Luna v. O'Keefe

Filing 19

Order by Judge Lucy H. Koh Denying 11 Motion to Stay; Granting Temporary Stay Pending Resolution of Petitioners Anticipated Motion to Stay Pending Appeal in the Ninth Circuit. (lhklc2S, COURT STAFF) (Filed on 5/14/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ISRAEL RAMIREZ LUNA,
Petitioner,

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER'S
MOTION FOR STAY OF
EXTRADITION PENDING APPEAL;
GRANTING TEMPORARY STAY
PENDING RESOLUTION OF
PETITIONER’S ANTICIPATED
MOTION TO STAY PENDING APPEAL
IN THE NINTH CIRCUIT

v.
DONALD O'KEEFE,
Respondent.

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Re: Dkt. No. 11

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On February 8, 2018, the Court denied Petitioner Israel Ramirez Luna’s habeas petition

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challenging Magistrate Judge Nathanael Cousins’s order certifying Petitioner’s extradition. See

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ECF No. 9. Thereafter, Petitioner filed a motion to stay his extradition pending appeal on

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February 22, 2018. See ECF No. 11 (“Mot.”). The government filed an opposition to Petitioner’s

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stay motion on March 5, 2018, see ECF No. 12 (“Opp.”), and Petitioner filed a reply on March 7,

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2018, see ECF No. 13 (“Reply”), and a supplemental brief on March 19, 2018. See ECF No. 15

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(“Suppl.”). Having considered the submission of the parties, the relevant law, and the record in

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this case, the Court hereby DENIES Petitioner’s motion to stay pending appeal, but GRANTS a

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER’S MOTION FOR STAY OF EXTRADITION PENDING APPEAL; GRANTING
TEMPORARY STAY PENDING RESOLUTION OF PETITIONER’S ANTICIPATED MOTION TO STAY
PENDING APPEAL IN THE NINTH CIRCUIT

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temporary stay until the resolution of Petitioner’s anticipated motion to stay pending appeal in the

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Ninth Circuit.

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“‘A stay is not a matter of right, even if irreparable injury might otherwise result.’” Nken
v. Holder, 556 U.S. 418, 433 (2009) (quoting Va. Ry. Co. v. United States, 272 U.S. 658, 672

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(1926)). Instead, it is “‘an exercise of judicial discretion.’” Id. In deciding whether to exercise its

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discretion to grant a stay pending appeal, the Court considers: “(1) whether the stay applicant has

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made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

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irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other

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parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill,

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481 U.S. 770, 776 (1987). The first two factors “are the most critical.” Nken, 556 U.S. at 434.

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United States District Court
Northern District of California

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Additionally, the Ninth Circuit has held that the first factor only requires a stay applicant to show

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that his or her appeal “raises serious legal questions, or has a reasonable probability or fair

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prospect of success.” Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir. 2011). Beyond that,

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where, as in the instant case, the government is the party opposing the stay, the third and fourth

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factors merge. Nken, 556 U.S. at 435. “The party requesting a stay bears the burden of showing

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that the circumstances justify” a stay pending appeal. Id. at 433–34.

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The Court finds that Petitioner has satisfied only one of the two “most critical” stay

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factors. Nken, 556 U.S. at 434. Specifically, Petitioner has satisfied the irreparable harm factor,

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but has failed to show that his appeal “raises serious legal questions, or has a reasonable

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probability or fair prospect of success.” Leiva-Perez, 640 F.3d at 971. With respect to irreparable

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harm, Petitioner has satisfied this factor because if the Court denies Petitioner’s stay motion and

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the government extradites Petitioner to Mexico, Petitioner’s appeal will become moot and his case

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will be dismissed. See Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986) (finding that a

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petitioner satisfied the irreparable harm factor because if the petitioner’s stay motion was denied,

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the petitioner’s “appeal will become moot and will be dismissed since [the petitioner’s] extradition

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will have been carried out”).

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER’S MOTION FOR STAY OF EXTRADITION PENDING APPEAL; GRANTING
TEMPORARY STAY PENDING RESOLUTION OF PETITIONER’S ANTICIPATED MOTION TO STAY
PENDING APPEAL IN THE NINTH CIRCUIT

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However, Petitioner falls well short of demonstrating that his appeal either presents a

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“serious legal question[]” or “has a reasonable probability or fair prospect of success.” Leiva-

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Perez, 640 F.3d at 971. In his stay motion, Petitioner asserts that his appeal presents “complex

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questions of law,” Mot. at 5, and identifies two issues in particular.

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First, Petitioner points to the question of whether Article 7 of the extradition treaty

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between the United States and Mexico incorporates the Speedy Trial Clause of the Sixth

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Amendment. Id. However, as the Court explained in its order denying Petitioner’s habeas

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petition, although the Ninth Circuit has not addressed this precise issue, numerous courts within

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the Ninth Circuit—including several courts in this district—have ruled against Petitioner’s
position that Article 7 of the extradition treaty incorporates the speedy trial right. See ECF No. 9

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United States District Court
Northern District of California

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at 7–8. Further, published decisions from other federal courts of appeal have also ruled against

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such incorporation. See id. at 9–10. On the other hand, Petitioner does not identify, and the Court

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could not find, any decision from any federal court that has ruled in favor of Petitioner’s position

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on this issue. Instead, Petitioner can only point to two out-of-circuit dissenting opinions. See id.

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at 10. Finally, another court in this district has ruled that this exact issue neither presents a serious

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legal question nor has a reasonable probability of success. See In re Gonzalez, 2015 WL 1409327,

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at *3–4 (N.D. Cal. Mar. 27, 2015) (denying a petitioner’s motion to stay certification of his

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extradition and ruling that the “issue of whether the lapse of time provision in the [Mexico-United

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States extradition] treaty incorporates the Sixth Amendment” does not either raise a serious legal

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question or have a “reasonable probability or fair prospect of success on the merits”). For all of

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the reasons stated above, this Court likewise concludes that the incorporation issue that Petitioner

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raises on appeal does not amount to a “serious legal question[]” and does not have a “reasonable

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probability or fair prospect of success on the merits.” Leiva-Perez, 640 F.3d at 971.

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Second, Petitioner identifies “the issue of probable cause” as another “complex question[]

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of law.” Mot. at 5–6. Specifically, Petitioner argues that his “habeas petition raises the question

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whether various documents constitute admissible ‘explanatory’ evidence or inadmissible

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER’S MOTION FOR STAY OF EXTRADITION PENDING APPEAL; GRANTING
TEMPORARY STAY PENDING RESOLUTION OF PETITIONER’S ANTICIPATED MOTION TO STAY
PENDING APPEAL IN THE NINTH CIRCUIT

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‘contradictory’ evidence.” Id. at 6. Petitioner’s argument is not well-taken. As an initial matter,

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for the reasons explained in the Court’s order denying Petitioner’s habeas petition, Magistrate

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Judge Cousins did not err by excluding either Dr. Katherine Raven’s expert report or the death

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certificates issued by the Guanajuato Department of the Civil Registry and the Department of

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Health as inadmissible “contradictory” evidence. See ECF No. 9 at 21–22. Further, and more

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importantly, even taking into consideration all of the evidence that Magistrate Judge Cousins

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excluded, there would still be sufficient evidence to support probable cause to believe that

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Petitioner committed aggravated homicide. See id. at 22–24; see also In re Flores Ortiz, 2011 WL

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3441618, at *7 (S.D. Cal. Feb. 9, 2011) (“‘The probable cause standard applicable in extradition
proceedings is defined in accordance with federal law and has been described as evidence

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United States District Court
Northern District of California

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sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a

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reasonable belief of the accused’s guilt.’” (quoting United States v. Wiebe, 733 F.2d 549, 553 (8th

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Cir. 1984))). As a result, the “issue of probable cause” raised in Petitioner’s appeal also does not

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amount to a “serious legal question[]” and does not have a “reasonable probability or fair prospect

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of success on the merits.” Leiva-Perez, 640 F.3d at 971.

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In sum, Petitioner’s appeal does not present any “serious legal questions” and does not

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carry even a “fair prospect of success on the merits.” Id. This alone is arguably sufficient grounds

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on which to deny Petitioner’s stay motion. See Gonzalez, 2015 WL 1409327, at *2–4 (denying

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the petitioner’s stay motion and concluding that although the petitioner satisfied the irreparable

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harm factor, because the petitioner failed to “demonstrate that his case raises serious legal

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questions, or has a reasonable probability or fair prospect of success on the merits, the court need

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not address the two remaining [stay] factors”). However, even considering the two remaining stay

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factors—which, in the instant case, merge into one “public interest” factor because the

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government is the party opposing Petitioner’s stay motion, see Nken, 556 U.S. at 435—that factor

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does not weigh in favor of a stay. On the contrary, “the public interest will be served by the

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United States complying with a valid extradition application from [Mexico] under the” extradition

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER’S MOTION FOR STAY OF EXTRADITION PENDING APPEAL; GRANTING
TEMPORARY STAY PENDING RESOLUTION OF PETITIONER’S ANTICIPATED MOTION TO STAY
PENDING APPEAL IN THE NINTH CIRCUIT

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treaty between Mexico and the United States.” Artukovic, 784 F.2d at 1356. Further, “[s]uch

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compliance promotes relations between the countries, and enhances efforts to establish an

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international rule of law and order.” Id.

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Consequently, Petitioner’s motion to stay his extradition pending his appeal to the Ninth
Circuit is DENIED. However, in his supplemental brief, Petitioner requests “a temporary stay to

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permit [Petitioner] time to move for a stay in the Ninth Circuit” pursuant to Ninth Circuit Rule 27-

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2 “in the event [Petitioner’s] stay [motion] is denied.” Suppl. at 2. The government does not

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oppose this request. The Court concludes that it is appropriate to GRANT Petitioner’s request for

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a temporary stay of Petitioner’s extradition pending the resolution of Petitioner’s anticipated stay

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motion in the Ninth Circuit. Thus, Petitioner’s extradition is hereby stayed for at least seven days

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United States District Court
Northern District of California

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pursuant to Rule 27-2. If Petitioner seeks a stay in the Ninth Circuit within seven days of this

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order, the Court will stay Petitioner’s extradition until the Ninth Circuit rules on Petitioner’s stay

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motion. On the other hand, if Petitioner does not seek a stay in the Ninth Circuit within seven

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days of this order, then this Court’s temporary stay of Petitioner’s extradition will expire seven

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days after the entry of this order. The parties are hereby ORDERED to update the Court regarding

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whether Petitioner moves for a stay in the Ninth Circuit no later that seven days from the date of

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this order.

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IT IS SO ORDERED.

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Dated: May 14, 2018
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 17-CV-02129-LHK
ORDER DENYING PETITIONER’S MOTION FOR STAY OF EXTRADITION PENDING APPEAL; GRANTING
TEMPORARY STAY PENDING RESOLUTION OF PETITIONER’S ANTICIPATED MOTION TO STAY
PENDING APPEAL IN THE NINTH CIRCUIT