Extradition

The extradition clause affords no discretion to the executive officers or courts of the asylum state, but, rather, creates a mandatory duty to deliver up fugitives on proper demand. Puerto Rico v. Branstad, 483 U.S. 219, 226, 107 S. Ct. 2802, 97 L. Ed. 2d 187 (1987).

Writ of Habeas Corpus

Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 534–535, 58 L. Ed. 2d 521 (1978); California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987))

Under PC1550.1: "If the accused or his counsel desires to test the legality of the arrest, the magistrate shall remand the accused to custody, and fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus."

According to CEB book, section 50.38, "If the fugitive wishes to challenge extradition by way of habeas corpus, the court must allow a 'reasonable time' within which to file the petition, and the actual surrender of the fugitive to the demanding state's agents must be stayed during that period. People v. Superior Court (Lopez) 1982) 130 Cal.App. 33d 776, 786. Typically, California courts allow about 10 days within which to file the petition. The fugitive must remain in custody during the period the habeas corpus attack on the Governor's warrant is pending. Pen Code 1550.1"

Also, under PC1550.1, "the person named in the warrant shall be held in custody at all times, and shall not be eligible for release on bail."

"Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." (Michigan v. Doran (1978) 439 U.S. 282, 289.)

Michigan v. Doran is a detailed explanation of the United States Constitution, Article IV, section 2, the Extradition Clause, which mandates that states extradite.

California courts have quoted Michigan v. Doran in deciding habeas corpus on extradition cases in California. (People v. Superior Court (Lopez)) (1982) 130 Cal.App.3d 776, 783.)

Penal Code 1553.2 makes it clear: "The guilt or innocence of the accused as to the crime with which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by the charge of crime in legal form as above provided has been presented to the Governor, except as such inquiry may be involved in identifying the person held as the person charged with the crime."

A factual inquiry cannot be done. (California v. Superior Court (Smolin) (1987) 482 U.S. 400.)

Defenses cannot be raised. (Pacileo v. Walker (1980) 440 U.S. 86.)

Under the federal Violence Against Women Act, 18 USC 2265, family orders from out-of-state have full faith and credit across all states. California formally adopts the Full Faith and Credit provisions in California Family Code 6402. An ex parte order/TRO in which the respondent has not yet had an opportunity to respond could not be subject to Full Faith and Credit for the lack of notice and due process. In any case, these all seems to be issues better addressed on habeas corpus.

Pen. Code, §§ 1473 et seq., 1550.1. California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987). In re Golden, 65 Cal. App. 3d 789, 135 Cal. Rptr. 512 (3d Dist. 1977).

Once the Governor's warrant is issued and served, the fugitive must be taken into custody, and immediately taken before a magistrate and arraigned (Pen. Code, § 1550.1). The defendant, at this point, has the right to challenge the validity of the warrant by seeking a writ of habeas corpus (Pen. Code, § 1550.1). Bail, or other conditional release from custody, is expressly precluded after service of the Governor's warrant (Pen. Code, § 1550.1). Stay of extradition: If the defendant challenges the extradition by a writ of habeas corpus, the court must allow a “reasonable time” within which to file a habeas corpus petition. The surrender of the defendant to the demanding state must be stayed during that period (Pen. Code, § 1550.1). Issues that may be raised: Only four issues may be raised on habeas corpus to challenge a fugitive's extradition: (1) whether the accused is the same person named in the Governor's warrant; (2) whether the accused was in the demanding state at the time of the offense (Pen. Code, § 1549.1); (3) whether the person is charged with or convicted of a crime in the demanding state; and (4) whether the extradition documents on their face are in order (Pen. Code, § 1550.1; California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987)). Issues that may not be raised: Issues that may not be raised are: (1) questions of guilt or innocence (Pen. Code, § 1553.2); (2) going behind an extradition request to determine whether the charging documents in the demanding state can be dismissed for any reason (California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 410–411, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987)); (3) no substantive defense to the crime may be raised (Pacileo v. Walker, 449 U.S. 86, 101 S. Ct. 308, 66 L. Ed. 2d 304 (1980)); and (4) no constitutional violations may be litigated in the asylum state (Price v. Pitchess, 556 F.2d 926 (9th Cir. 1977)). Burden of proof: There is authority for the proposition that petitioner must prove “beyond a reasonable doubt” that he or she is not the person named in the extradition warrant or is not a fugitive from justice (State of South Carolina v. Bailey, 289 U.S. 412, 422, 53 S. Ct. 667, 77 L. Ed. 1292 (1933)). However, other courts have stated that although the evidence upon the question whether the prisoner was absent or present in the demanding state when the crime charged against him was committed is conflicting, if, nevertheless, the court is convinced from the whole record that the fact that he is a fugitive from justice has not been satisfactorily shown, the prisoner will be discharged. (Ex parte Shoemaker, 25 Cal. App. 551, 559–560, 144 P. 985 (3d Dist. 1914), citing People ex rel. Genna v. McLaughlin, 145 A.D. 513, 130 N.Y.S. 458, 464 (2d Dep't 1911)). The burden of proof is clearly on the state to establish an extraditable offense, although its burden is slight. (See Com. v. Valentin, 448 Pa. Super. 519, 523–524, 672 A.2d 338 (1996) (“The burden of proof is a minimal one, since the asylum forum is not permitted to inquire into the guilt of the defendant, and alibi is such a determination. Therefore, where there is evidence presented that defendant was present in the demanding state, which evidence may be believed by the ultimate factfinder, the asylum state must extradite.”).) Challenge not admissible: The fact the defendant exercised his right to challenge the extradition is not relevant evidence at trial in the receiving state. It constitutes a “violation of procedural due process” to admit evidence regarding the defendant's exercise of his extradition rights in another state (People v. Sutton, 19 Cal. App. 4th 795, 23 Cal. Rptr. 2d 632 (3d Dist. 1993)).