Gordon v. Warden, NH State Prison

2003 DNH 150

• Court: District Court, D. New Hampshire
• Decided: August 29, 2003
• Docket: CV-02-427-M
• Status: Published

Opinion

Gordon v . Warden, NH State Prison CV-02-427-M 08/29/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steven Gordon, Petitioner

v. Civil N o . 02-427-M Opinion N o . 2003 DNH 150 Warden, New Hampshire State Prison, Respondent

O R D E R

By order dated March 2 4 , 2003, the court dismissed Steven

Gordon’s petition for habeas corpus relief, concluding that

“[n]othing in the habeas petition or in the decision of the New

Hampshire Supreme Court suggests that the result reached in

petitioner’s state proceedings was either ‘contrary to’ or

‘involved an unreasonable application of clearly established

Federal law, as determined by the Supreme Court of the United

States.’” Gordon v . Warden, 2003 DNH 51 at 11-12 (D.N.H. March

2 4 , 2003). Subsequently, however, the court vacated that order

(subject to reinstatement) and granted petitioner an additional

30 days within which to file an objection to the State’s motion

for summary judgment. Gordon v . Warden, 2003 DNH 79 (D.N.H. May

1 6 , 2003). In that order, the court observed: With the benefit of the court’s earlier order, petitioner should be aware of the legal principles governing his petition for habeas relief. He is encouraged to focus his objection on those issues. Specifically, he must demonstrate that the state court’s adjudication of his claim under the “doctrine of specialty” resulted in either a decision that was “contrary t o , or involved an unreasonable application o f , clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or one that was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).

Id. at 3 . At petitioner’s request, that filing deadline was

extended for an additional 30 days (to July 3 1 , 2003), with the

provision that “no further extensions” would be granted.

Endorsed Order dated June 2 7 , 2003 (docket n o . 1 7 ) . On August

1 1 , 2003, the court received petitioner’s (untimely) objection to

the State’s motion for summary judgment.

In his petition (and as developed more fully in his

objection), petitioner challenges the state court’s jurisdiction

to revoke his probation related to his conviction and sentence

for sexual assaults he committed in 1993. Specifically, he says

the probation revocation proceedings violated the “doctrine of

2 specialty,” insofar as his probation violation was not one of the

charges on which his extradition from Belgium was based.

Background

Petitioner is serving the balance of a six to fifteen year

sentence in the New Hampshire State Prison that was originally

imposed in 1993, after he was convicted of aggravated felonious

sexual assault.1 For reasons that are unclear, in 1997, that

sentence was apparently “modified,” he was released from prison,

and “he was placed on probation.” State v . Gordon, 146 N.H. 3 2 4 ,

325 (2001). Not long after his release (and while he was still

on probation), however, petitioner raped two women in Rockingham

County, New Hampshire (the “1998 sexual assaults”). He was

charged with four counts of aggravated felonious sexual assault,

one count of being a felon in possession of a firearm, and one

count of criminal mischief. Id. But, before he could be

apprehended, petitioner fled to Belgium.

1 Petitioner will also serve two consecutive sentences of life imprisonment without the possibility of parole, and a consecutive three and one-half year sentence for kidnaping. State v . Gordon, 148 N.H. 681 (2002). He also faces re- sentencing on convictions for five additional counts of aggravated felonious sexual assault and two additional counts of kidnaping. State v . Gordon, 148 N.H. 710 (2002).

3 Pursuant to an extradition treaty between Belgium and the

United States, the Rockingham County Attorney promptly requested

petitioner’s extradition based upon the 1998 sexual assaults.

That request was, however, silent as to any charges that might be

brought against Gordon for having violated the conditions of his

probation (which, as noted, was imposed as part of his sentence

for the 1993 sexual assault conviction).

Petitioner was subsequently extradited and, upon his return

to New Hampshire, the State moved to revoke his probation on the

1993 conviction and sentence. Revocation was sought on three

grounds: (1) by committing the most recent aggravated felonious

sexual assaults (i.e., the 1998 sexual assaults), petitioner

violated the conditions of his probation which, among other

things, required that he not engage in any criminal conduct; (2)

by using a handgun to perpetrate those sexual assaults,

petitioner again violated the conditions of his probation (by

committing the crime of being a felon in possession of a

firearm); and (3) by absconding from the state without permission

when he fled to Belgium, petitioner violated the provision of his

4 probation that prohibited him from leaving the jurisdiction

without prior permission.

At his revocation hearing, petitioner challenged the court’s

jurisdiction to revoke his probation, claiming that any such

proceeding would violate the terms of the extradition treaty

between the United States and Belgium. Specifically, petitioner

argued that under the “doctrine of specialty,” he was subject to

detention, prosecution, and punishment in the United States

solely for the offenses for which extradition had been granted -

that i s , only for the 1998 sexual assaults. S o , according to

petitioner, while he could be prosecuted for his most recent

sexual assaults, the State could not lawfully revoke his

probation based upon that conduct because, as to probation

revocation, the extradition request was silent. Revoking his

probation, he argues, amounted to reimposing punishment for

earlier criminal conduct which, again, was not referenced in the

extradition request and, under the doctrine of specialty, could

not be done under the treaty until he first had an opportunity to

leave this country.

5 In short, petitioner says that because Belgian authorities

did not extradite him to face probation revocation (from an

earlier conviction and sentence for sexual assault), they would

object to any proceeding or detention related to or based upon a

probation violation charge and, therefore, his current

incarceration (at least to the extent he is being detained to

serve the balance of his earlier sentence) is in violation of the

extradition treaty and is unlawful. The trial court rejected

petitioner’s argument, as did the New Hampshire Supreme Court on

direct appeal. State v . Gordon, 146 N.H. 324 (2001). This

timely and fully exhausted petition for federal habeas relief

under 28 U.S.C. § 2254 followed.2

2 Parenthetically, the court notes that, as a condition of his release from prison on probation, petitioner waived extradition “from any state in the United States or any other place.” State v . Gordon, 146 N.H. at 325. Although the New Hampshire Supreme Court did not discuss this issue in detail, choosing instead to address petitioner’s claims on the merits, it is entirely possible that petitioner waived his right to challenge extradition related to revocation of his probation. Although he denies any waiver - pointing to the fact that he promptly and vigorously challenged the State’s efforts to revoke his probation - that argument is of little moment i f , as it appears, one of the conditions of his release on probation was a knowing, voluntary, and written waiver of any challenge to extradition.

6 Discussion

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the power to

grant federal habeas relief to a state prisoner with respect to

claims adjudicated on the merits in state court has been

substantially limited. A federal court may not disturb a state

conviction unless the state court’s adjudication “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). Alternatively, habeas

relief may be granted if the state court’s resolution of the

issues before it “resulted in a decision that was contrary t o , or

involved an unreasonable application o f , clearly established

Federal law, as determined by the Supreme Court of the United

States,” at the time the state conviction became final. 28

U.S.C. § 2254(d)(1). See also Williams v . Taylor, 529 U.S. 3 6 2 ,

399 (2000). Here, petitioner attacks the underlying state court

decision pursuant to section 2254(d)(1). S o , to prevail on his

petition, Gordon must demonstrate that the state supreme court’s

rejection of his treaty defense was contrary t o , or involved an

7 unreasonable application o f , clearly established Federal law, as

determined by the Supreme Court.

The United States Supreme Court recently explained the

distinction between decisions that are “contrary to” clearly

established federal law, and those that involve an “unreasonable

application” of that law.

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams, 529 U.S. at 412-13. And, as the Court noted, “[T]he

most important point is that an unreasonable application of

federal law is different from an incorrect application of federal

law . . . . Under § 2254(d)(1)’s ‘unreasonable application’

clause, then, a federal habeas court may not issue the writ

simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly

8 established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 410-11 (emphasis

in original). With those principles in mind, the court turns to

Gordon’s petition.

The doctrine of specialty provides, in general, that a

person brought before a court pursuant to an extradition treaty

can only be tried for offenses that are both covered by the

treaty and actually identified in the extradition proceedings.

See United States v . Alvarez-Machain, 504 U.S. 655 (1992); United

States v . Rauscher, 119 U.S. 407 (1886). See also 18 U.S.C.

§ 3192. Essentially, “[w]hat the doctrine of specialty requires

is that the prosecution be ‘based on the same facts as those set

forth in the request for extradition.’” United States v . Sensi,

879 F.2d 8 8 8 , 895 (D.C. Cir. 1989) (quoting Restatement (Third)

of Foreign Relations Law of the United States § 4 7 7 , comment a ) .

Here, it is uncontested that the facts upon which

extradition was based related to petitioner’s most recent

criminal conduct - the aggravated felonious sexual assaults he

committed in 1998. The State concedes that the extradition

9 request did not mention any intention to revoke petitioner’s

probation, which had been imposed earlier, as part of his

sentence for the 1993 sexual assault. Nevertheless, the New

Hampshire Supreme Court noted that the 1998 sexual assaults

“formed the very basis for finding that he had violated his

probation.” State v . Gordon, 146 N.H. at 327. The court also

pointed out that:

Article 15 of the extradition treaty between the United States and Belgium provides that persons extradited under the treaty “may not be detained, tried, or punished in the Requesting State except for . . . the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense.”

Id. (emphasis added). Because it found that the probation

revocation charge qualified under the treaty as a “differently

denominated offense based on the same facts on which extradition

was granted,” the state court determined that no violation of the

principle of specialty occurred.

Additionally, the state court held that Belgium would have

had no reason to object to petitioner’s reincarceration on his

1993 sentence for sexual assault, since that consequence was the

10 direct result of the criminal acts for which he was extradited in

the first place (i.e., the 1998 sexual assaults). State v .

Gordon, 146 N.H. at 327. That determination was entirely

consistent with federal case law since, as the court of appeals

for this circuit has observed,

In the last analysis, then, the inquiry into specialty boils down to whether, under the totality of the circumstances, the court in the requesting state reasonably believes that prosecuting the defendant on particular charges contradicts the surrendering state’s manifested intentions, o r , phrased another way, whether the surrendering state would deem the conduct for which the requesting state actually prosecutes the defendant as interconnected with (as opposed to independent from) the acts for which he was extradited.

United States v . Saccoccia, 58 F.3d 7 5 4 , 767 (1st Cir. 1995).

In the end, petitioner was held accountable in two ways for

the acts giving rise to his extradition - his probation was

revoked based upon those acts and he was prosecuted for those

acts. That the scope of his liability for that extraditable

criminal conduct extended beyond a single prosecution, and

included the related collateral consequence of probation

revocation, does not implicate the principle of specialty. See

e.g., Collins v . Loisel, 259 U.S. 309, 312 (1922) (“The law does

11 not require that the name by which the crime is described in the

two countries shall be the same; nor that the scope of the

liability shall be coextensive, o r , in other respects, the same

in the two countries. It is enough if the particular act charged

is criminal in both jurisdictions.”); United States v . Sensi, 879

F.2d at 894 (same).

It can hardly be said that the consequence of probation

revocation was unrelated to the acts warranting extradition -

petitioner was extradited by Belgium precisely for the purpose of

holding him fully accountable for his most recent acts of sexual

assault, and those very acts resulted in revocation of his

probation. Under these circumstances it i s , as the state court

reasonably determined, highly doubtful that Belgium would object

to revocation proceedings as part and parcel of holding the

petitioner fully accountable for his extraditable acts of sexual

assault. See generally, Saccoccia, 58 F.3d at 767. See also

United States v . Tse, 135 F.3d 2 0 0 , 205 (1st Cir. 1998) (“Because

the doctrine of specialty is concerned with comity rather than

the rights of the defendant, ‘the protection of specialty exists

only to the extent that the surrendering country wishes.’”)

12 (quoting United States v . Najohn, 785 F.2d 1420, 1422 (9th Cir.

1986)). Belgium would be particularly unlikely to object since

petitioner’s underlying conviction and sentence (as to which his

probation was revoked) were also for (other) acts of aggravated

felonious sexual assault. In other words, petitioner’s probation

revocation and his subsequent consecutive life sentences all stem

from conduct for which Belgium demonstrated a clear willingness

to extradite him: aggravated felonious sexual assault.

In light of the foregoing, it is highly unlikely that the

State’s decision to revoke petitioner’s probation violated the

doctrine of specialty. As noted by the court of appeals for this

circuit:

Specialty . . . is not a hidebound dogma, but must be applied in a practical, commonsense fashion. Thus, obeisance to the principle of specialty does not require that a defendant be prosecuted only under the precise indictment that prompted his extradition, or that the prosecution always be limited to specific offenses enumerated in the surrendering state’s extradition order.

Saccoccia, 58 F.3d at 767 (citations omitted). For purposes of

Gordon’s habeas petition, however, the critical point is this:

regardless of whether this or any other court might conceivably

13 apply the pertinent law in a manner more favorable to Gordon,

“neither the reasoning nor the result of the state-court decision

contradicts” that law. Early v . Packer, 123 S.Ct. 3 6 2 , 365

(2002). Consequently, petitioner has not established (nor can he

establish) that the state court’s resolution of his claims was

“contrary to . . . clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). Nor can petitioner establish that the state court’s

resolution of his claims was based upon an “unreasonable

application” of that law. Id.

Conclusion

The state supreme court’s rejection of petitioner’s treaty

defense was neither contrary t o , nor did it involve an

unreasonable application o f , clearly established Federal law, as

determined by the United States Supreme Court. See 28 U.S.C. §

2254(d)(1). While petitioner may disagree with the state court’s

ultimate conclusion, that court plainly identified and reasonably

applied the governing law in arriving at its decision. That is

to say, the state court correctly identified the rule of law

applicable to petitioner’s case and there is no Supreme Court

14 case involving “materially indistinguishable facts” that is

contrary to the result the state court reached. Williams, 529

U.S. at 413. Moreover, the state court did not “unreasonably

appl[y] [the governing legal principle] to the facts of the

prisoner’s case.” Id. Consequently, this court is necessarily

precluded from granting relief under 28 U.S.C. § 2254. See

generally Packer, 123 S.Ct. at 364-66. See also McCambridge v .

Hall, 303 F.3d 2 4 , 35-37 (1st Cir. 2002).

In light of the foregoing, the State’s motion for summary

judgment (document n o . 11) is granted and the petition for

federal habeas corpus relief (document n o . 1 ) is denied. The

Clerk of Court shall enter judgment in accordance with this order

and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 9 , 2003

cc: Steven B . Gordon Susan P. McGinnis, Esq.