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Pena-Bencosme v. Warden

March 25, 2008


The opinion of the court was delivered by: Garaufis, United States District Judge


Jeffry Alejandro Pena-Bencosme ("Pena-Bencosme") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Petition for Writ of Habeas Corpus (Docket Entry #11) ("Petition").) Pena-Bencosme challenges Magistrate Judge Steven M. Gold's ("Judge Gold") grant of the Government's request to certify Pena-Bencosme's extradition to the Dominican Republic, where he stands charged with voluntary homicide in the shooting death of police officer Santiago Fortuna Sanchez. (November 13, 2006 Memorandum and Order ("November 13, 2006 M&O") in Case No. 05-M-1518.)

After Pena-Bencosme filed his habeas petition, Judge Gold reopened the extradition proceedings, and on October 30, 2007, denied Pena-Bencosme's request for reconsideration of the original decision. (October 30, 2007 Memorandum and Order ("October 30, 2007 M&O") in Case No. 05-M-1518.) Thereafter, this court granted Pena-Bencosme's request to file limited supplemental briefing, which he did on January 14, 2008. The Government responded on January 23, 2008, and the parties appeared for oral argument on February 1, 2008. For the reasons set forth below, Pena-Bencosme's habeas petition is DENIED.

I. Background

Initial Extradition Hearing

In support of extradition at the initial hearing, the Government presented an affidavit prepared by a prosecutor in the Dominican Republic and a Case Report, both of which described the statements of four eyewitnesses to the shooting. The eyewitness accounts stated that PenaBencosme shot Fortuna Sanchez without provocation after Pena-Bencosme had been urinating in the street, Fortuna Sanchez had asked him to stop, and Pena-Bencosme had been verbally abusive to Fortuna-Sanchez. (November 13, 2006 M&O at 9-10.) The Government also provided ballistics and forensic reports purporting to show that a bullet recovered from Fortuna Sanchez's body came from Pena-Bencosme's gun and that a bullet recovered from Pena-Bencosme's body did not come from Fortuna Sanchez's gun. (Id. at 12.)

Pena-Bencosme disputed the Government's version of the facts, arguing that he shot Fortuna Sanchez only after Fortuna Sanchez shot him. (Id. at 8.) He offered testimony from eyewitnesses stating that Fortuna Sanchez had threatened Pena-Bencosme prior to the shooting, that Fortuna Sanchez had in fact fired the first shot, and that Pena-Bencosme had acted in self-defense. (Id. at 13-14.) Two of those witnesses had first been presented by the Government in support of their extradition request, but now attested that there were "omissions and distortions" in the statements submitted by the Dominican prosecutor "that might mislead the reader." (Id. at 14-15.) Both witnesses claimed that their original statements did not include their descriptions of Fortuna Sanchez's intoxication, his role as the aggressor, and their opinions that Pena-Bencosme acted in self-defense. (Id. at 15.) None of Pena-Bencosme's evidence called into question the Government's assertion that he fired his weapon and shot Fortuna Sanchez.

Judge Gold acknowledged that Pena-Bencosme's evidence was troubling and raised "substantial questions" about the Government's proof. (Id. at 19.) Nevertheless, Judge Gold concluded that the defense affidavits were not admissible in an extradition proceeding and that, even if they were, they would not defeat probable cause. (Id. at 20.) Specifically, Judge Gold found that there was little reason to believe that the witness statements presented by PenaBencosme were more accurate than those submitted by the prosecution, that the incriminating statements of two other eyewitnesses supporting the Government's version of events stood unqualified, and that the ballistics evidence indicating that Pena-Bencosme was shot by a gun other than Fortuna Sanchez's remained uncontradicted. (Id. at 20.) Judge Gold concluded that at most, Pena-Bencosme's evidence raised factual disputes that should be resolved at trial in the Dominican Republic and thus was insufficient to defeat probable cause. (Id. at 21-22.)

In addition to finding that the Government had met its probable cause burden, Judge Gold found that extradition would be warranted for two reasons even if Pena-Bencosme had persuasively countered the Government's proof and established that he was acting in self-defense. First, under Dominican Republic law, self defense is an affirmative defense (id. at 8-9), evidence of which is not properly considered in an extradition proceeding, see Matter of Extradition of Rabelbauer, 638 F.Supp. 1085, 1089 (S.D.N.Y. 1986) ("An accused may not offer evidence in the nature of a defense at an extradition hearing."). Second, under Dominican Republic law self-defense is not a complete defense to homicide but rather a basis for a sentence reduction. (November 13, 2006 M&O at 8-9.)

Finally, Pena-Bencosme argued that the extradition request should be denied because he feared for his safety if returned to the Dominican Republic. (Id. at 22.) Judge Gold rejected the argument based on the firmly established "rule of non-inquiry," which prohibits an extraditing court from inquiring into the degree of risk an extraditee will face after extradition. (Id. at 22-23.) Thus, Judge Gold granted the request for a certificate of extraditability against PenaBencosme. (Id. at 23.)

Initiation of Habeas Proceedings

On December 13, 2006, Judge Gold stayed the certificate of extraditability and directed the Clerk of Court to open Pena-Bencosme's Notice of Appeal of the November 13, 2006 M&O as a section 2241 petition. (Docket Entry #2.) In his Petition, Pena-Bencosme argues that (1) reliable and credible evidence was not presented to support Judge Gold's probable cause finding, (2) the Dominican Republic submitted a tailored version of the facts intended to deceive the court, (3) his due process rights were violated at the extradition hearing, and (4) the request for extradition was based on a defective warrant. (Petition at 1.)

With respect to the probable cause finding, Pena-Bencosme argues that the Government's evidence and Pena-Bencosme's evidence "showed a completely different picture of the incident," which raises "substantial questions regarding the integrity and reliability of the Dominican Republic's presentation." (Id. at 25-26.) Pena-Bencosme asserts that his evidence is trustworthy, in contrast to the Government's evidence, and that "the only credible evidence presented" showed that Fortuna-Sanchez shot first. (Id. 30-31.) Pena-Bencosme concedes that the ballistics report offered by the Government found one of two bullets removed from Fortuna-Sanchez's body "compatible" with Pena-Bencosme's gun, but argues that the report fails to identify which of the bullets caused Fortuna Sanchez's death. Without proof that Pena-Bencosme's gun caused the death, he contends, "the government's submission lacks probable cause to believe PenaBencosme was responsible for the death of Fortuna Sanchez." (Id. at 32.) Nowhere in his submission does Pena-Bencosme deny or challenge the Government's contention that he shot Fortuna Sanchez.

The Government opposed the motion (Docket Entry #15), and this court granted PenaBencosme leave to request that Judge Gold reopen the extradition hearing to hear further evidence ...

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