to those charges, on July 24, 2008, Judge Blanca Epifania Mazuelo Bohorquez of the Twenty-second Criminal Court--Lima, of the Court of Appeals--Lima, ordered an investigation be opened against Smith including a warrant for his arrest to appear before the court. (July 24, 2008 Order to Open Investigation, Petitioner's Ex. at 32 to 89 (Doc. 6-2 at 36 to Doc. 6-3 at 45)). That court produced an extradition request for Smith pursuant to the Extradition Treaty between the United States of America and the Republic of Peru (the "Treaty") to try him for the crime of parricide. (August 26, 2008 Extradition Request, Petitioner's Ex. at 90 to 102 (Doc. 6-4 at 1 to 13); the Treaty, Petitioner's Ex. at 103 to 115 (Doc. 6-4 at 14 to 26)). On September 22, 2008, the Supreme Court, Standing Criminal Division (of Peru), resolved that the extradition request was properly filed and ordered the remittal of the record to the Ministry of Justice. On November 4, 2008, Judge Victor Vicente Santander Salvador, of the Twenty-second Criminal Court--Lima, of the Court of Appeals--Lima, issued a Request for Preventive Arrest with the Purpose of Extradition. (Case No. 1:09mc107 (Doc. 1-2 at 10)). On November 10, 2008, by Supreme Resolution No. 178-2008-JUS, the Peruvian Government agreed with the extradition request and ordered it remitted to the United States government through diplomatic channels, which it was on November 18, 2008. (November 18, 2008 Diplomatic Note No. 5-3M/243, Case No. 1:09mc107 (Doc. 1-2 at 2)).
On March 30, 2009 the United States filed a complaint in this court seeking certification that Smith was extraditable. (Compl., Case No. 1:09mc107 (Doc. 1)). On June 10 and July 14, 2009, being in possession of volumes of Peruvian investigational, legal, and procedural documentation, along with their translations and diplomatic certifications, Magistrate Judge J. Andrew Smyser conducted an extradition hearing pursuant to 18 U.S.C. § 3184. (Extradition Hr'g Trs., Case No. 1:09mc107 (Docs. 24, 34)). Based upon the documentary evidence, briefing, and oral argument, Judge Smyser certified to the Secretary of State that Smith was extraditable. (Extradition Certification, Case No. 1:09mc107 (Doc. 33)). On September 17, 2009, Smith filed the instant petition for a writ of habeas corpus. (Doc. 1).
This court has jurisdiction over this case, pursuant to 28 U.S.C. § 2241. See Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006) ("An individual challenging a court's extradition order may not appeal directly, because the order does not constitute a final decision under 28 U.S.C. § 1291, but may petition for a writ of habeas corpus.").
The scope of a habeas corpus review of a magistrate judge's extradition order is extremely limited. See Sidali v. INS, 107 F.3d 191 (3d Cir. 1997). "'[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.'" Sidali, 107 F.3d at 195-96 (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)). See also Hoxha, 465 F.3d at 560. However, courts in other circuits have noted that "[h]abeas corpus review has also been expanded to include examination of procedural defects in the extradition process that are of constitutional magnitude." Ahmad v. Wigen, 726 F. Supp. 389, 396 (E.D.N.Y. 1989). Finally, questions of law are given de novo review by the habeas court, whereas question of fact are governed by a clearly erroneous standard. See, e.g., Quinn v. Robinson, 783 F.2d 776, 790-91 (9th Cir. 1986).
The court notes, preliminarily, that Smith does not argue that the magistrate judge lacked jurisdiction, nor that the crime of parricide is outside the Treaty's ambit. In the interest of completeness, however, we will address these two issues. First, the magistrate judge did, in fact, have jurisdiction over the government's extradition request under 18 U.S.C. § 3184 and the Extradition Treaty Between the United States and the Republic of Peru of July 26, 2001 ("the Treaty"). Likewise, the Treaty does extend to the crime of parricide. Article II of the Treaty deems extraditable any offense that the laws of both Peru and the United States make punishable by imprisonment for a term longer than one year. (The Treaty, Article II, Part 1, Petitioner's Ex. at 105 (Doc. 6-4 at 16)). Here, both countries criminalize the murder of one's spouse and make it punishable by a term longer than one year.*fn2
Under the constricted scope of review available to this court, we are therefore left to consider only "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Sidali, 107 F.3d at 195-96 (internal quotations omitted). A magistrate judge conducting an extradition hearing applies a probable cause standard identical to that applied in federal preliminary hearings. Sidali, 107 F.3d at 199. Thus, in assessing probable cause in an extradition hearing, the magistrate judge is only required "to determine whether there is competent evidence to justify holding the ...