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March 25, 2003


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge


I. Introduction

In this habeas proceeding pursuant to 28 U.S.C. § 2241, petitioner Jose Angel Orellana ("Orellana") seeks to avoid extradition to Mexico, where he stands charged with the murder of his wife, Janeth Xiomara Hernandez Sevilla ("Hernandez") in 1997.*fn1 On March 15, 2001, following a hearing, Magistrate Judge Ellis signed a Certificate of Extraditability and Order of Commitment. Due to the somewhat convoluted factual and procedural history detailed below, I am the third Magistrate Judge to address the merits of Orellana's extraditability, and at least the fifth magistrate judge to play a role in the proceedings against him. As set forth below, I agree with Magistrate Judges Ellis and Fox that this Court has jurisdiction to act, that Orellana has been charged in Mexico with an extraditable offense, and that there is probable cause to believe that he committed the crime charged. I further agree with Judge Ellis that Mexico's request for extradition is supported by an adequate show ing of probable cause. I therefore recommend that Orellana's application for a writ of habeas corpus be denied, and that he be returned to Mexico to stand trial.

II. Undisputed Facts

The following facts, unless otherwise noted, are undisputed.

Orellana is a citizen of Honduras and is a lawful permanent resident of the United States. (See Affirmation of Jose Angel Orellana, dated Dec. 4, 2000 ("Orellana Affirm."), ¶¶ 3, 4). Prior to his arrest, Orellana w as living in the Bronx. (Id. ¶ 4).

According to the extradition request, Orellana was in Mexico during August 1997. (Orellana Mem. Ex. A ("Extrad. Req.") at 43). Prior to Orellana's arrival in Mexico, his wife, w ho lived in Mexico, had been dating another man. (Id. at 43,48).

On August 12, 1997, Hernandez's cousin, Janeth Susana Deras Sevilla ("Deras") was at her house in Mexico, which was next door to the house where Hernandez and Orellana were staying. (Id. at 41). Also present at Deras' house were Orellana, Hernandez, Jose Luis Ornelas Romero ("Ornelas") and Ornelas' common-law wife Esther Montalvo Crespo ("Montalvo"). (Id. at 41). During the afternoon, Deras, Ornelas, and Montalvo departed, leaving Orellana alone with Hernandez in Deras' house. (Id.).

Deras returned to her home several hours later and noticed that the door to Hernandez's house was closed. (Id.). Deras later entered Hernandez's house, but she did not see Hernandez or Orellana there. (Id.).

The following day, Deras went to Hernandez's home with Ornelas and Montalvo. (Id.). Ornelas then went inside where he discovered Hernandez's corpse. (Id. at 42). The coroner opined that the cause of Hernandez's death was asphyxia by smothering/strangulation. (Id. at 43-44).

Nearly two years later, on July 21, 1999, at approximately 8 p.m., New York City police detectives arrested Orellana in the Bronx. (Orellana Affirm. ¶ 5; Gov't Mem. Ex. C (Affirmation of Steven Kobre, dated Feb. 22, 2000 ("Kobre Affirm."), ¶ 2(b)). Although Orellana was a suspect in his wife's death, a warrant for his arrest had not yet been issued in Mexico. (Kobre Affirm. ¶ 2(c)). The United States Attorney's Office contends that the Police Department mistakenly believed that such a warrant existed, (id.), but none of the arresting officers has testified to that effect in connection with any of the proceedings in federal court.

The following day, after Orellana was advised of his Miranda rights, he made two statements implicating himself in the homicide. (See Orellana Affirm. ¶¶ 15, 16). The first statement was written and given to the police at approximately 10:30 a.m. (Kobre Affirm. ¶ 2(e); Gov't Mem. Ex. D). This statement includes a Spanish "Aviso Miranda." (Id.). The second statement, which was videotaped, was given to an Assistant District Attorney at approximately 8 p.m.*fn2 In both statements, Orellana indicated, in substance, that he choked his wife after she insulted him and subsequently left her residence believing that she was dead. (See Gov't Mem. Ex. D; Extrad. Req. at 45-46). Later the same day, he drove to Guatemala with several other men. (Id.).

Orellana contends that both his confessions are untrue, but were given because the police falsely told him that he would be returned to Mexico if he failed to confess, but would be permitted to remain in the United States if he admitted his culpability. (Orellana Affirm. ¶¶ 13-14). He further contends that the police officers ignored his requests to communicate with a lawyer and his family and friends, and failed to advise him of his right to contact the Honduran consulate before being interviewed. (Id. ¶¶ 8-11). In his affirmation, Orellana also renounces his earlier confessions, stating, "I did not kill my wife and I am completely innocent of any involvement in her death." (Id. ¶ 17).

After making his statements to the authorities, Orellana was held at a Bronx police station for an additional six days without being presented before a judicial officer. (See Kobre Affirm. ¶ 2(g)). On July 28, 1999, Orellana was turned over to Immigration and Naturalization Service ("INS") agents following the issuance of a warrant by Magistrate Judge Katz, upon a criminal complaint which charged Orellana with the misdemeanor of not having a certificate of alien registration or an alien registration receipt card in his possession at the time of his arrest. (See id. ¶ 2(k); 8 U.S.C. § 1304). This charge was dismissed the following day when Orellana's alien registration receipt card was surrendered to the authorities, but the INS continued to detain Orellana on administrative charges arising out of his allegedly unsanctioned return from ...

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