Benitez v. Garcia ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL RODRIGUEZ BENITEZ,  No. 04-56231
Petitioner-Appellant, D.C. No.
v.  CV-02-00489-DMS
SYLVIA GARCIA, Warden, ORDER AND
Respondent-Appellee.
 OPINION
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 January 22, 2007
Before: Jerome Farris, Dorothy W. Nelson, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
877
BENITEZ v. GARCIA 879
COUNSEL
Barbara Strickland, San Diego, California, for the appellant.
Matthew Mulford, Deputy Attorney General, San Diego, Cali-
fornia, for the appellee.
ORDER
The panel opinion filed on May 23, 2006, 449 F.3d 971, is
withdrawn and a substitute opinion is filed simultaneously
880 BENITEZ v. GARCIA
with this order. The petition for rehearing and for rehearing
en banc is denied as moot without prejudice to renewal by
either party following filing of the new opinion.
OPINION
PER CURIAM:
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). Benitez petitioned for a writ of habeas corpus,
arguing that his sentence could not exceed thirty years
because of a sentence limitation contained in the extradition
decree from the Supreme Court of Venezuela and the Venezu-
elan Ministry of Foreign Affairs. The district court denied his
petition; Benitez appealed. We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253(c).
Where the provisions of the extradition treaty so provide,
the surrendering country may condition extradition of the
fugitive on punishment limitations. The Supreme Court has
clearly established that the extraditing country’s expectations
must be respected if they are within that country’s rights
under the extradition treaty. As was its right under the U.S.-
Venezuela extradition treaty, Venezuela made clear its expec-
tation that upon extradition Benitez would not be sentenced to
a potential life sentence. The state court’s decision not to
enforce Venezuela’s expectation was objectively unreason-
able. We therefore reverse the decision of the district court
and grant the petition.
I
Benitez, a Mexican citizen, was convicted of murdering a
man involved in an altercation with Benitez’s brother in San
BENITEZ v. GARCIA 881
Diego, California. After the shooting, Benitez fled to Venezu-
ela. On June 25, 1997, the United States requested that pursu-
ant to the U.S.-Venezuela extradition treaty Venezuela
extradite Benitez to face charges in California. The extradi-
tion 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 from the United States
to extradite Benitez — contacted the U.S. Embassy and asked
for information related to the sentence Benitez might face if
convicted in an American court. On November 6, 1997, the
U.S. Embassy responded that under California law “if con-
victed of murder, 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 indicated to
the Venezuelan Supreme Court that the response meant 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
882 BENITEZ v. GARCIA
Benitez’s extradition was “conditioned to the understanding
that [Benitez] will not be sentenced to . . . life in prison or
incarceration for more than thirty (30) years.” 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 might also 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
without success. The day before he was to be sentenced, 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 indeter-
minate sentence of fifteen years to life with an enhancement
for the personal use of a firearm. At the sentencing hearing,
the state trial court 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. The federal
magistrate judge determined that Benitez’s petition challeng-
ing his sentence had merit, but was not ripe because Benitez
might not be forced to serve jail time exceeding thirty years.
The district court decided that the dispute was ripe but that
BENITEZ v. GARCIA 883
Benitez failed to demonstrate that his sentence violated
clearly established federal law.
II
[1] We must first decide whether Benitez’s petition is ripe
for review or instead will only be ripe if he is not released
after thirty years. Benitez’s extradition was conditioned upon
a limitation on what sentence could be entered against him as
well as what sentence he could serve. When the Venezuelan
Ministry of Foreign Affairs informed the U.S. Embassy of the
Venezuelan Supreme Court’s decision to extradite Benitez,
the Ministry indicated that the 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). Additionally,
Benitez’s extradition decree limited what sentence could be
issued as well as what sentence could be served.
[2] This dispute therefore turns on the term sentenced, not
the term served. It became ripe as soon as the state court
entered a sentence of fifteen years to life. Cf. United States v.
Campbell, 300 F.3d 202, 211 (2d Cir. 2002) (recognizing a
difference between extradition terms limiting what sentence
could be entered by the receiving state’s courts and what sen-
tence the receiving state could force the prisoner to serve).
[3] The disparity between the extradition decree’s limita-
tion and the sentence imposed caused Benitez an “injury in
fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Although courts are reluctant to find standing when an
injury will result only if a future event transpires, see City of
L.A. v. Lyons, 461 U.S. 95, 102 (1983), here standing is not
premised on the intervention of a future event. Instead, unless
some future event intervenes (which we have no reason to
believe is probable or even likely), Benitez will be imprisoned
for life. He has therefore proven a sufficient possibility of “fu-
884 BENITEZ v. GARCIA
ture injury.” Central Delta Water Agency v. United States,
306 F.3d 938, 947 (9th Cir. 2002).1
III
A
[4] We review the district court’s denial of a writ of habeas
corpus de novo. Martinez-Villareal v. Lewis, 80 F.3d 1301,
1305 (9th Cir. 1996). Because Benitez filed his petition after
the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, AEDPA provides the governing standard
of review. See Woodford v. Garceau, 538 U.S. 202, 207
(2003). For a writ to issue we must find that the state court’s
decision was either contrary to or an objectively unreasonable
application of “clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 404-
05, 410 (2000).
Benitez concentrates on demonstrating that his sentence
resulted from the state court’s objectively unreasonable appli-
cation of clearly established federal law as determined by the
Supreme Court. Under AEDPA that can occur where the state
court unreasonably applies the correct legal standard to the
facts of the defendant’s case or where the state court either
unreasonably extends or unreasonably fails to extend an exist-
ing legal principle into a new context. See id. at 407. We too
focus on that portion of the habeas standard.
[5] The clearly established federal law controlling this case
comes from United States v. Rauscher, 119 U.S. 407 (1886),
and Johnson v. Browne, 205 U.S. 309 (1907), which set forth
1
Finding that a petitioner like Benitez could not challenge the latter por-
tions of his sentence also would be highly problematic from a pragmatic
perspective. It would require courts to address each portion of a sentence
only once it is absolutely clear that a prisoner would serve that portion.
BENITEZ v. GARCIA 885
the principles of interpretation and international comity rele-
vant to enforcing extradition treaties and the terms of specific
extraditions. Rauscher and Browne established that the extra-
diting country’s expectations regarding punishment limita-
tions must be respected if they are within that country’s rights
under the extradition treaty.2 Rauscher and Browne are also
clear that these expectations and rights are interpreted expan-
sively in the unique context of foreign extradition relation-
ships, which depend upon trust and mutual respect.
In Rauscher, the Supreme Court implied into the United
States-Great Britain extradition treaty a term restricting prose-
cution of extradited defendants to those charges for which
extradition was secured. The Court found that by enumerating
only certain crimes as extraditable, the treaty implicitly incor-
porated the “public law” principle that an extraditing country
has the right to decide the grounds of extradition, which bind
the receiving country. See Rauscher, 119 U.S. at 419-20.
Although no express treaty language limited the receiving
country’s jurisdiction to prosecute extradited defendants, that
absence was “met by the manifest scope and object of the
treaty itself” — no other interpretation of “solemn public trea-
ties between the great nations of the earth can be sustained by
a tribunal called upon to give judicial construction to them.”
Id. at 422; see also Browne, 205 U.S. at 317. This interpretive
2
These decisions are the American judicial basis for a principle known
as the doctrine of specialty, which is now incorporated into the express
language of most extradition treaties. It provides that an extradited defen-
dant may not be prosecuted “for any offense other than that for which the
surrendering country agreed to extradite.” United States v. Andonian, 29
F.3d 1432, 1434-35 (9th Cir. 1994) (citations and quotations omitted).
“The doctrine is based on principles of international comity: to protect its
own citizens in prosecutions abroad, the United States guarantees that it
will honor limitations placed on prosecutions in the United States. Our
concern is with ensuring that the obligations of the requesting nation are
satisfied.” Id. at 1435 (citations omitted). This well-settled doctrine is not
at issue here. Benitez was charged with the crime for which Venezuela
agreed to extradite him.
886 BENITEZ v. GARCIA
framework was subsequently upheld and applied in Browne,
which reaffirmed that “it is still most important that a treaty
of this nature between sovereignties should be construed in
accordance with the highest good faith.” Browne, 205 U.S. at
321.
[6] Additionally, Rauscher and Browne demonstrate that
enforcement of an extradition treaty also entails giving effect
to “the processes by which it is to be carried into effect.”
Rauscher, 119 U.S. at 420-21. Most importantly, this means
that language in a foreign nation’s extradition order invoking
provisions of an extradition treaty must be enforced by federal
courts. See Browne, 205 U.S. at 311-12 (specifically consider-
ing the extradition orders of the court of King’s Bench in
deciding that the defendant had not been extradited on the
charge for which he was then imprisoned); cf. Andonian, 29
F.3d at 1437 (finding that prosecution for additional counts of
money laundering was not outside the scope of a Uruguayan
court’s extradition order).
[7] Thus, the Supreme Court has clearly established that the
expectations of the extraditing country — at least those within
its rights, expansively interpreted, under the extradition treaty
and expressed in its official extradition order — limit a state’s
ability to prosecute and sentence the extradited defendant. We
must assess whether the state court heeded this in sentencing
Benitez.
B
[8] The state court’s failure to give effect to the Venezuelan
extradition order was an objectively unreasonable application
of Rauscher and Browne, the clearly established Supreme
Court precedent. Venezuela had the right to refuse extradition
to the United States unless it received assurances that neither
a death sentence nor life in prison would be imposed. The
thirty-year limitation that Venezuela sought to impose might
be enforceable if that condition were agreed to by both coun-
BENITEZ v. GARCIA 887
tries. We are wary, however, of enforcing extradition condi-
tions that are neither expressly agreed to by both countries nor
contemplated by the relevant extradition treaty. A thirty-year
limitation is therefore not enforceable. However, Venezuela
clearly believed that it was extraditing Benitez on the condi-
tion that he not be subject to a life sentence. That limitation
must be enforced.
[9] Rauscher and Browne place heavy emphasis on
whether the expectations of the extraditing country, as
expressed in its extradition orders, are honored. Only by
doing so can the “manifest scope and object” of an extradition
treaty be honored in the “highest good faith.” See Rauscher,
119 U.S. at 422; Browne, 205 U.S. at 321. Here, that requires
that Venezuela’s attempt to exercise its rights under the extra-
dition treaty be honored, despite its failure to extract contrac-
tually binding assurances from the United States that a life
sentence would not be imposed. Rauscher and Browne, the
purpose of the treaty, and the respect due our longstanding
extradition relationship with Venezuela call for such an inter-
pretation. The state court’s decision otherwise was objectively
unreasonable.
IV
[10] Benitez’s indeterminate life sentence was the result of
an objectively unreasonable decision by the California courts.
We therefore grant his habeas petition and remand the case
for re-sentencing. Upon re-sentencing, the sentencing limita-
tion in the Venezuelan extradition order must be honored to
the extent that it is authorized by the treaty language. The
treaty says nothing about sentences for a specific term of
years. Therefore, upon re-sentencing the California court may
sentence Benitez to any term of years consistent with Califor-
nia law, but not to a life sentence.
REVERSED and REMANDED.