United States District Court, D. Oregon, Portland Division
BRIAN J. PARSONS AKA PAUL GARZA MATHISON, Petitioner,
MARION FEATHER, Warden, FCI Sheridan, Federal Bureau of Prisons, RUSSELL E. BURGER, U.S. Marshal for the District of Oregon, Respondents.
OPINION AND ORDER
ROBERT E. JONES, District Judge.
Petitioner Brian Parsons seeks review of the magistrate judge's order certifying him for extradition to Mexico to face criminal charges there ("Certification Order"). Such an order cannot be challenged on direct appeal but review is available by way of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008); Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006). Parsons contends the Certification Order violates his rights under the United States Constitution, the Extradition Treaty between the United States of America and the United Mexican States ("Extradition Treaty"),  and the United Nations Convention Against Torture ("CAT"). For the following reasons, the petition for writ of habeas corpus is DENIED and this action is DISMISSED.
Parsons is an American citizen wanted in Mexico for allegedly fraudulent conduct in violation of the Criminal Code of the Mexican State of Michoacan. The Government of Mexico alleged that from March to May 2009, Parsons engaged in a fraudulent scheme to deprive Jose Jesus Bejar Ortiz ("Ortiz") of the equivalent of $235, 374 in cash and a 2005 BMW automobile. On October 9, 2009, a Mexican court issued a warrant for Parson's arrest based on a criminal investigation completed by the prosecuting authority in the State of Michoacan.
Based on apparently unrelated criminal activity, Parsons was convicted in the United States of felony car theft and identity theft and received a sentence of consecutive 13-month terms of incarceration in the custody of the Oregon Department of Corrections. While Parsons was in state custody, the U.S. Attorney filed a complaint on behalf of the Government of Mexico seeking Parsons's extradition on the 2009 arrest warrant from Mexico. In September 2012, the district court issued a warrant and Parsons was arrested upon his release from state custody. He remains in federal custody.
Parsons opposed extradition and asked the magistrate judge to refrain from ruling on the extradition request pending proceedings in Mexico known as an " amparo proceeding" in which he challenged the 2009 arrest warrant under the Mexican Constitution. The magistrate judge denied Parsons's motion to refrain from ruling and conducted an extradition hearing in accordance with 18 U.S.C. § 3184, et seq. The magistrate judge certified to the Secretary of State of the United States that all legal requirements of the Extradition Treaty were satisfied and Parsons was eligible for extradition to Mexico for the offenses described in the extradition request. In re Extradition of Paul Garza Mathison A/K/A Brian Jake Parsons, 3: 12-MJ-00142-1, 2013 WL 5431546 (D. Or. Sept. 26, 2013).
A habeas petition is the only avenue by which a certification for extradition may be challenged. Manta, 518 F.3d at 1140; Vo, 447 F.3d at 1240. On October 25, 2013, Parsons commenced the present action by filing his habeas petition under 28 U.S.C. § 2241.
The district court's habeas review of an order certifying an individual for extradition is limited to determining whether (1) the extradition magistrate had jurisdiction to conduct the proceedings and jurisdiction over the person named in the extradition request, (2) the treaty was in force, (3) the individual's alleged offense fell within the terms of the extradition treaty, and (4) there is competent evidence supporting the probable cause determination of the magistrate. Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Manta, 518 F.3d at 1140; Vo, 447 F.3d at 1240; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999).
Parsons does not challenge the jurisdictional basis of the Certification Order or the legal force of the Extradition Treaty. He contends that the government failed to show his alleged offenses fall within the terms of the Extradition Treaty and that the evidence does not support the magistrate judge's probable cause determination. Parsons raises the additional claims that the original Mexican arrest warrant was invalid and that he is likely to be tortured if returned to Mexico.
I. Dual Criminality
Article 2 of the Extradition Treaty sets forth a dual criminality requirement which excludes an offense from the terms of the treaty unless it is considered criminal in both the United States and Mexico. Parsons contends the government failed to show that his alleged conduct would have been a crime if perpetrated in the United States.
Dual criminality is determined by comparing the essential character of the acts criminalized by the laws of both countries. Manta, 518 F.3d at 1141; Emami v. United States District Ct., 834 F.2d 1444, 1450 (9th Cir. 1987). The crime need not be described by the same name or carry the same scope of liability and the elements of the alleged foreign crime need not be identical to the elements of the substantially analogous domestic crime. Manta, 518 F.3d at 1141. It is enough that the substantive conduct punished by the statute in both countries is functionally equivalent. Emami, 834 F.2d at 1450. In determining dual criminality, the foreign offense may be compared to a ...