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Avila-Ramos v. Kammerzell

United States Court of Appeals, Tenth Circuit

June 28, 2018

MIRELLA IVONNE AVILA-RAMOS, Petitioner - Appellant,
v.
JOHN L. KAMMERZELL, United States Marshal for the District of Colorado; KENNETH DEAL, Acting United States Marshal for the District of Colorado, Respondents - Appellees.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-01221-WJM-KLM)

          Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denver, Colorado, for Petitioner-Appellant.

          J. Bishop Grewell, Assistant United States Attorney (and Robert C. Troyer, United States Attorney, on the brief), Denver, Colorado, for Respondents-Appellees.

          Before BACHARACH, KELLY, and MORITZ, Circuit Judges.

          KELLY, Circuit Judge.

         Petitioner-Appellant Mirella Ivonne Avila-Ramos appeals from the district court's denial of habeas corpus relief from an extradition certification order. On appeal, she challenges the magistrate judge's and district court's probable cause rulings. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm because the magistrate judge adequately found probable cause that Ms. Avila-Ramos committed aggravated homicide, the crime identified in the extradition request.

         Background

         Ms. Avila-Ramos is wanted for aggravated homicide in Chihuahua, Mexico. Supp. R. 26. According to the warrant for her arrest, Ms. Avila-Ramos plotted with Arturo Heriberto Herrera Rey, her paramour, to murder her husband. Id. at 38. Ms. Avila-Ramos's husband, who had survived an earlier attempt on his life, was on his way to a hospital appointment when he was attacked and killed by a hired gun. Id. at 31, 38. An investigation implicated Ms. Avila-Ramos and Mr. Rey in the hit, and Mr. Rey was convicted of aggravated homicide for his involvement in the crime. Def.'s Ex. B at 32, In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D. Colo. Oct. 7, 2015), ECF No. 178-1. Now, Mexico requests Ms. Avila-Ramos's extradition from the United States to face charges for her participation in the plot. 4 R. 20-21; Supp. R. 43.

         After a hearing, a magistrate judge certified Ms. Avila-Ramos as extraditable. In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D. Colo. May 6, 2016), ECF No. 181. Among the magistrate judge's findings was that there was sufficient evidence to establish probable cause that Ms. Avila-Ramos committed aggravated homicide. Id. at 16. Ms. Avila-Ramos filed a petition for a writ of habeas corpus challenging the extradition certification order, 1 R. 8, which the district court denied, Avila-Ramos v. Kammerzell, 228 F.Supp.3d 1196, 1204 (D. Colo. 2017). In upholding the magistrate judge's probable cause determination, though, the district court characterized Ms. Avila-Ramos's offense as conspiring to murder her husband (rather than as aggravated homicide). See id. at 1203.

         On appeal, Ms. Avila-Ramos argues that (1) a finding of probable cause for conspiring to commit murder does not subject her to extradition for aggravated homicide, the offense identified in the extradition request, and (2) the magistrate judge based her probable cause determination on inadequate evidence.

         Discussion

         Habeas review of a probable cause determination in an extradition proceeding is limited to the narrow issue of "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Peters v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989) (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)). In other words, the petitioner's appeal "must fail if there is 'any evidence of probable cause.'" Id. (quoting Theron v. U.S. Marshal, 832 F.2d 492, 501 (9th Cir. 1987), abrogated on other grounds by United States v. Wells, 519 U.S. 482 (1997)). On appeal, we "review the district court's legal determinations de novo and its findings of fact for clear error." Smith v. United States, 82 F.3d 964, 965 (10th Cir. 1996). Here, where the district court made no additional factual findings concerning probable cause, our review of the district court's judgment is purely de novo. See Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) ("We review the district court's judgment de novo. In this context, that means that, with respect to the extradition court, we stand in the same position as did the district court." (citation omitted)).

         A. The Magistrate Judge Found Probable Cause for the Crime Identified in the Extradition Request

         Ms. Avila-Ramos first argues that she is not extraditable because probable cause was not found for the crime identified in the extradition request. The extradition request charges her with aggravated homicide, but she contends that probable cause was found for conspiracy to commit murder, which allegedly ...


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