Cedarbloom v. United States of America

Filing 13

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is denied. (See 10 page opinion for more information.) Signed on 5/29/18 by Judge Michael W. Mosman. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TIMOTHY SCOTT CEDARBLOOM,
Case No. 3:17-cv-01436-MO
Petitioner,
OPINION AND ORDER

v.
UNITED STATES OF AMERICA,
Respondent.
Ruben L. Iniguez, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Billy J. Williams
United States Attorney
Thomas S. Ratcliffe, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent

1 - OPINION AND ORDER

MOSMAN, District Judge.
Petitioner brings
U.S.C.

§

this

habeas

corpus

case

pursuant to

28

2241 challenging his certification for extradition. For

the reasons that follow,

the Petition for Writ of Habeas Corpus

(#1) is denied.
BACKGROUND

On November

23,

1998,

Petitioner

robbed

a

branch

of

the

Canada Trust Bank in Halifax, Nova Scotia. Three days later,

he

pled guilty to one count of Robbery in violation of Section 344
of the Criminal Code of Canada and received a

42-month prison

sentence.
On

August

28,

2000,

Canadian

authorities

released

Petitioner on day parole, instructing him to proceed directly to
a

community-based

never

showed

up

residential
to

the

facility

residential

in

Halifax.

facility,

Petitioner

prompting

the

revocation of his parole and the issuance of an arrest warrant.
In

2012,

driving

under

Service
detention,

of

American
the
Canada

authorities

influence.
( "CSC")

They

arrested
contacted

notifying

it

Petitioner

for

the

Correctional

of

Petitioner's

but released Petitioner before the CSC finalized its

decision regarding extradition. Misc. Docket (#1-3), p. 5.

1

References to the Miscellaneous Docket are to Petitioner's miscellaneous
extradition case, In Re Extradition of Cedarbloom, Case No. 3:17-mc-00094.

2 - OPINION AND ORDER

In

2014,

the

U.S.

sleeping in a park,

Forest

Service

discovered

Petitioner

confirmed his identity via photographs,

and

notified the CSC of Petitioner's status and whereabouts. The CSC
declined

to

make

an

extradition

request

at

that

time

due

to

Petitioner's transient status. Id.
On

July

2,

2015,

a

Deschutes

County

Deputy

Sheriff

contacted the CSC to report that he had discovered Petitioner at
a property in Bend while investigating a complaint of neglected
llamas.

As a result of this contact,

Government

of

Canada

extradition,

and

twice

2016 and August 26,

formally

supplemented

2016,

on October 26,
requested
that

the

Petitioner's

request

respectively. Misc.

2015,

on

28,

(#1-1),

Docket

June

p.

2.

On

February

28,

2017,

the

U.S.

District

Court

issued a

warrant for Petitioner's arrest based upon Canada's extradition
request.

Two days later,

authorities arrested Petitioner at the

Bend residence where he had been discovered on July 2,
March 6,

2017,

2015. On

the Honorable Paul Papak released Petitioner on

conditions. Misc. Docket (#5).
On

July

hearing,
later.

12,

2017,

Judge

Papak

and followed up with a

On August

7,

2017,

Judge

conducted

supplemental

extradition

hearing

six days

Papak certified Petitioner as

extraditable to Canada. Misc. Docket (#27).
3 - OPINION AND ORDER

an

Petitioner filed this 28 U.S.C.
challenging

Judge

Papak' s

§

2241 habeas corpus case

extra di ti on certification on

several

bases:
1.
The Canadian Parliament never ratified
the Extradition Treaty,
thus it has no
effect;
2.
The "dual criminality" requirement has
not been met in this case because the
robbery of a bank insured by the Federal
Deposit Insurance Corporation
("FDIC")
is
not punishable by both countries;
There was no probable cause to certify
3.
extradition in Petitioner's case;
4.
Canada's 15-year delay in requesting
extradition
violates
Petitioner's
Fifth
Amendment right to due process under the
U.S. Constitution as well as Article 8 of
the Extradition Treaty;
5.
Canada's
belated
request
for
extradition amounts to cruel and unusual
punishment and therefore violates the Eighth
Amendment of the U.S. Constitution as well
as Article 8 of the Extradition Treaty; and
6.
Judge Papak's decision violates Article
4
of
the
Extradition
Treaty
because
Petitioner's punishment in the United States
barred his extradition to Canada to serve a
separate punishment for the same offense.
Respondent
because:
considered

(1)
and

asks
with

the Court to deny relief
the

properly

exception
rejected

(2) Petitioner's claims lack merit.

4 - OPINION AND ORDER

of

Ground

Petitioner's

on the
5,

Petition

Judge

arguments;

Papak
and

DISCUSSION

Judicial
appealable.

certifications

Instead,

of

extradition

(9th Cir.

not

directly

habeas corpus is the only vehicle by which

to challenge an extradition order.
1240

are

Vo

v.

Benovr

447

F.3d 1235,

2006). The Court's inquiry is limited to whether:

( 1) the magistrate had jurisdiction over the petitioner;
treaty was in full force and effect;

( 3)

the

there

terms

of

the

treaty;

and

(4)

( 2) the

the crime fell within
was

any

competent

evidence supporting the magistrate's finding of extraditability.

Id.
I.

Ratification of Extradition Treaty

Petitioner first asserts that Judge Papak erred because the
Extradition

is

Treaty

not

in

full

force

and

effect.

Specifically, he claims that no governmental body in Canada ever
endorsed the Treaty,

leaving it unenforceable where the United

States is its only signatory.
Judge
Canada

Papak

properly

determined
ratified

the

that

whether

Treaty

is

the

Government

non-justiciable

as

of
a

political question to be addressed by the U.S. Executive Branch.
Even to the extent this could be seen as a justiciable question,
the

intentions

countries

are

of

the

central

executive
to

the

branches

analysis,

of

and

the
both

respective
the

United

States and the Canadian Governments agree that the Extradition
5 - OPINION AND ORDER

Treaty has been ratified and has been in full
for decades.
92

F.3d

851,

intentions
in

the

1997)

II.

Misc.
854

(9th Cir.

of the

p.

See also Then v. Melendez,

4;

1996)

(courts

executive branches

Saroop v.

treaty);

Garcia,

should

of the

109

defer

to

countries

F.3d 165,

170

the

involved
(3rd Cir.

(same). Consequently, this claim lacks merit.

Dual Criminality
Article

of

2

applicability to
by

Docket 1-1,

force and effect

detention

Judge

Papak

requirement
U.S.C.

Extradition

conduct which

for

more

erred
had

the

than

when

been

he

Treaty

its

is punishable in both countries

one

year.

Petitioner

found

that

because

met

limits

bank

the

dual

robbery

argues

that

criminality

under

the

18

2113 requires that the victim bank be an FDIC-insured

§

institution,

and there

is no

dispute

that

Canada Trust

is

not

insured by the FDIC.
"The primary focus

of dual criminality has

always been on

the conduct charged; the elements of the analogous offenses need
not be identical." Clarey v.
1998.

The

robbery

FDIC

law

counterpart
especially

requirement

does

not

that

dual

true

render

the

138 F. 3d 7 64,

associated
it

so

criminality

because

jurisdictional one,

Gregg,

FDIC

with

the

dissimilar
is

not

to

7 65

American
its

satisfied.

insurance

(9th Cir.
bank

Canadian
This

requirement

is

is
a

and jurisdictional elements are not relevant

6 - OPINION AND ORDER

to the dual criminality analysis.
F.3d 1107, 1109 (9th Cir. 1997)
Emami

v.

U.S.

Dist.

1450 (9th Cir. 1987)
the

Court

for

United

States

v.

Harris,

108

(FDIC element is jurisdictional);
N.D.

of

Calif.,

834

F.2d 1444,

(disregarding jurisdictional differences and

focusing

on

functional

conduct).

For these reasons,

equivalent

of

the

substantive

I find Petitioner's conviction for

bank robbery in Canada to be sufficiently similar to 18 U.S.C.
2113(a)

to

satisfy

the

dual

criminality

requirement

of

the

Treaty.
III. Finding of Probable Cause

Petitioner next claims that Judge Papak erred when he found
that

probable

cause

existed

to

certify

the

extradition.

He

states that probable cause is satisfied by a foreign conviction
only so long as it is obtained following a trial at which the
accused was present and represented by counsel.
he had no trial,

and only entered a guilty plea very early in

the proceedings upon the advice of counsel,
cannot

support

He reasons that

a

finding

of

probable

thus his conviction

cause.

Not

only

does

Petitioner fail to provide the Court with any authority for the
proposition that a guilty plea cannot support the probable cause
necessary

for

certification

of

extradition,

but

where

he

admitted on the record in open court to robbing a Canadian bank,

7 - OPINION AND ORDER

probable

cause

existed

that

he

committed bank

robbery.

Judge

Papak therefore did not err in making such a finding.
IV. 15-Year Delay
Article

of

8

the

Extradition

provides

Treaty

that

extradition determinations must be made in accordance with the
law

of

the

requested

state.

According

to

Petitioner,

his

certification for extradition violates his Fifth Amendment right
to due process of law and, thus, Article 8 of the Treaty due to
the

Canadian

Government's

15-year

delay

in

requesting

his

extradition.

He points out that Canada had ample notice of his

presence

the

request

in

United

extradition.

He

States
argues

and
that

several
where

diligently with its extra di ti on request,

opportunities

Canada

did not

to
act

he suff erect prejudice

as a result of that delay such that his extradition at this late
date is unlawful.
The Ninth Circuit has held that "'the
does

not

of

its

own

force

impose

on

[U.S.]

foreign

Cons ti tut ion

governments

the

obligation to act speedily in seeking extradition of a fugitive
from

the

United

1045-46
Kraiselburd,

States[.]'"

Cir.

2016)

7 8 6 F. 2d 13 95,

Santos
(quoting
13 98

v.

Thomas,
In

(9th Cir.

Petitioner's due process claim lacks merit.

8 - OPINION AND ORDER

re

830

F.3d

Extradition

987,
of

198 6) ) . Accordingly,

Petitioner

also

casts

delayed

the

extradition

violation of the Eighth Amendment because it amounts

as

a

to cruel

and unusual punishment, and is thus prohibited both by the U.S.
Constitution as well as Article 8 of the Extradition Treaty. The
extradition is not punishment by the

United States.

Where the

delay of which Petitioner complains does not pertain to a U.S.
criminal proceeding but,

instead,

context

conviction,

of

a

inapplicable.

Canadian

See

(Eighth

Amendment

crimes);

Demery v.

V.

Bell

v.

Wolfish,

protects
Arpaio,

relates to extradition in the

only

the
441

Eighth
U.S.

Amendment

520,

individuals

378 F. 3d 1020,

1029

579

(1979)

convicted
(9th Cir.

is

of

2004).

Punishment by the United States

Finally,

Petitioner

alleges

that

Judge

Papak

violated

Article 4 of the Extradition Treaty which proscribes extradition
if the person sought has already been punished in the territory
from which extradition is requested.

Petitioner believes that he

was "punished" in the United States insofar as he was arrested
at his home in Bend on March 2,
five

days prior to his

any amount of time
punishment

such

release on conditions.

spent

that,

2017 and held in custody for
He reasons that

in custody unquestionably amounts

where

the

Treaty

does

not

to

require

any

particular severity of punishment to preclude extradition,

the

United States punished him for his Canadian bank robbery.
9 - OPINION AND ORDER

As stated above, the extradition process does not amount to
punishment by the United States. Although the United States held
Pe ti ti oner in custody for
applicable

extradition

consequence

of

any

five days,

statute,

18

criminal

U.S.

it did so based upon the
U.S.C.

§

3184,

proceeding.

not

as

a

Accordingly,

Petitioner's extradition to Canada does not violate Article 4 of
the Treaty.
CONCLUSION

For the reasons identified above,
Habeas Corpus (#1) is denied.
IT IS SO
DATED this

10 - OPINION AND ORDER

the Petition for Writ of