Avila-Ramos v. Kammerzell

Filing 55

ORDER DENYING PETITION FOR HABEAS CORPUS. 1. Avila-Ramos's petition for a writ of habeas corpus 1 is DENIED; 2. Avila-Ramos's Motion for Appointment of Counsel 40 is GRANTED and the Federal Public Defender's Office is APPOINTED to represent Avila-Ramos; 3.The stay of execution on the Certification Order entered at 16-cr-170, ECF No. 189, is EXTENDED for 30 days after entry of judgment; and 4.The Clerk shall enter final judgment in favor of Respondents and shall terminate this case, by Judge William J. Martinez on 1/11/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-1221-WJM-KLM
MIRELLA IVONNE AVILA-RAMOS,
Petitioner,
v.
JOHN L. KAMMERZELL, United States Marshal for the District of Colorado, and
KENNETH DEAL, Acting United States Marshal for the District of Colorado,
Respondents.

ORDER DENYING PETITION FOR HABEAS CORPUS

The United Mexican States (“Mexico”) accuse Petitioner Mirella Ivonne AvilaRamos (“Avila-Ramos”) of conspiring to have her husband murdered in Mexico. Very
briefly stated, the principal evidence asserted by Mexican authorities against her
comprises: (1) the fact that two attempts were made on Avila-Ramos’s husband’s life
(the second one succeeding) and Avila-Ramos was present for both but completely
uninjured; (2) text messages between Avila-Ramos and a man with whom she was
having an extramarital affair, Arturo Heriberto Herrera Rey (“Herrera”), along with closein-time text messages in turn between Herrera and the gunman who carried out the
murder, all of which tend to show, aside from general motive, that Herrera and the
gunman knew details of Avila-Ramos’s husband’s movements that they likely would not
have known unless learned from Avila-Ramos; (3) Herrera’s report that Avila-Ramos
had expressed a wish that her husband had died in the f irst attempt on his life; and (4)
a Mexican court’s conclusion, in the trial of Herrera for the murder, that he had

conspired with Avila-Ramos to commit the murder.
Mexico seeks Avila-Ramos’s extradition to stand trial for that alleged offense.
United States Magistrate Judge Nina Y. Wang (“the Magistrate Judge”) certified that
Avila-Ramos is extraditable from the United States to Mexico under federal statutes
governing extradition and under the extradition treaty between the United States and
Mexico, 31 U.S.T. 5059, 1980 WL 309106 (“Extradition Treaty”). (See United States v.
Avila-Ramos, 15-mj-1087-NYW, ECF No. 181 (D. Colo. May 6, 2016) (“Certification
Order”).)1
Avila-Ramos now seeks habeas corpus relief from the Certification Order,
invoking the general habeas statute, 28 U.S.C. § 2241. (ECF No. 1.) Av ila-Ramos was
represented by court-appointed CJA counsel through the briefing on the merits of her
habeas petition, although counsel later moved to withdraw because certain of his CJA
payment requests had yet to be approved, apparently due to lack of sufficient CJA
funds budgeted for this matter. (ECF No. 26 at 4.) The Court granted that motion to
withdraw. Soon afterward, however, Avila-Ramos’s counsel filed a motion to reconsider
this ruling, claiming that he never truly meant to withdraw, but simply wanted to bring
the hardship of non-payment to the Court’s attention. (ECF No. 33 ¶ 6.) The Court
denied reconsideration, expressing its “concerns about the propriety of [counsel’s]
approach” and otherwise finding “lack of good cause.” (ECF No. 37.) Counsel then
filed a motion to reconsider the denial of reconsideration (ECF No. 38), which the Court
also denied (ECF No. 43). Finally, Avila-Ramos herself filed a Motion for Appointment

1

Per 18 U.S.C. § 3184, United States Magistrate Judges may review and issue final
rulings on extradition requests.

2

of Counsel through the Court’s civil pro bono program, D.C.COLO.LAttyR 15. (ECF No.
40.) That motion remains pending.
For the reasons explained below, the Court finds that Avila-Ramos is not entitled
to habeas relief, and therefore denies her petition. With regard to her Motion for
Appointment of Counsel, the Court construes it broadly for appointment of counsel from
any source available to the Court (not just from the civil pro bono panel), and grants it,
appointing the Federal Public Defender to assist Avila-Ramos to consider her options at
this point.
I. STANDARD OF REVIEW
Extradition is governed generally by 18 U.S.C. §§ 3181–96. The Magistrate
Judge thoroughly explained the extradition process (Certification Order at 1–4) and the
Court need not repeat that explanation here, except to the extent it becomes relevant to
certain arguments addressed below. For present purposes, it is enough to state that
the Magistrate Judge’s task was to review whether the Government had satisfied the
following six requirements:
(1) the court has subject matter and personal jurisdiction;
(2) a valid extradition treaty exists between the United States
and the foreign requesting state; (3) the required documents
were presented in accordance with United States law,
translated and duly authenticated by the United States
consul; (4) the pending criminal charge in the foreign
requesting state is appropriate under the extradition treaty;
(5) the Respondent is the person sought; and (6) there is
sufficient evidence to establish probable cause that a crime
was committed and that the person before the court
committed that crime.
(Certification Order at 9.) Assuming the Magistrate Judge finds all elements in favor of
the Government, the Magistrate Judge then certifies that the respondent may be
3

extradited, but does not actually order the respondent’s extradition—that remains within
the Secretary of State’s discretion. (Id. at 4.)
Habeas review of the Magistrate Judge’s certification does not permit this Court
to conduct a de novo review of all elements that the Magistrate Judge examined.
Rather, this Court is limited to “[1] determining whether the magistrate judge had
jurisdiction, [2] whether the offense charged is within the treaty, and . . . [3] whether
there was any evidence warranting finding that there was a reasonable ground to
believe the accused was guilty.” Smith v. United States, 82 F.3d 964, 965 (10th Cir.
1996).
The third element (review of the probable cause determination) is intentionally
“narrower” than the task the Magistrate Judge undertakes to decide whether probable
cause exists. Peters v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989). W hereas the
Magistrate Judge must decide whether the facts presented would “warrant a person of
reasonable caution to have the belief that an offense has been or is being committed
by” the respondent, Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011), the
habeas court applies a “lenient standard” of review, asking only whether “there is any
evidence of probable cause,” Peters, 888 F.2d at 717 (internal quotation marks omitted;
emphasis in original).
II. ANALYSIS
A.

Jurisdiction
Avila-Ramos argues that the Magistrate Judge lacked subject matter jurisdiction

because extradition proceedings supposedly were not properly instituted against her.

4

(ECF No. 1 at 30–35; ECF No. 20 at 5, 11–15.) Assum ing without deciding that this
argument actually addresses subject matter jurisdiction, the Court rejects it. The
Court’s reasoning requires a certain amount of background on the process of
extraditing an individual to Mexico.
The Extradition Treaty contemplates that most extradition proceedings will begin
through that Treaty’s Article 10, which reads in relevant part as follows:
1.- The request for extradition shall be made through the
diplomatic channel.
2.- The request for extradition shall contain the description of
the offense for which extradition is requested and shall be
accompanied by:
a) A statement of the facts of the case;
b) The text of the legal provisions describing the
essential elements of the offense;
c) The text of the legal provisions describing the
punishment for the offense;
d) The text of the legal provisions relating to the time
limit on the prosecution or the execution of the punishment
of the offense;
e) The facts and personal information of the person
sought which will permit his identification and, where
possible, information concerning his location.
3.- In addition, when the request for extradition relates to a
person who has not yet been convicted, it shall be
accompanied by:
a) A certified copy of the warrant of arrest issued by a
judge or other judicial officer of the requesting Party;
b) Evidence which, in accordance with the laws of the
requested Party, would justify the apprehension and
commitment for trial of the person sought if the offense had
5

been committed there.
***
5.- All the documents that must be presented by the
requesting Party in accordance with the provisions of this
Treaty shall be accompanied by a translation in the
language of the requested Party.
6.- The documents which, according to this Article, shall
accompany the request for extradition, shall be received in
evidence when:
a) In the case of a request emanating from the United
States, they are authenticated by the official seal of the
Department of State and legalized by the manner prescribed
by the Mexican law;
b) In the case of a request emanating from the United
Mexican States, they are certified by the principle diplomatic
or consular officer of the United States in Mexico.
But Article 10 is not the only way an extradition proceeding may begin. Article 11
establishes a summary procedure by which the requesting party may seek the
accused’s “provisional arrest,” followed by the full Article 10 requirements within 60
days:
1.- In the case of urgency, either Contracting Party may
request, through the diplomatic channel, the provisional
arrest of an accused or convicted person. The application
shall contain a description of the offense for which the
extradition is requested, a description of the person sought
and his whereabouts, an undertaking to formalize the
request for extradition, and a declaration of the existence of
a warrant of arrest issued by a competent judicial authority
or a judgment of conviction issued against the person
sought.
2.- On receipt of such a request, the requested Party shall
take the necessary steps to secure the arrest of the person
claimed.
6

3.- Provisional arrest shall be terminated if, within a period of
60 days after the apprehension of the person claimed, the
executive authority of the requested Party has not received
the formal request for extradition and the documents
mentioned in Article 10.
Avila-Ramos was arrested on a provisional warrant, and the full Article 10
request was submitted 59 days later. (See Certification Order at 5.) She argues,
however, that the provisional arrest was improper because the Secretary of State never
certified—prior to directing the United States Attorney to institute proceedings—that
Mexico’s request for a provisional arrest was properly made. (ECF No. 1 at 30–31.)
“[C]oncededly,” she says, “a plain reading of the [Extradition Treaty] does not explicitly
set forth such a requirement.” (Id. at 31.) But she claims that the requirement exists
independent of the treaty language—apparently as a matter of federal common law—
whenever formal extradition requirements are relaxed, such as in the provisional arrest
process. (Id. at 30–31.)
As support for this proposition, Avila-Ramos principally cites four cases. The first
is Grin v. Shine, 187 U.S. 181, 193–94 (1902), where the Supreme Court quoted the
then-existing extradition treaty with Russia, which happened to contain a requirement
that the Secretary of State review any request for provisional arrest before forwarding it
to law enforcement officials. Nothing in Grin turned on this requirement, nor did the
Supreme Court suggest that the requirement would have existed independent of the
treaty in question. Accordingly, Grin provides no support for Avila-Ramos’s argument.
The second case Avila-Ramos cites is similar. In Charlton v. Kelly, 229 U.S.
447, 450 (1913), the Supreme Court quoted the then-existing extradition treaty with

7

Italy, which contained a pre-approval condition similar to that in the Russian treaty. But
again, nothing turned on that provision, and the Supreme Court nowhere suggested
that the requirement existed independent of the treaty. Thus, Charlton likewise
provides no support for Avila-Ramos’s argument.
The third case Avila-Ramos cites is Blaxland v. Commonwealth Director of Public
Prosecutions, 323 F.3d 1198 (9th Cir. 2003). Blaxland was a civil lawsuit against
certain Australian officials who allegedly perjured themselves to secure the plaintiff’s
extradition from the United States to Australia on charges of which he was ultimately
acquitted. Id. at 1201–02. In a general description of the extradition process (not in
any statement about the differences between provisional and formal arrest), the Ninth
Circuit included the following statement: “After the request has been evaluated by the
State Department to determine whether it is within the scope of the relevant extradition
treaty, a United States Attorney, if so instructed, files a complaint in federal district court
seeking an arrest warrant for the person sought to be extradited.” Id. at 1207.
Avila-Ramos correctly points out that the Ninth Circuit did not derive this
requirement from the express terms of any treaty. (ECF No. 1 at 31.) Indeed, the U.S.Australia extradition treaty, like the U.S.-Mexico treaty at issue here, contains no
requirement that the State Department certify the propriety of an extradition request,
provisional or formal, before forwarding it to the relevant United States Attorney
(although, as with Mexico, the certification of the senior U.S. diplomatic official in
Australia is required for the formal request to be received into evidence). See 27 U.S.T.
957, 1976 WL 166695, arts. XI–XII. Where, then, did the Ninth Circuit locate the

8

requirement of State Department pre-approval?
Blaxland derives this proposition from a “see generally” cite to Barapind v. Reno,
225 F.3d 1100, 1105 (9th Cir. 2000), which encompasses the following:
The extradition process is ordinarily initiated by a formal
request from a foreign government to the Department of
State, which[,] along with the Department of Justice,
evaluates whether the request is within the scope of the
relevant extradition treaty between the United States and the
requesting nation. See Cornejo-Barreto[ v. Seifert ], 218
F.3d [1004,] 1009 [(9th Cir. 2000)]. Once approved, the
United States Attorney for the judicial district where the
person sought is located files a complaint in federal district
court seeking an arrest warrant for the person sought. See
id.
Id. The cited Cornejo-Barreto decision, in turn, cites the entirety of the Restatement
(Third) of Foreign Relations Law (“Restatement”) § 478 (1986). See Cornejo-Barreto,
218 F.3d at 1009, overruled on other grounds by Trinidad y Garcia v. Thomas, 683 F.3d
952 (9th Cir. 2012). The body of the Restatement § 478 says nothing about the State
Department’s duty to pre-approve extradition requests (provisional or formal). However,
the commentary contains the following:
Ordinarily, a request for extradition from the United States is
submitted by the requesting state through diplomatic
channels to the Department of State. If the Department
considers the request to be within the applicable treaty, it
transmits the request to the Department of Justice. The
Department of Justice determines whether the request
meets the conditions for extradition, and if so forwards the
request to the United States Attorney for the judicial district
in which the person sought is believed to be located. The
United States Attorney files a complaint based on the
request with the appropriate district judge or magistrate and
applies for a warrant for arrest of the person sought.
Restatement § 478 cmt. a (citations omitted). This again says nothing about the
9

distinction between provisional and formal requests. Moreover, the very next sentence
belies any notion that this describes some sort of federal common law requirement: “A
request for extradition may also be filed with a court directly by a diplomatic or consular
officer of the requesting state, or by an attorney authorized to act on behalf of that
state, but this practice has become rare.” Id. If this possibility exists, however rare, it
undermines any claim that State Department pre-approval is required. This is likely why
the Restatement couches the entire first portion of the comment with “[o]rdinarily”
instead of “by law” or some similar mandatory language.
Moreover, the Restatement elsewhere acknowledges that it derives its rules from
“a network of treaties, national laws, and state practice differing in detail but forming a
common pattern of extradition law and procedure.” Restatement § 475 cmt. a.
Perhaps most U.S. extradition treaties contain a provision—such as those contained in
the treaties with Russia and Italy discussed in Grin and Charlton, respectively—
requiring the State Department to sign off on any extradition request before a United
State Attorney can seek an arrest warrant. If so, then the Restatement’s description of
such preapproval probably is what “ordinarily” happens. But Avila-Ramos does not
show how this supposedly ordinary practice can then morph into a jurisdictional
requirement applicable to all extradition treaties.
Thus, Avila-Ramos’s citation to Blaxland is unavailing. Blaxland offers nothing
more than a generic description of extradition procedure derived ultimately from the
Restatement, which is itself generic and which describes State Department preapproval only as an ordinary practice, not a requirement (much less a jurisdictional
requirement).
10

Avila-Ramos’s fourth citation is to Prasoprat v. Benov, 421 F.3d 1009 (9th Cir.
2005), which quotes and cites Blaxland ’s generic description of extradition procedure,
including the supposed need for State Department pre-approval. Id. at 1012. Nothing
in Prasoprat turned on this alleged requirement. Thus, Prasoprat is no more
authoritative than Blaxland on this matter.
Avila-Ramos’s attempt to provide a policy explanation for the supposed preapproval requirement is also flawed. Avila-Ramos says that State Department preapproval “must be required” for provisional arrests because of the abbreviated
requirements for such arrests as compared to formal extradition requests. (ECF No. 1
at 31.) Avila-Ramos seems to be implying that State Department pre-approval is a sort
of due process overlay on the provisional arrest process—something needed to protect
potential subjects of extradition in the absence of the detailed formal submission. This
argument further implies, however, that the provisional arrest process would somehow
violate due process absent State Department pre-approval, as opposed to the formal
requirements which satisfy due process on their own. Avila-Ramos cites nothing to
support such a claim. In particular, Avila-Ramos does not explain why the Senate could
not have ratified a treaty that contained no provisional/formal distinction and instead
contained a single form of extradition request that required nothing more than what is
currently required for a provisional request under the Extradition Treaty. See Charlton,
229 U.S. at 463–64 (“Congress has a perfect right to provide for the extradition of
criminals in its own way . . . and to declare that foreign criminals shall be surrendered
upon such proofs of criminality as it may judge sufficient.”).

11

In short, the lack of State Department pre-approval for Avila-Ramos’s provisional
arrest did not deprive the Magistrate Judge of jurisdiction to hear the extradition
request.
In her reply brief, Avila-Ramos extends her jurisdictional argument to assert that
essentially everything involved in the process of requesting extradition is “jurisdictional”:
“[The Magistrate Judge] never acquired lawful jurisdiction due to . . . Mexico’s failure to
file valid requests for Petitioner’s provisional arrest and a formal request for extradition
that conforms to the requirements of the U.S.-Mexico extradition treaty.” (ECF No. 20
at 5–6 (underscoring in original).) Avila-Ramos particularly argues that “the evidence
proffered in Mexico’s request for provisional arrest and in its formal request was not
complete and was not accurately-translated. As a result, the evidence presented by
Mexico did not vest jurisdiction in the magistrate judge’s court . . . .” (Id. at 6.) But
nothing in the Extradition Treaty or any other authority suggests that the completeness
of the evidence or the accuracy of translation is a jurisdictional issue. Indeed, if AvilaRamos were correct, then habeas review of extradition proceedings would be almost
entirely de novo, rather than the limited review currently provided. Avila-Ramos is
therefore not entitled to habeas relief on lack-of-jurisdiction grounds.
B.

Charged Offense Within the Treaty
Avila-Ramos does not claim that the crime with which she is charged in Mexico is

outside of the Extradition Treaty, nor could there be any such challenge, given that
murder is the first item in the Treaty’s list of extraditable offenses. See Extradition
Treaty, app’x § 1.

12

C.

Probable Cause
Finally, the Court turns to whether “there is any evidence of probable cause.”

Peters, 888 F.2d at 717 (internal quotation marks omitted; emphasis in original). The
Court finds this standard satisfied. The evidence against Avila-Ramos is entirely
circumstantial, and is not overwhelming. (See ECF No. 17 at 12–15 (summary of
evidence presented).) It nonetheless plausibly suggests motive and opportunity to have
her husband killed. The Court therefore cannot say that there is no evidence that would
“warrant a person of reasonable caution to have the belief that [the] offense [of
conspiring to murder her husband] has been . . . committed by” Avila-Ramos. Koch,
660 F.3d at 1239. Thus, the Court cannot overturn the Magistrate Judge’s probable
cause finding.
III. APPOINTMENT OF COUNSEL & TEMPORARY STAY
As for her motion for appointment of counsel, although Avila-Ramos specifically
seeks counsel from the Court’s civil pro bono panel, the Court construes her motion
more broadly for appointment of counsel from whatever source the Court may draw
upon. Avila-Ramos has already established her financial eligibility for appointment of
counsel under the Criminal Justice Act, 18 U.S.C. § 3006A. (See 15-mj-1087-NYW,
ECF Nos. 6, 14.) The Criminal Justice Act permits the Court to appoint an attorney
from the Federal Public Defender’s office for financially eligible persons “seeking relief
under [28 U.S.C. §] 2241,” so long as the Court “determines that the interests of justice
so require.” 18 U.S.C. § 3006A(a)(2)(B), (3)(B). The Court determines that the
interests of justice require appointment of the Federal Public Defender’s office, at a

13

minimum, to provide proper advice to Avila-Ramos regarding the appropriateness of an
appeal. Accordingly, the Court will grant Avila-Ramos’s motion for appointment of
counsel and appoint the Federal Public Defender’s office.
In addition, to provide Avila-Ramos and her new counsel an opportunity for such
consultation, the previously-entered stay of execution on the Certification Order (see
16-cr-170, ECF No. 189) will be extended for 30 days after entry of judgment.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Avila-Ramos’s petition for a writ of habeas corpus (ECF No. 1) is DENIED;

2.

Avila-Ramos’s Motion for Appointment of Counsel (ECF No. 40) is GRANTED
and the Federal Public Defender’s Office is APPOINTED to represent AvilaRamos;

3.

The stay of execution on the Certification Order entered at 16-cr-170, ECF No.
189, is EXTENDED for 30 days after entry of judgment; and

4.

The Clerk shall enter final judgment in favor of Respondents and shall terminate
this case.
Dated this 11th day of January, 2017.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

14