Bisram v. Quay et al
Filing
14
MEMORANDUM AND ORDER, For the foregoing reasons, the petition for a writ ofhabeas corpus is denied as is petitioner's 12 motion for an evidentiary hearing. The Clerk of Court is respectfully requested to enter judgment denying and dismissing the petition and to close the case. (Ordered by Judge Kiyo A. Matsumoto on 10/29/2018) c/m Fwd. for Judgment. (Galeano, Sonia)
FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.
* OCT3a,2018 *
UNITED STATES DISTRICT COURT
EASTERN
DISTRICT OF NEW
YORK
^ BROOKLYN OFFICE
MARCUS BRIAN JAINARINE BISRAM,
Petitioner,
MEMORANDUM & ORDER
17-CV-6730 (KAM)
- against WARDEN HERMAN QUAY of METROPOLITAN
DETENTION CENTER and UNITED STATES OF
AMERICA,
Respondents.
•X
MATSUMOTO, United States District Judge:
On November 17, 2017, petitioner Marcus Brian
Jainarine Bisram ("petitioner" or "Bisram") filed the above-
captioned petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging Magistrate Judge Kuo's Certificate of
Extraditability and Order of Commitment.
For the reasons stated
below, the petition is DENIED.
BACKGROUND
I.
Extradition Proceedings
Petitioner is a United States citizen.
ECF No. 10 at 2.)1
(17-MJ-597,
By complaint filed on July 5, 2017, the
United States government sought the extradition of petitioner to
Guyana.
(17-MJ-597, ECF No. 1.)
According to the complaint, on
March 7, 2017, a Guyanese court issued a warrant for
^ The court refers to the page numbers assigned by the Electronic Court Filing
("ECF") System.
r>M
petitioner's arrest.^
(Id. SI 5.)
The warrant alleged that
petitioner hosted a party at his house in Guyana on October 31,
2016.
(Id. SI 6(a}.)
At that party, petitioner approached
Fiayaz Narinedatt (the ^Victim") and touched the victim's body,
including his penis and buttocks.
(Id.)
victim slapped petitioner numerous times.
In response, the
(Id.)
Petitioner
left the victim and went over to five other guests and told them
to kill the victim.
(Id.)
Those guests proceeded to beat the
victim, first on petitioner's yard and then on the road, while
petitioner stated again that the guests should beat the victim
until he was dead.
(Id. SI 6(b), (c).)
Two of the guests beat
and threw the victim into a drain, and the other two removed him
from the drain, placed him in the trunk of a car, and drove off.
(Id. SI 6(c).)
On November 1, 2016, the victim's dead body was
found on a road in Guyana and an examination revealed that the
causes of death were ''cerebral hemorrhage with multiple skull
fractures, spinal fracture, ruptured spleen and liver, fractured
arm, and pulmonary contusions."
(Id. SI 6(d).)
In addition to the complaint, the government submitted
three exhibits.
The first exhibit included, inter alia,
information regarding the extradition treaty between the United
2 The original information and warrant for petitioner's arrest were issued on
November 24, 2016. (17-MJ-597, ECF No. 8-1 at 137-38.) They were dismissed
on March 6, 2017, and then reinstated on March 7, 2017. (Id. at 138; see
also ECF No. 10-2, Affidavit of Sanjeev J. Datadin ("Datadin Aff.") 2 4.)
States and Guyana (17-MJ-597, ECF No. 1-1, Ex. 1 at 2-4), the
Guyanese Ministry of Foreign Affairs' Extradition Request for
petitioner with respect to "the offense of Murder . . ,
accessory before the fact" (id. at 5-9), and a statement by a
Guyanese police officer describing the eyewitness statement of
Chaman Chunilall ("Chunilall") (id. at 49-52, 55).
The second
exhibit included, inter alia, handwritten statements by
witnesses implicating petitioner in the murder of the victim and
a forensic report regarding the victim.
2, Ex. 2.)
(17-MJ-597, ECF No. 1-
The third exhibit included, inter alia, statements
from criminal investigators and police force members describing
their investigation of the underlying crime (17-MJ-597, ECF No.
1-2, Ex. 3, 1-6), the Guyanese warrant for petitioner's arrest
(id. at 12, 14, 33), and a statement confirming that Chunilall
identified petitioner in a photograph as the person he described
in a prior statement as ordering others to beat and kill the
victim (id. at 22).
The extradition matter was assigned to Magistrate
Judge Kuo.
Magistrate Judge Kuo held two hearings regarding
petitioner's extradition - on September 26, 2017 and October 2,
2017.
(17-MJ-597, ECF entries dated 9/26/17, 10/3/2017; ECF No.
19, Transcript of September 26, 2017 Hearing ("9/26/17 Tr.");
ECF No. 20, Transcript of October 2, 2017 Hearing (^'10/2/17
Tr.'').)
In petitioner's submissions to the court regarding
extradition, he referenced various ongoing proceedings in
Guyanese courts regarding the underlying criminal matter.
MJ-597, ECF Nos. 7, 12.)
(17-
In a letter dated September 7, 2017,
petitioner's counsel represented that there had ^'been a complete
recantation in the court of the main witness against Mr. Bisram
in this matter," and that petitioner's local Guyanese counsel
was therefore moving to ^^quash the charges against" petitioner
in Guyana.
(17-MJ-597, ECF No. 12.)
Counsel similarly
represented to Magistrate Judge Kuo at hearings on September 26,
2017 and October 2, 2017, that the Guyanese court was
considering dismissing the charges.
(17-MJ-597, ECF No. 19,
9/26/17 Tr. at 4-5; ECF No. 20, 10/2/17 Tr. at 3.)
The United
States government has represented that '"were there not to be
charges in Guyana, . . . the Department of State would not
extradite the defendant in this case."
(17-MJ-597, ECF No. 19,
9/26/17 Tr. at 6.)
At the September 26, 2017 hearing, petitioner's
counsel argued that the witnesses had ^^recanted their testimony"
and, as a result, '"their credibility has become a grave problem
to the prosecution in Guyana."
{Id. at 3.)
At the hearing on
October 2, 2017, petitioner's counsel argued that the three
eyewitness accounts provided in support of extradition are
unreliable.
He argued that two were given under ''coercion and
duress," subsequently recanted in court, and quashed by the
Guyanese court.
(17-MJ-597, ECF No. 20, 10/2/17 Tr. at 19-20.)
He explained that the third eyewitness account, from Chunilall,
is unreliable because it was given by a sixteen-year old who
cannot read or write, placed his thumbprint on a statement that
he did not understand, and identified petitioner at his mother's
direction.
(Id. at 20-22.)
On October 10, 2017, petitioner filed a letter
informing the court that the Guyanese judge had "reserved
decision on dismissal until October 30, 2017."
No. 15.)
(17-MJ-597, ECF
Two days later, on October 12, 2017, Magistrate Judge
Kuo issued a Certificate of Extraditability and an Order of
Commitment.
(17-MJ-597, ECF No. 17, Certificate of
Extraditability and Order of Commitment.)
II.
Instant Action
On November 17, 2017, petitioner filed the instant
petition for a writ of habeas corpus challenging Magistrate
Judge Kuo's Certificate of Extraditability.
Petition ("Pet.").)
28, 2018.
(ECF No. 1,
The petition was fully briefed as of April
On May 22, 2018, petitioner requested an evidentiary
hearing to present testimony from the "witnesses accusing Mr.
Bisram" (ECF No. 12, Request for Evidentiary Hearing), which the
government opposed on June 6, 2018 (ECF No. 13, Opposition to
Request for Evidentiary Hearing).
LE62UL STi^AHD
Pursuant to 18 U.S.C. § 3184, a magistrate judge may
consider evidence of criminality and the applicable extradition
treaty to determine whether an individual may be extradited to a
foreign nation.
If a magistrate judge finds that an individual
is extraditable, she must ''certify . . . to the Secretary of
State[] that a warrant may issue upon the requisition of the
proper authorities of such foreign government, for the surrender
of such person, according to the stipulations of the treaty or
convention[.]"
18 U.S.C. § 3184.
The Secretary of State has
final and discretionary authority to extradite the fugitive.
18
U.S.C. §§ 3184, 3186; see also La Duca v. United States, 93 F.3d
1100, 1103 {2d Cir. 1996) ("[T]he Secretary of State has final
authority to extradite the fugitive, but is not required to do
so.").
Extradition orders "may only be reviewed by a petition
for a writ of habeas corpus under 28 U.S.C. § 2241."
V. United States, 667 F.3d 144, 157 (2d Cir. 2011).
Skaftouros
On
collateral review of an extradition order, the district court
may only "inquire whether the magistrate 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 a reasonable ground to
believe the accused guilty."
Id. (internal quotation marks
omitted) (quoting Fernandez v. Phillips, 268 U.S. 311, 312
(1925)).
Although the district court is not "expected to wield
a rubber stamp," id. at 158, "[t]he scope of such review is
limited and should not be converted into a de novo review of the
evidence," Melia v. United States, 667 F.2d 300, 302 (2d Cir.
1981).
Additionally, the Second Circuit has held that "in order
to merit habeas relief in a proceeding seeking collateral review
of an extradition order, the petitioner must prove by a
preponderance of the evidence that he is in custody in
violation" of 18 U.S.C. § 3184 or the applicable extradition
treaty.
Skaftouros, 667 F.3d at 158 (internal quotation marks
omitted).
DISCUSSION
Throughout the proceedings, petitioner has maintained
consistently that he is not challenging the court's jurisdiction
to preside over the matter of extradition [see, e.g., 17-MJ-597,
EOF No. 10 at 1; EOF No. 1, Pet. at 6), but that he is
challenging whether there was probable cause to warrant
extradition (see, e.g., 17-MJ-597, EOF No. 19, 9/26/17 Tr. at
10-11; EOF No. 1, Pet. at 9-12).
His position with respect to
the existence of a valid extradition treaty between the United
States and Guyana, however, has been inconsistent.
The court
first addresses the issue of a valid treaty and then addresses
the sufficiency of the evidence.
I.
Extradition Treaty
In papers submitted to Magistrate Judge Kuo,
petitioner initially argued that there is not a valid
extradition treaty between the United States and Guyana.
MJ-597, ECF No. 10 at 6.)
(17-
However, at two subsequent hearings,
petitioner's counsel implicitly conceded that a valid
extradition treaty exists between the United States and Guyana
by confirming that the only issue for Magistrate Judge Kuo to
decide was that of probable cause.
(17-MJ-597, ECF No. 19,
9/26/17 at 10 (^'The only dispute . . . we have. Judge, is the
probable cause."); ECF No. 20, 10/2/17 Tr. at 11-12 (^^THE COURT:
We're only talking about probable cause, is that right?
[PETITIONER'S COUNSEL]: Yes, your Honor.").)
Similarly, in the instant habeas action, petitioner
initially challenged the existence of a valid treaty.
(ECF No.
1, Pet. SI 11 (^'The Supreme Court of Guyana has called into doubt
the Treaty.").)
In his reply brief to the government's
opposition, however, petitioner appears to have again conceded
the treaty issue, stating that his ^^challenge to his extradition
is a limited challenge: the question before the court is whether
there is probable cause to try the accused, not whether he is
guilty."
(ECF No. 10, Petitioner's Reply {''Pet. Reply") at 4.)
The Second Circuit has held that extraditees waive
non-jurisdictional challenges on habeas review by failing to
raise such issues at their extradition hearings.
See Lo Duca,
93 F.3d at 1111 (finding extraditee waived non-jurisdictional
objection by failing to raise the objection at the extradition
hearing); Jhirad v. Ferrandina, 536 F.2d 478, 486 (2d Cir. 1976)
("Non-jurisdictional objections must, of course, be timely
raised or they are waived."); see also Austin v. Healey, 5 F.3d
598, 604 n.4 (2d Cir. 1993) (declining to consider non-
jurisdictional argument made for the first time on appeal).
Because petitioner clearly abandoned his challenge to the
existence of a valid treaty at the extradition hearing, the
court finds that petitioner has waived his right to raise the
issue in his habeas proceedings.
Similarly, Magistrate Judge
Kuo did not err by not addressing the issue of the validity of
an extradition treaty.
Assuming, arguendo, petitioner had not waived the
issue of a valid treaty, the court would nonetheless find that
one exists.
"The question whether power remains in a foreign
state to carry out its treaty obligations is in its nature
political and not judicial, and the . . . courts ought not to
interfere with the conclusions of the political department in
that regard."
In re Extradition of Sacirbegovic, No. 03-cr-01,
2005 WL 107094, at *10 (S.D.N.Y. Jan. 19, 2005) (alteration in
original) (internal quotation marks omitted) (quoting Terlinden
V, Ames, 184 U.S. 270, 288 (1902)).
Accordingly, circuit courts
that have considered whether a valid treaty continues to exist
between the United States and another country have ''typically
deferred to the executive branch's determination."
Id.
(collecting cases).
The United States signed an extradition treaty with
the United Kingdom on December 22, 1931 (the "Treaty"), while
Guyana was under the United Kingdom's control.
(17-MJ-597, ECF
No. 1-1, Declaration of Susan R. Benda ("Benda Decl.") at 2 SI
3.)
The Treaty remained in effect after Guyana obtained its
independence from the United Kingdom.
(Id.; 17-MJ-597, ECF No.
11-1, Declaration of Tom Heinemann ("Heinemann Decl.") at 2 SI 2;
see also ECF No. 1-2, In the Matter of Barry Dataram, 2008 No.
59-APL (Sup. Ct. Judicature, Civil Juris., Guyana 2008) (noting
Guyana succeeded to the 1931 extradition treaty between the
United States and the United Kingdom).)
The United States
Executive Branch has unambiguously stated that it considers the
Treaty to be in effect.
(17-MJ-597, ECF No. 11-1, Heinemann
Decl. SISI 2-8; 17-MJ-597, ECF No. 1-1, Benda Decl. SI 3.)
Moreover, the Treaty contains a mechanism for termination, which
has not been employed.
(17-MJ-597, ECF No. 11-1, Heinemann
10
Decl. SI 3-5.)
Petitioner's unsupported and intermittent
arguments that the Treaty has been "'called into doubt" are
unconvincing and not proper for the judiciary to address,
especially given the clear position of the Executive Branch.
For these reasons, the court finds that a valid extradition
treaty exists between the United States and Guyana.
II.
Sufficiency of the Evidence
Petitioner argues that the evidence before Magistrate
Judge Kuo failed to establish probable cause that he committed
the crime with which he has been charged.
The court disagrees.
In support of his argument, petitioner makes three arguments,
which the court addresses in turn.
A. Criminal Charges in Guyana
In his petition, petitioner argues that Magistrate
Judge Kuo lacked probable cause because there are no criminal
charges pending against petitioner in Guyana.
SISI 17-18, 20-22.)
(ECF No. 1, Pet
In support of this argument, he has submitted
an order from the High Court of the Supreme Court of Judicature
of Guyana dated September 28, 2017.
(ECF No. 1-1, Order from
Guyanese Court at 2 (ordering "Detective and/or the Commissioner
of Police to attend before this Court to show cause why Order or
Rule Nisi of Certiorari granted herein ought not to be made
absolute").)
Petitioner submitted the same or very similar
document to Magistrate Judge Kuo when arguing to her that the
11
charges in Guyana had been dismissed.
20, 10/2/17 at 3.)
(See 17-MJ-597, ECF No.
The government subsequently confirmed with
the United States Department of State and the Government of
Guyana that the murder charges were still pending against
petitioner in Guyana.
1.)
(17-MJ-597, ECF No. 16, Gov't Letter at
Thereafter, Magistrate Judge Kuo issued a Certificate of
Extraditability and Order of Commitment.
On its face, the Guyanese order is clearly not an
order of dismissal, but instead an order to ''show cause" why the
murder charge against petitioner should not be dismissed.
No. 1-1, Order from Guyanese Court.)
(ECF
Magistrate Judge Kuo
accurately stated as much at the October 2, 2017 hearing.
(17-
MJ-597, ECF No. 20, 10/2/17 Tr. at 23-24 ("THE COURT: It's an
order to show cause . . . why this order should not be made
final . . . .
uncertain.").)
[Rjight now [the procedural posture is] still
Moreover, in petitioner's reply brief in the
instant action, he concedes that the proceedings against
petitioner in Guyana have not been terminated.
(ECF No. 10,
Pet. Reply at 8 ("The initial motions that Guyanese counsel
filed to dismiss the proceedings have been denied and the
appeals are pending.
The proceedings in Guyana are far from
clear . . . ."); ECF No. 10-2, Datadin Aff. If 4-5 ("[The]
second charge [against Bisram] is still pending. . . .
The
charge against Bisram is that he 'counseled, procured and
12
commanded,' the murder of Fiyaz Narinedatt[.]" (emphasis
omitted)).)
Therefore, petitioner has not satisfied his burden
to demonstrate that the charges against him have been dismissed,
and his unsupported claim that they have been dismissed and that
probable cause is therefore lacking does not warrant granting
habeas relief.
B. Recantation
Petitioner argues that three of the eyewitnesses who
provided the Guyanese police with statements accusing petitioner
have recanted their statements.
10, Pet. Reply at 8.)
(ECF No. 1, Pet. SI 20; ECF No.
Although petitioner has repeatedly
asserted in this action and in the extradition action that
certain statements were recanted, the first time he provided any
such evidence was in his reply brief in the instant action and
only pertained to one witness, Chunilall.
(ECF No. 10-2,
Datadin Aff. SISI 12, 16-23; ECF No. 10-3, Deposition of Chunilall
at 2-8.)
Despite apparently having evidentiary proof of
recantations at the time, including that of Chunilall,
petitioner failed to offer the evidence to Magistrate Judge Kuo
during the extradition proceedings.
(17-MJ-597, ECF No. 19,
9/26/17 Tr. at 3 (''[T]he witnesses in the original case have all
under sworn testimony, recanted their testimony"); id. at 11
C'Chumallilo [sic] . . . is one who has completely recanted his
story . . .
And we have transcripts that say that.").)
13
Petitioner provides no excuse for his failure to introduce this
evidence before Magistrate Judge Kuo.
As an initial matter, petitioner does not provide the
court with any support for his argument that the court may
consider on review of the Magistrate Judge's certification new
evidence not submitted to the extraditing court when reviewing
that court's probable cause finding.
Even if the court were to
consider the evidence of Chunilall's alleged recantation at this
juncture, it would nonetheless find that ^'there was reasonable
ground to believe the accused guilty."
Skaftouros, 667 F.3d at
157 (citation and internal quotation marks omitted).
At most,
the newly submitted evidence ''poses a conflict of credibility
that generally should properly await trial in the requesting
country."
In re Pena-Bencosme, 341 F. App'x 681, 683 (2d Cir.
2009) (alterations omitted) (quoting Shapiro v. Ferrandina, 478
F.2d 894, 901 (2d Cir. 1973)).
Based on the evidence submitted,
it is not clear that Chunilall recanted his statement.
Instead,
he appears to be responding to leading questions in a manner
that suggests confusion on his part.
In any event, Chunilall's
recantation would not "completely obliterate probable cause[]
because it was not the sole evidence against [petitioner]."
Kapoor v. Dunne (Kapoor I), No. 12-cv-3196, 2014 WL 1803271, at
*3 (E.D.N.Y. May 7, 2014).
In addition to Chunilall's
statement, the government submitted an autopsy report
14
identifying the victim's causes of death as "cerebral hemorrhage
with multiple skull fractures, ruptured spleen and liver,
fractured arm, and pulmonary contusions" (17-MJ-597, ECF No. 1 SI
6{b)) and statements from other witnesses implicating petitioner
in the victim's murder (17-MJ-597, ECF No.1-1, Ex. 1 at 49-52,
53; 17-MJ-597, ECF No. 1-2, Ex. 2).
This evidence certainly
satisfies the requirement that there was "evidence warranting
the finding that there was reasonable ground to believe the
accused guilty."
Skaftouros, 667 F.3d at 157; see also Kapoor
V. Dunne (Kapoor II), 606 F. App'x 11, 14 {2d Cir. 2015)
(summary order) (finding that even if recantation evidence were
considered there would still be sufficient probable cause to
warrant certificate of extradition).
Moreover, under Second Circuit case law, it is
unsettled whether evidence of recantation would have been
admissible in the extradition hearing, had petitioner offered it
at that time.
"In the exercise of the extraditing judge's
discretion, a fugitive may be permitted to offer explanatory
testimony, but may not offer proof which contradicts that of the
demanding country."
Kapoor II, 606 F. App'x at 12 (quoting
Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984)).
In
Kapoor II, the Second Circuit noted a divide among the lower
courts with respect to whether "recantation evidence constitutes
contradictory evidence" and is therefore inadmissible, but it
15
declined to resolve the issue.
Id. at 13-14.
Here, because
petitioner did not attempt to offer any evidence of recantation,
the court will not speculate as to whether Magistrate Judge Kuo
would have admitted the evidence and, if so, whether it would
have affected her probable cause determination.
To the extent that petitioner argues that the witness
statements should be disregarded because they are '"illegible,"
"not typed," and "written in script," his argument is
unconvincing.
{See ECF No. 10, Pet. Reply at 7.)
are not entirely illegible.
First, they
Second, petitioner failed to raise
this argument in the extradition hearings.
Moreover, Guyana
provided an affidavit from a police officer summarizing the
statements (17-MJ-597, ECF No. 1-1, Ex. 1 at 49-52, 55; 17-MJ-
597, ECF No. 8-1 at 47-56), which petitioner did not challenge
at the extradition hearings.
To the extent petitioner has a
viable argument regarding the legibility of the evidence or the
validity of the summaries, he waived the issue by failing to
raise it during the extradition hearings.
See Lo Duca, 93 F.3d
at 1111.
For the above-stated reasons, Chunilall's alleged
recantation does not undermine Magistrate Judge Kuo's probable
cause determination.
16
C. Explanatory Evidence
Related to his arguments concerning recantation,
petitioner contends that the testimony submitted against him was
obtained through coercion.
MJ-597, ECF No. 10 at 4-5.)
{ECF No. 10, Pet. Reply at 4-9; 17Specifically, petitioner argues
that Chunilall was coerced into giving his statement.
1, Pet. ^20.)
(ECF No.
He does not explain his allegation in the
petition, but expands on it in his reply brief, again without
sufficient evidentiary support.
Essentially, petitioner argues
that Chunilall was coerced into giving a statement inculpating
petitioner because he cannot read or write and therefore signed
a document without knowing what it said.
(ECF No. 10, Pet.
Reply at 6-7; see also 17-MJ-597, ECF No. 20, 10/2/17 Tr. at 1922.)
In the extradition proceedings, petitioner raised a
similar issue, alleging that Chunilall's mother instructed him
""to put his fingerprint" on a statement '"written by local law
enforcement," even though he did not know what it said.
597, ECF No. 10 at 4.)
(17-MJ-
Petitioner did not offer any evidence
supporting these assertions to Magistrate Judge Kuo, and he only
provided evidence in the instant petitioner attached to his
reply brief, not the petition.
During the extradition proceedings, petitioner argued
that "other witnesses all testified in court that the original
statements that they gave, that was the basis for the probable
17
cause were all given under police coercion and duress.
Each one
of them explained that they were in police custody for long
periods of time, not being given water, not being given food and
being treated harshly."
19-20.)
{17-MJ-597, ECF No. 20, 10/2/17 Tr. at
Similarly, in his petition for habeas relief,
petitioner asserts that '"the witnesses who pointed a finger
against Mr. Bisram have recanted their testimony and explained
that it was coerced."
{ECF No. 1, Pet. 1 20.)
Petitioner did
not offer evidentiary support for these assertions of coercion
to Magistrate Judge Kuo, nor does he in the instant petition.
Because petitioner has not provided any documentary evidence
corroborating his bare assertions of coercion as to the
witnesses other than Chunilall, the court does not address
whether the assertions bear on Magistrate Judge Kuo's probable
cause determination.
To the extent petitioner raises the issue of coercion
to call into question Chunilall's credibility, the issue is not
properly before the court as it should have been raised before
Magistrate Judge Kuo in the extradition proceeding.
''The
credibility of witnesses and the weight to be accorded their
testimony is solely within the province of the extraditing
magistrate."
Austin, 5 F.3d at 605 (citation and internal
quotation marks omitted).
18
Similarly, to the extent that petitioner offers
evidence of Chunilall's alleged coercion as ''explanatory
evidence," he misses the mark - much in the same way he did with
respect to his recantation argument.
Petitioner has not
provided the court with any cases that address the argument he
proffers - whether an extraditee may put forth potentially
"explanatory evidence" regarding coercion for the first time in
a proceeding reviewing a certificate of extradition.
Instead,
he confuses the standards for admitting such evidence at an
extradition hearing and a district court's standard of review in
a habeas proceeding.
As discussed above, in an extradition
hearing before a magistrate judge, "the extraditee's right to
introduce evidence is [] limited to testimony which explains
rather than contradicts the demanding country's proof . . . ."
Shapiro, 418 F.2d at 905 (citation and internal quotation marks
omitted); see also Kapoor II, 606 F. App'x at 12.
Whether an
extraditee may admit explanatory evidence is within the
discretion of the judge ruling on the issue of extradition.
Matter of Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978).
Such
evidence is intended "to afford an accused person the
opportunity to present reasonably clear-cut proof which would be
of limited scope and have some reasonable chance of negating a
showing of probable cause."
Id.
Because petitioner failed to
introduce any "explanatory evidence" during the extradition
19
hearings, this court cannot evaluate whether Magistrate Judge
Kuo treated such evidence appropriately.
Even if the court were
to consider this evidence, it would not find that the evidence
has ''some reasonable chance of negating a showing of probable
cause.''
Id.
Petitioner's own misplaced reliance on Santos v.
Thomas, 830 F.Sd 987 (9th Cir. 2016), which is not binding on
this court, speaks to petitioner's flawed position.
In Santos,
the extraditee "sought to introduce evidence that incriminating
statements made against him by his co-conspirators were obtained
by torture, and therefore could not support the probable cause
required to extradite."
Id. at 990.
The extradition court,
however, found that the evidence was inadmissible because the
proposed evidence constituted "contradictory evidence," and
because the allegations of torture were contained in statements
that included recantations.
Id.
The district court denied the
extraditee's request for habeas relief, but the Ninth Circuit
reversed, holding that evidence that a witness's confession was
obtained through coercion or torture constitutes "explanatory
evidence" and is, therefore, generally admissible in extradition
proceedings.
Id. at 1007.
Thus, the Ninth Circuit's ruling
addresses the admissibility of explanatory evidence of coercion
at the extradition hearing not on collateral review.
20
For the above stated reasons, the court finds that
petitioner's newly submitted evidence does not impair Magistrate
Judge Kuo's probable cause finding.
For these same reasons,
petitioner's request for an evidentiary hearing is denied.
CONCLUSION
For the foregoing reasons, the petition for a writ of
habeas corpus is denied as is petitioner's motion for an
evidentiary hearing.
The Clerk of Court is respectfully
requested to enter judgment denying and dismissing the petition
and to close the case.
SO ORDERED.
Dated:
October 29, 2018
Brooklyn, New York
/s/
KIYO A. MATSUMOTO
United States District Judge
21
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