Weilburg, Daro v. Sims, Gregory

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2005*
Decided May 20, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-1103
DARO WEILBURG, Appeal from the United States District
Petitioner-Appellant. Court for the Northern District of
Illinois, Western Division
v.
No. 03 C 50451
GREGORY SIMS,
Respondent-Appellee, Philip G. Reinhard,
Judge.
*
After examining the briefs and record, we have concluded that oral argument
is unnecessary. Accordingly, this appeal is submitted on the briefs and record.
See Fed. R. App. P. 34(a)(2).
No. 05-1103 Page 2
ORDER
Daro Weilburg was in Arizona at the time that Illinois brought charges against
him for failing to surrender himself on a theft conviction. Weilburg was eventually
extradited to Illinois, found guilty of violating his bail bond, and sentenced to thirty-
months’ imprisonment to run concurrently with his seven-year sentence for theft. He
filed a petition for habeas corpus in the district court claiming, as relevant here, that
his conviction should be overturned because the Assistant State’s Attorney altered the
indictment submitted to Arizona for his extradition. Specifically, the Assistant State’s
Attorney crossed out the description of the underlying crime for which he failed to
surrender himself, which she had incorrectly listed as “burglary,” and corrected it to
read “theft.” The district court denied the petition, concluding under Frisbie v. Collins,
342 U.S. 519, 522, (1952), and United States v. Mitchell, 957 F.2d 465, 470 (7th Cir.
1992), that the manner of extradition was irrelevant to the power of the requesting
state to convict Weilburg.
The Supreme Court has upheld this principle for over 100 years. See Frisbie,
342 U.S. at 522; and Ker v. Illinois, 119 U.S. 436, 441, 445 (1886) (collectively the
“Ker-Frisbie doctrine”). Weilburg’s only argument on appeal is that the Assistant
State’s Attorney’s actions were so egregious that we should carve out an exception to
the Ker-Frisbie doctrine as the Second Circuit did in United States v. Toscanino, 500
F.2d 267, 275 (2d Cir. 1974) (creating exception to the Ker-Frisbie doctrine where
appellant was tortured and interrogated for seventeen days). However, we have
already rejected that approach, and have declined to create any exceptions to the
doctrine. See Mitchell, 957 F.2d at 470; Matta-Ballesteros v. Henman, 896 F.2d 244,
263 (7th Cir. 1990) (declining to create exception where petitioner was tortured). We
see no reason here to part with this longstanding precedent.
AFFIRMED.