Benitez v. Garcia ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL RODRIGUEZ BENITEZ,  No. 04-56231
Petitioner-Appellant,
v.  D.C. No.
CV-02-00489-DMS
SYLVIA GARCIA, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
July 13, 2005—Pasadena, California
Filed May 23, 2006
Before: Jerome Farris, Dorothy W. Nelson, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge D.W. Nelson
5663
BENITEZ v. GARCIA 5665
COUNSEL
Barbara Strickland, San Diego, California, for the appellant.
Matthew Mulford, Deputy Attorney General, San Diego, Cali-
fornia, for the appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Cristobal Rodriguez Benitez was arrested in Venezuela and
extradited to the United States. Benitez was tried and con-
victed of murder, and sentenced to an indeterminate sentence
of fifteen years to life (in addition to four years for the use of
a firearm).1 Benitez petitioned for a writ of habeas corpus,
1
The sentencing hearing transcript and the abstract of judgment indicate
that Benitez received a five-year additional enhancement for using a gun.
5666 BENITEZ v. GARCIA
arguing that his sentence could not exceed thirty years
because of an extradition decree from the Supreme Court of
Venezuela and the Venezuelan Ministry of Foreign Affairs
pursuant to the extradition treaty between the United States
and Venezuela. The district court denied his petition, and
Benitez appealed.
The rights claimed by Benitez pursuant to the extradition
treaty are clearly established federal law pursuant to treaty
law, and the sentence issued by the California Superior Court
contravenes these rights, providing a basis for reversal. Where
the provisions of the extradition treaty so provide, the surren-
dering country may expressly condition extradition of the
fugitive. Federal habeas courts may enforce limitations on
punishment if a potential punishment exceeds the conditional
punishment imposed by the country agreeing to extradite the
defendant in a particular case.
Applying that condition to this case, we decide that Benitez
may not be sentenced to more than thirty years in prison. We
therefore reverse the decision of the district court and grant
the requested petition for a writ of habeas corpus.
I
Benitez, a Mexican citizen, was convicted of murdering a
man involved in an altercation with Benitez’s brother in San
Diego, California. Right after the shooting, Benitez returned
to his apartment, scrambled together a few items, and fled the
country, eventually arriving in Caracas, Venezuela. On June
25, 1997, the United States requested that Venezuela extradite
Benitez to face California charges pursuant to the extradition
Both parties agreed that the court actually imposed an enhancement of
four years, and therefore the state appellate court decided that it would be
correct to change Benitez’s sentence to reflect the correct four-year (rather
than five-year) enhancement.
BENITEZ v. GARCIA 5667
treaty entered into between the United States and Venezuela
in 1922. That extradition treaty provides that:
[T]he Contracting Parties reserve the right to decline
to grant extradition for crimes punishable by death
and life imprisonment. Nevertheless, the Executive
Authority of each of the Contracting Parties shall
have the power to grant extradition for such crimes
upon the receipt of satisfactory assurances that in
case of conviction the death penalty or imprisonment
for life will not be inflicted.
Treaty of Extradition, Jan. 19-21, 1922, U.S.-Venez., Art. IV,
43 Stat. 1698, T.S. No. 675.
On June 25, 1997, the Venezuelan Ministry of Foreign
Affairs—upon receiving the request to extradite Benitez from
the United States—contacted the United States Embassy and
asked for information related to the sentence Benitez might
face if he were eventually convicted in an American court.
The United States Embassy responded on November 6, 1997,
and indicated that under California law “if convicted of mur-
der, and if murder in the first degree is found, Cristobal
Rodriguez Benitez would receive a sentence of incarceration
of 25 years to life.” The Ministry of Foreign Affairs in Vene-
zuela received this correspondence from the United States,
and indicated that it understood the response to mean that “in
principle” Benitez would not be subject to a sentence of
greater than thirty years.
On August 17, 1998, the Supreme Court of Venezuela
approved the extradition of Benitez, but stated that if an
American court convicts Benitez it “shall not . . . impose[ ] a
penalty involving [the] death penalty or life imprisonment or
punishment depriving his freedom for more than thirty years.”
The Ministry of Foreign Affairs in Venezuela received this
decision, and communicated to the United States that the
extradition of Benitez was “conditioned to the understanding
5668 BENITEZ v. GARCIA
that [Benitez] will not be sentenced to . . . life in prison or
incarceration for more than thirty (30) years.” (emphasis
added). Benitez was extradited from Venezuela to the United
States on August 28, 1998.
On November 5, 1998, the San Diego County District
Attorney filed an information alleging that Benitez committed
murder and personally used a firearm, in violation of Califor-
nia Penal Code § 12022.5(a). On July 16, 1999, about the
time that Benitez’s trial was to commence, the Venezuelan
Embassy wrote to the United States Department of Justice
stating its concern that the sentence Benitez faced “may vio-
late the provisions of the Extradition Treaty” between the
United States and Venezuela, and also might violate “the con-
ditions established in the sentence of the Supreme Court of
Venezuela which approved the extradition request presented
by the Government of the United States.”
Benitez raised this issue at trial in California state court, but
without success. Benitez was eventually convicted of murder
by the California court. The day before he was to be sen-
tenced (on August 30, 1999) the United States Department of
State faxed a letter to the District Attorney of San Diego
County, indicating that even though the State Department did
“not believe the Office of the District Attorney is required to
make such a recommendation,” the Department of State still
believed it would be wise if Benitez were not issued a life
sentence. Benitez was given an indeterminate sentence of 15
years to life, with an enhancement for the personal use of a
firearm. At the sentencing hearing, the state trial court
decided that the sentence was appropriate, and indicated that
Benitez’s argument that the sentence violated the terms of his
extradition was not “ripe for . . . review.”
Benitez’s state habeas petitions were denied by the state
courts. The federal magistrate judge determined that Benitez’s
petition challenging his sentence had merit, but was not ripe
because Benitez might not actually be forced to serve jail time
BENITEZ v. GARCIA 5669
exceeding thirty years. The district court found that the dis-
pute over the sentence was ripe, but decided that Benitez had
failed to demonstrate that his sentence violated clearly estab-
lished federal law.
II
We have jurisdiction over this case pursuant to 28 U.S.C.
§§ 1291 and 2253(c). This court reviews the district court
denial of a writ of habeas corpus de novo. Leavitt v. Arave,
371 F.3d 663, 668 (9th Cir. 2004). Because Benitez filed his
petition after the effective date of the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”), AEDPA pro-
vides the governing standard of review in this case. See
Woodford v. Garceau, 538 U.S. 202, 207 (2003). Therefore,
applying AEDPA, we may only grant the petition for habeas
corpus if the state court decision was “(1) contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
III
[1] Before we turn to the merits, we must first address the
claim that Benitez’s petition faces ripeness problems,
because, as the magistrate judge argued, “his right to seek fed-
eral habeas relief will accrue, if at all, when he has served a
full 30 year prison term and is not immediately released.” The
ripeness issue is easily resolved because the extradition of
Benitez was conditioned upon a limitation on what sentence
could be entered against Benitez, as well as what sentence he
could actually serve. The extradition decree entered by the
Venezuelan Supreme Court stated that “no sanction shall be
imposed.” (emphasis added). Likewise, when the Venezuelan
Ministry of Foreign Affairs informed the Embassy of the
5670 BENITEZ v. GARCIA
United States of the actions of the Venezuelan Supreme
Court, it indicated that Benitez’s extradition was “conditioned
to the understanding that the aforementioned citizen will not
be sentenced to death or life in prison or incarceration for
more than thirty (30) years.” (emphasis added).
[2] Benitez was actually sentenced by the California Supe-
rior Court to a sentence of fifteen years to life. Without regard
to whether Benitez might be paroled before he serves thirty
years of his sentence and what his actual sentence or time
incarcerated could be, this dispute became ripe as soon as the
California state court entered its sentence, because the condi-
tions of Benitez’s extradition limited what sentence could be
issued as well as what sentence could be served. Cf. United
States v. Campbell, 300 F.3d 202, 211 (2d Cir. 2002) (recog-
nizing a difference between extradition terms limiting what
sentence could be entered by the receiving state’s courts and
what sentence the receiving state could force the prisoner
actually to service). We therefore need not decide whether,
absent this limitation regarding what sentence could be
entered, a limitation regarding what sentence could be served
would be immediately ripe.
IV
A
We next turn to the merits of Benitez’s challenge to his
sentence. Since this case is governed by AEDPA, we must
first look for the “clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d). In this case, the source of clearly established fed-
eral law we rely upon is the extradition treaty between the
United States and Venezuela, and we decide that the state
court’s application of the extradition treaty was an “unreason-
able application of[ ] clearly established federal law.” Wil-
liams v. Taylor, 529 U.S. 362, 411 (2000).
BENITEZ v. GARCIA 5671
[3] The extradition treaty, as a duly ratified treaty entered
into by the United States, is federal law pursuant to the
Supremacy Clause. See U.S. CONST., Art. VI.2 Whether this
treaty is clearly established federal law, though, presents an
issue this court has not addressed since the enactment of
AEDPA. Two Supreme Court cases discussing extradition
treaties from long ago, United States v. Rauscher, 119 U.S.
407 (1886), and Johnson v. Browne, 205 U.S. 309 (1907),
instruct us to apply the treaty and treaty-based actions, but
they do not tell us what constitutes “clearly established” fed-
eral treaty law.
Courts may well be required to examine the language of the
treaty itself in order to determine whether the law it states is
clearly established. AEDPA also instructs us to apply “clearly
established federal law . . . as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d) (emphasis
added), but does not tell us what clearly established federal
2
Because the limitations on punishment in this case derive from a treaty
and therefore from federal law as defined by the Supremacy Clause of the
Constitution, we find no merit in the concern articulated by the state trial
court and the state appellate court that, as the state appellate court indi-
cated, “the court has [no] power to fashion an alternative remedy, other
than the sentence that is mandated by California law.” The treaty is federal
law, and therefore California sentencing regimes must yield to the extent
there are any inconsistencies with the California sentencing rules. See U.S.
CONST., Art. VI (“[A]ll Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Consti-
tution or Laws of any state to the Contrary notwithstanding.”) (emphasis
added); Howlett v. Rowe, 496 U.S. 356, 369-70 (1990) (“[S]tate courts
have the coordinate authority and consequent responsibility to enforce the
supreme law of the land.”); Hauenstein v. Lynham, 100 U.S. 483, 490
(1879) (“[T]he Constitution, laws, and treaties of the United States are as
much a part of the law of every State as its own local laws and Constitu-
tion.”). Cf. Alden v. Maine, 527 U.S. 706, 753 (1999) (“The Supremacy
Clause does impose specific obligations on state judges.”); Printz v.
United States, 521 U.S. 898, 907 (1997) (stating that the Constitution
“permit[s] imposition of an obligation on state judges to enforce federal
prescriptions”).
5672 BENITEZ v. GARCIA
treaty law might be when the Supreme Court has not substan-
tially addressed a particular treaty, as is the case here. In other
words, the interaction between treaty rights and AEDPA
habeas law presents a difficult and heretofore unexamined
issue.
[4] In this case, though, that specific issue need not concern
us. The unambiguous language of the treaty itself is indisputa-
bly clearly established federal law. A further examination of
the facts in this case, as we discuss in Part IV, demonstrates
that the interactions between the United States and Venezuela
pursuant to the treaty indicate that the treaty right Benitez
claims is also clearly established federal law pursuant to the
treaty. In other words, no matter what clearly established fed-
eral law might be in the context of treaties, Benitez has
proven that there is such clearly established federal law as the
treaty applies to him in this case.
In this case, in addition to the Treaty itself, we agree with
the state court that the only other sources of clearly estab-
lished federal law we can locate are Rauscher and Browne.
Rauscher and Browne both stand for the same principle: An
extradited defendant can “only be tried for one of the offenses
described in that [extradition] treaty.” Rauscher, 119 U.S. at
430. See also Browne, 205 U.S. at 316 (stating that it is
impermissible to try a defendant other than “for the crime for
which he has been extradited”). Over time, this rule from
Rauscher and Browne has come to be known as the doctrine
of specialty. See, e.g., Quinn v. Robinson, 783 F.2d 776, 783
(9th Cir. 1986) (“The doctrine of ‘specialty’ prohibits the
requesting nation from prosecuting the extradited individual
for any offense other than that for which the surrendering
state agreed to extradite.”).
The doctrine of specialty on its own terms, however, offers
Benitez no relief, because it merely limits the crimes with
which Benitez can be charged, not the punishments the state
can impose. Because the Venezuelan treaty is sufficient to
BENITEZ v. GARCIA 5673
afford Benitez relief, we need not reach whether extending the
doctrine of specialty is required here.
[5] We hold that we can enforce limitations on punishments
following the extradition of a defendant, but we may do so
only if the contracting treaty nations agreed to such a limita-
tion in the particular case. See Rauscher, 119 U.S. at 422
(“This proposition of the absence of express restriction in the
treaty of the right to try him for other offenses than that for
which he was extradited, is met by the manifest scope and
object of the treaty itself”) (emphasis added); Browne, 205
U.S. at 318 (“The manifest scope and object of the treaty itself
. . . limit[s] the . . . crime for which extradition had been
demanded and granted.”) (emphasis added). We must there-
fore examine the extradition agreement in this case, and ask
the question: Did the treaty and extradition activities of the
parties in this case provide for a clear limitation on the pun-
ishment Benitez could face? If the answer is yes, we must
enforce whatever punishment limitation we find.
B
The State of California argues that the state superior court
made a finding of fact that there was no agreement to limit the
punishment Benitez could receive if convicted in the United
States. We agree that the state court did make this finding of
fact, but we are permitted to disregard these findings of fact
if we determine that the presumption of correctness in their
favor is “rebutt[ed] . . . by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Davis v. Woodford, 333 F.3d 982, 991
(9th Cir. 2003). In this case, we find there exists sufficient
rebuttal evidence to overturn the factual finding by the state
court, and we therefore hold that Venezuela had conditioned
the extradition by limiting the punishment Benitez could
receive because it is what “the surrendering country
wishe[d].” United States v. Najohn, 785 F.2d 1420, 1422 (9th
Cir. 1986) (citation omitted).
5674 BENITEZ v. GARCIA
We must look, first and foremost, to what the surrendering
state expected and believed the extradited defendant would
face. In Browne, the Supreme Court decided that “[w]hether
the crime came within the provision of the treaty was a matter
for the decision of the [surrendering] authorities.” Browne,
205 U.S. at 316. Our foremost concern is to “ensur[e] that the
obligations of the requested nation are satisfied.” United
States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994). See,
e.g., United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir.
1988) (stating that “the appropriate test is whether the extra-
diting country” would object); Restatement (Third) of the For-
eign Relations Law § 477 Comment b (“The standard for
adjudicati[on] . . . in the United States is whether the
requested state has objected or would object to prosecution.”).
[6] As part of this assessment of “what the surrendering
country wishes,” Najohn, 785 F.2d at 1422, courts look to the
extradition decree issued by the surrendering country, as well
as documents related to that decree. In Rauscher, the Supreme
Court explicitly looked at the “processes by which [extradi-
tion] is to be carried into effect.” Rauscher, 119 U.S. at 420.
Id. at 421 (ensuring that the “proceedings under which the
party is arrested in a country” are given due respect). See, e.g.,
Andonian, 29 F.3d at 1436 (looking to the surrendering coun-
try’s “extradition order”); United States v. Cuevas, 847 F.2d
1417, 1425 (9th Cir. 1988) (same); United States v. Najohn,
785 F.2d 1420, 1422 (9th Cir. 1986) (same). Indeed, we have
decided that implementing the Supreme Court’s decision in
Johnson requires that “deference [is] to be accorded a surren-
dering country’s decision on extraditability.” United States v.
Van Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987). See
also United States v. Campbell, 300 F.3d 202, 209 (2d Cir.
2002) (“Whether or not express terms in a treaty make the
extraditing country’s decision final as to whether an offense
is extraditable, deference to that country’s decision seems
essential to the maintenance of cordial international rela-
tions.”); Casey v. Dep’t of State, 980 F.2d 1472, 1477 (D.C.
Cir. 1992) (“[A]t a minimum, Johnson means that an Ameri-
BENITEZ v. GARCIA 5675
can court must give great deference to the determination of
the foreign court in an extradition proceeding.”); United
States v. Jurado-Rodriguez, 907 F. Supp. 568, 574 (E.D.N.Y.
1995) (deciding that the United States must “must abide by
the terms and limitations [the surrendering country] has
explicitly included in its extradition decree”).
[7] In this case, although the initial correspondence from
the United States indicated that Benitez could face life impris-
onment, Venezuelan wishes were always clearly articulated.
The Venezuelan Ministry of Justice acknowledged the receipt
of the correspondence from the United States by stating its
understanding that “in principle” Benitez would not face “life
incarceration.” The extradition decree issued by the Venezue-
lan Supreme Court repeated this very same understanding, but
using even more explicit language: Benitez was not to receive
“punishment depriving his freedom for more than thirty
years.” The extradition decree indicated not only that this was
Venezuela’s understanding of what punishment Benitez
would face, but that his extradition was “subject to the fact
that the referred citizen shall not be imposed a penalty involv-
ing [the] death penalty or life imprisonment or punishment
depriving his freedom for more than thirty years.” (emphasis
added).
The Venezuelan Ministry of Foreign Affairs wrote to the
Embassy of the United States to explain the extradition
decree, stating that “[s]aid extradition is conditioned to the
understanding that the aforementioned citizen will not be sen-
tenced to death or life in prison or incarceration for more than
thirty (30) years.” (emphasis added). Because we must exam-
ine and defer to the surrendering country’s wishes, particu-
larly as they are expressed in its extradition decree, these
statements are telling.
If this particularly probative evidence of Venezuela’s pre-
extradition behavior were not sufficient to prove that Venezu-
ela understood this extradition to encompass a limitation on
5676 BENITEZ v. GARCIA
the punishment Benitez could face, the sequence of events
following Benitez’s extradition confirm Venezuela’s under-
standing of the punishments Benitez would not face. See
Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)
(“[Courts] traditionally consider[ ] as aids to . . . interpretation
. . . the postratification understanding of the contracting par-
ties.”). After Benitez was extradited but before his trial, the
Venezuelan Embassy sent the Department of State a diplo-
matic note indicating that it was “concerned that [life impris-
onment] may violate the provisions of the Extradition Treaty
. . . as well as the conditions established in the sentence of the
Supreme Court of Venezuela which approved the extradition
request.”
[8] It is also settled that “[r]espect is ordinarily due the rea-
sonable views of the Executive Branch concerning the mean-
ing of an international treaty.” El Al Israel Airlines, Ltd. v.
Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (citing Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85
(1982)). Rather than disagreeing with Venezuela, the United
States Department of State faxed a letter to the District Attor-
ney that “it would be in the best interests of our extradition
relationship for Mr. Rodriguez Benitez not to serve a life sen-
tence.” While this letter also indicated the request was not
legally binding, it does cast doubt on the notion that there is
a clear executive position in favor of permitting life imprison-
ment to which we must defer in deciding this case.
V
[9] Because we find that clearly established federal law
applies to limit the punishments extradited defendants can
receive when conditionally extradited under a Treaty, and the
facts of this case indicate that such limitations were intended
here, we reverse the decision of the district court. Since the
Venezuelan extradition decree and the subsequent official
notification of Venezuela’s understanding of the extradition
terms indicated that Benitez was not to be sentenced to more
BENITEZ v. GARCIA 5677
than thirty years, we conclude that California may not sen-
tence Benitez to more than thirty years of imprisonment. We
therefore remand to the district court to enter habeas relief
consistent with this decision.
PETITION GRANTED AND REMANDED TO
DISTRICT COURT.