Habeas Corpus - Something Like a Phenomenon

I have noticed this phenomenon before.  And, despite the title, I am not referring to an LL Cool J song.  Rather, what I have noticed is that when an unusual issue pops up in one case, it is certain to pop up again soon afterward.

In this week's Weekly Review, I pointed out that an extradition issue popped up in Nguyen v. Ercole, 05-CV-0855, 2009 U.S. Dist. LEXIS 110331 (WDNY Nov. 25, 2009) (MAT), and I had never seen that type of issue before.

I should have known that, because I singled this issue out, it would come up again.  And, Presto!, it did today, albeit not exactly in the same way as it did in Nguyen.

In Nguyen, the issue concerned the petitioner's extradition to the U.S.

In Sacirbey v. Guccione, 06-5137, opinion here, the issue concerns the petitioner's extradition to another country.  While it was a habeas petition challenging federal custody (so slightly outside the typical subject matter of this blog), the issue is certainly close enough to fall into the phenomenon.

And if I thought the issue in Nguyen was unusual, here's how the author of Sacirbey, Judge Cabranes, describes the issue in that case:

    In this appeal we consider whether an arrest warrant issued by a foreign court that no longer has jurisdiction over the accused, nor the power to enforce the warrant, can provide an adequate basis for the extradition of a United States citizen. This is a question of first impression—and the fact that this issue has not been previously decided should not be surprising. It is a rare circumstance where the very document that provides the basis for an extradition request turns out to have been issued by an entity that no longer has lawful authority over the matter. While the factual and procedural history of this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been “charged” with a crime and requires that an arrest warrant and supporting materials be provided in order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the treaty that an individual be “charged” with an extraditable offense has not been satisfied. This defect falls within the narrow category of issues that is cognizable on habeas review of an extradition order; we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.

Judge Leval joined the opinion and Judge Kearse dissented.