Gustavo Luna-Ruiz v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO LUNA-RUIZ, No. 17-55803
Petitioner-Appellant, D.C. No. 2:14-cv-02482-VAP
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent-Appellee.
UNITED STATES OF AMERICA, No. 17-55804
Plaintiff-Appellee, D.C. No.
2:13-cv-05059-VAP-AJW
v.
GUSTAVO LUNA-RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted February 8, 2019**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,*** District
Judge.
Petitioner Gustavo Luna-Ruiz (aka Gustavo De La O) appeals the district
court’s judgment denying his 28 U.S.C. § 2241 habeas corpus petition challenging
a magistrate judge’s certification of the government’s request under 18 U.S.C.
§ 3184 for Petitioner’s extradition to Mexico to face aggravated homicide charges.
We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and we affirm.
1. On habeas review, the district court must uphold the magistrate judge’s
probable cause determination if any competent evidence supports the
determination. Manta v. Chertoff, 518 F.3d 1134, 1145 (9th Cir. 2008). We
review de novo whether the district court erred in denying a habeas corpus petition
challenging certification of an extradition order. McKnight v. Torres, 563 F.3d
890, 892 (9th Cir. 2009).
2. Competent evidence supports the magistrate judge’s probable cause
determination for the crime of aggravated homicide. Petitioner is charged with
aggravated homicide as defined by Articles 147–148 of the Penal Code for the
State of Baja California, Mexico. As relevant here, a homicide is aggravated when
the killer has an unfair advantage because of the weapons used, such as when the
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
2
killer is armed and the victim is not; but a homicide is not aggravated if the killer
acts in self-defense. Penal Code for the State of Baja California, art. 148.
Eyewitness accounts of the shooting state that the victim punched Petitioner while
Petitioner was seated inside a vehicle. Petitioner then shot the victim in the head at
point-blank range and drove away, leaving the victim to die. The eyewitness
accounts are competent evidence supporting the magistrate judge’s conclusion that
probable cause existed for the charged crime of aggravated homicide.
Petitioner argues that the incident was not an aggravated homicide because
the shooter acted in self-defense.1 The government contends that Petitioner’s
argument is an affirmative defense that does not affect a probable cause
determination for extradition. Courts generally do not consider affirmative
defenses when determining whether probable cause exists to support an extradition
request. See, e.g., Charlton v. Kelly, 229 U.S. 447, 462 (1913) (holding that the
magistrate properly excluded evidence of insanity in an extradition proceeding
because the defense was properly reserved for determination at trial in the charging
jurisdiction). But even assuming arguendo that Petitioner’s claim is properly
1
Petitioner raises this argument for the first time on appeal. “As a general rule, we
do not consider issues raised for the first time on appeal.” Manta, 518 F.3d at
1144. But we recognize an exception where “plain error has occurred and an
injustice might otherwise result.” Id. (quoting United States v. Flores-Montano,
424 F.3d 1044, 1047 (9th Cir. 2005)). Because an erroneous extradition order
would affect Petitioner’s substantial rights, we review the magistrate judge’s
probable cause determination for plain error.
3
before us, it still fails because competent evidence supports the magistrate judge’s
probable cause determination. We therefore conclude that the magistrate judge did
not commit error—plain or otherwise—in finding probable cause supported the
crime charged.
3. The record contains ample competent evidence to support the magistrate
judge’s determination that there was probable cause to conclude that Petitioner was
the individual who perpetrated the crime. Two eyewitnesses identified Petitioner’s
photograph as that of the shooter. Two other individuals identified Petitioner as
the person they knew to be Gustavo Luna-Ruiz, the person wanted for the
shooting. Although Petitioner raises several objections to the procedures used to
obtain the eyewitness identifications, “there is no per se rule that specifies which
identification procedures are ‘competent’ for probable cause purposes.” Quinn v.
Robinson, 783 F.2d 776, 815 (9th Cir. 1986); see also Manta, 518 F.3d 1144–45.
Accordingly, the procedures used to obtain the identifications do not negate the
identifications as competent evidence to support the magistrate judge’s probable
cause determination at the extradition certification.
AFFIRMED.
4