Jason Bennyhoff
A primer on contested interstate extradition and the appeal therefrom
When an interstate extradition packet comes to my office and finds its way to my desk, I have a fairly typical reaction: I ask, “Where’s Fred?” Fred Felcman is our first assistant and generally knows how to do esoteric things that come up once in a blue moon that no one else knows (or can remember) how to handle. But Fred Felcman doesn’t work in every office, and sometimes he’s at Disneyland and unavailable when unfamiliar issues crop up. Having done my own research on the subject, I am writing this article in the hopes that what I learned will give other prosecutors a resource regarding the general outlines of contested interstate extradition proceedings and the appeal process that follows.
The rules of interstate extradition
Interstate extradition is a “summary and mandatory executive proceeding” derived from the language of Article IV, §2 of the United States Constitution. In Texas, this procedure is codified by the Uniform Criminal Extradition Act. The summary and mandatory nature of the extradition proceeding is summed up by §2 of the governing statute, which states that “it is the duty of the Governor of this State to have arrested and delivered up to the Executive Authority of any other State of the United States any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State.” Under the Act, the term “fugitive” also encompasses persons charged with committing an act intentionally resulting in a crime in the demanding state, even if they have not actually fled the demanding state. The term “demanding state” means the state where the crime was committed and which is requesting the return of the fugitive. The “asylum state” is the state where the fugitive was found.
Though interstate extradition proceedings are summary and mandatory, they can still be challenged, as provided for by the governing statute. The statute allows the person being sought to challenge the extradition by way of a writ of habeas corpus.
Contested hearings
My own recent brush with a contested extradition came when Fred handled a case in which the fugitive’s defense team sought to convince the trial judge to inquire into the underlying facts of the demanding state’s case. Fred did a masterful job of keeping the trial court on track and directing the inquiry solely at the propriety of the extradition packet and the limited evidence the fugitive’s defense team was able to put on to contest identity.
When prosecutors are faced with a contested hearing on a writ of habeas corpus in this context, it is incumbent to remind the court, as Fred did in our case, that the scope of its inquiry is severely limited. As detailed below, there is really very little that the habeas court can consider beyond the facial validity of the extradition documents. Habeas counsel will no doubt seek to expand that inquiry, but knowledge of the precedents below should help the prosecutor quash that attempt.
The United States Supreme Court has enumerated the procedure in a contested writ of habeas corpus challenging an extradition order as follows:
Whatever the scope of discretion vested in the governor of an asylum state, the courts of an asylum state are bound by Art. IV, §2, and, where adopted, by the Uniform Criminal Extradition Act. A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Once the governor [of an asylum state] has granted extradition, a court considering release on habeas corpus can do no more than decide: a) whether extradition documents on their face are in order; b) whether petitioner has been charged with a crime in the demanding state; c) whether the petitioner is the person named in the request for extradition; and d) whether the petitioner is a fugitive.
This scope of review on the part of the court that is tasked with the habeas writ explicitly disallows the courts of the asylum state from making their own inquiry into the propriety of the charges in the demanding state. “When a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination.” This rule is also codified in §20 of the Uniform Criminal Extradition Act.
However, there is one way the petitioner may go beyond the assertions of the extradition paperwork during the hearing and introduce extrinsic evidence, and that is if he is making a challenge to the assertion that he is the person demanded in the extradition paperwork. In that scenario, once the State has introduced into evidence the Governor’s Warrant, which is the document signed by the asylum state’s governor commanding that the fugitive be arrested and subjected to extradition proceedings, the burden then shifts to the petitioner to present some evidence that he is not the person demanded.
If the prosecutor effectively presents these precedents and the extradition documents are in order, then extradition is all but assured (assuming you have the right person). The question then becomes, if extradition is granted and the application for relief by way of habeas corpus is denied, what happens on appeal of that order?
In our case, the trial court found the extradition documents in order, rejected the fugitive’s contest as to the issue of identity, and ordered his extradition. The fugitive then appealed the trial court’s order.
Appealing the denial
After receiving a notice of appeal on denial of a writ of habeas corpus contesting extradition, a prosecutor’s first question might well be, “Can he appeal this?” The answer is yes. On appeal, the habeas court’s ruling is reviewed for an abuse of discretion. The appellate court will give almost total deference to the trial court’s determination of facts as long as they are supported by the record.
In our case, the fugitive appealed, arguing that he should have been allowed to go behind the assertions on the face of the extradition paperwork, that his identity had not been sufficiently proven, and that he should have been able to confront his accuser at the extradition proceeding (or more precisely, the prosecutor who swore to the documents in the demanding state).
That’s all well and good, you might say, but what if the appeal is on some novel legal issue, rather than a factual dispute? Texas courts have addressed numerous challenges to extradition that turned on legal rather than factual disputes. The following is a non-exclusive examination of these challenges and their resolutions, which I hope will provide guidance should you face a legal challenge to an extradition proceeding.
Equity is no bar to extradition. The Texas courts have consistently held that equitable considerations are no bar to extradition and that the trial courts are “without authority to consider equitable issues” in extradition proceedings.
The Supremacy Clause. The principles of extradition, while now enshrined in the Uniform Criminal Extradition Act, are derived from the United States Constitution. In light of that, courts have held that state law principles cannot be invoked to avoid extradition without running afoul of the Supremacy Clause of the United States Constitution.
Delay is no bar to extradition. The State is not required to act as soon as possible to secure extradition, and the fact that the demanding state did not pick the fugitive up as soon as possible, or even after having repeated opportunities to do so, is no bar to extradition.
Limitations, laches, and estoppel may not be invoked against the State. The Texas Supreme Court has held that in the civil law context, “the State in its sovereign capacity, unlike ordinary litigants, is not subject to the defenses of limitations, laches, or estoppel.” That principle has since been explicitly applied to the extradition context.
In our case, the appellate court upheld the trial court’s order granting extradition and rejected the fugitive’s arguments, including his argument that his Sixth Amendment confrontation rights applied at the extradition proceeding.
Conclusion
Interstate extradition may be a relatively rare animal in your practice, but when it does appear, it should present few problems and little fear as long as you have some basic knowledge of the legal standards underpinning it. I hope this article has been helpful to you. Please feel free to contact me if I can be of any assistance.
Endnotes
[1] Michigan v. Doran, 439 U.S. 282, 288 (1978).
[2] Tex. Code Crim. Proc. art. 51.13.
[3] Id. at § 2.
[4] Id. at § 6.
[5] Id. at §10.
[6] Id.
[7] Ex parte Rhodes, No. 14-15-00618-CR, slip. op., 2016 WL 889169 (Tex. App.—Houston [14th Dist.] Mar. 8, 2016, pet. ref’d).
[8] Id.
[9] Doran, 439 U.S.at 288-89; see also State ex rel Holmes v. Klevenhagen, 819 S.W.2d 539, 542-43 (Tex. Crim. App. 1991) and Ex parte Walker, 350 S.W.3d 417, 419-20 (Tex. App.—Eastland 2011, pet. ref’d) (adopting and endorsing this procedure and scope of review in Texas).
[10] Doran, 439 U.S. at 290 see also Ex parte Gust, 828 S.W.2d 575, 576 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (adopting this language from Doran).
[11] Tex. Code Crim. Proc. art. 51.13, §20.
[12] Id.; Rentz. v. State, 833 S.W.2d 278, 280 (Tex. App.—Houston [14th Dist.] 1992, no pet.).
[13] Rentz, 833 S.W.2d at 280.
[14] See Tex. Code Crim. Proc. art. 51.13, §§3, 7 (setting out requirements for extradition paperwork).
[15] Green v. State, 999 S.W.2d 474, 476 (Tex. App.—Fort Worth 1999, pet. ref’d) citing Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998).
[16] Ex parte Roldan, 418 S.W.3d 143, 145 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
[17] Id.
[18] Ex parte Rhodes, No. 14-15-00618-CR, slip. op. at 1, 2016 WL 889169 at *1 (Tex. App.—Houston [14th Dist.] Mar. 8, 2016, pet. ref’d).
[19] Klevenhagen, 819 S.W.2d at 543.
[20] See Doran, 439 U.S. at 290.
[21] See, e.g., Brooks v. State, 91 S.W.3d 36, 40 (Tex. App.—Amarillo 2002, no pet.) (holding that principle of comity could not be invoked to void extradition without violating Supremacy Clause of United States Constitution).
[22] Ex parte Sanchez, 987 S.W.2d 951, 953 (Tex. App.—Austin 1999, pet. ref’d untimely filed) (11 year delay in picking up fugitive did not bar extradition); see Brooks, 91 S.W.3d at 38 (deportation of fugitive who was arrested for extradition proceedings and released three times because demanding state did not send an officer to get him was not barred).
[23] State v. Durham, 860 S.W.2d 63, 67 (Tex. 1993).
[24] Brooks, 91 S.W.3d at 40.
[25] Ex parte Rhodes, No. 14-15-00618-CR, slip. op. at 8, 2016 WL 889169 at *3 (Tex. App.—Houston [14th Dist.] Mar. 8, 2016, pet. ref’d).