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Laverty v. State (9/4/98) ap-1603
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
e-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICKY L. LAVERTY, )
) Court of Appeals No. A-6892
Appellant, ) Trial Court No. 3PA-97-1064CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1603 - September 4, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Mary Deaver, Assistant Public
Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Roman J. Kalytiak, Assistant District Attorney,
Kenneth J. Goldman, District Attorney, Palmer, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
In December of 1995, Ricky L. Laverty was charged in
Alaska with being a fugitive from justice from the State of Texas.
The State of Texas sought to extradite Laverty for violating his
conditions of probation on a conviction for driving while
intoxicated. Laverty was taken into custody. District Court Judge
Stephanie Joannides found that the extradition request was
deficient because the State of Texas did not support its request by
establishing either the conditions of Laverty's probation or how
Laverty had violated those probation conditions. On May 20, 1996,
Judge Joannides granted Laverty's application for habeas corpus
because the State of Texas had failed to cure these defects. At
the time he was released, Laverty had spent one hundred and sixty-
five days in custody on the fugitive warrant.
On September 21, 1997, Laverty was arrested and charged
with driving while intoxicated in Alaska. The state also charged
Laverty with being a fugitive from justice from the State of Texas
based on the original warrant upon which he had been arrested in
December of 1995. The State of Texas filed new documentation
requesting Laverty's extradition which included a copy of Laverty's
probation conditions and a sworn statement of his probation officer
which set out Laverty's alleged probation violations. Magistrate
David Zwink remanded Laverty on the fugitive warrant and Laverty
filed a writ of habeas corpus. In the writ Laverty claimed that
his extradition should be barred because he had prevailed on his
original writ of habeas corpus which Judge Joannides had granted on
May 20, 1996. He argued that his extradition was barred by the
double jeopardy clause of the Fifth Amendment to the United States
Constitution and by the doctrine of collateral estoppel. He also
contended that it was fundamentally unfair to subject him to an
extended period of incarceration since he had been held without
bail one hundred and sixty-five days, in violation of AS 12.70.140
and AS 12.70.160, while the first extradition attempt was
litigated. Superior Court Judge Eric Smith rejected Laverty's
contentions. Laverty now appeals to this court. We affirm.
The extradition of fugitives between states is governed
by article IV, sec. 2, cl. 2 of the United States Constitution,
which
provides:
A person charged in any state with
treason, felony, or other crime, who shall flee from justice, and
be found in another state, shall on demand of the executive
authority of the state from which he fled, be delivered up, to be
removed to the state having jurisdiction of the crime.
Since extradition is governed by federal law, Alaska is bound by
federal requirements under the supremacy clause, article VI, of the
United States Constitution. [Fn. 1] "Under the federal
constitution and statutes relating to extradition, the obligation
of the state to extradite a person arises upon demand by the chief
executive of the demanding state which shows that the person is
charged with a crime there and is a fugitive from justice." [Fn. 2]
Therefore, the scope of inquiry in a habeas corpus - extradition
matter is limited.
In Michigan v. Doran, [Fn. 3] the United States Supreme
Court held that, in an extradition procedure, courts of an asylum
state may only consider the following questions in a habeas corpus
action: (1) whether the extradition documents on their face are in
order; (2) whether the petitioner has been charged with a crime in
the demanding state; (3) whether the petitioner is the person named
in the request for extradition; and (4) whether the petitioner is
a fugitive. [Fn. 4]
In Hooker v. Klein, the court described the extradition
procedure as follows:
The function of an extraditing court is not to
decide the guilt or innocence of the fugitive at law, but rather to
determine whether there is "competent legal evidence which . . .
would justify his apprehension and commitment for trial if the
crime had been committed in [the forum] state." . . . A finding of
extradition signals the start, rather than the conclusion, of
litigation of the fugitive's guilt or innocence. As opposed to a
final judgment, it is truly an interlocutory order, more akin to a
preliminary hearing on criminal charges. And in that area of law,
it is well settled that a finding of lack of probable cause does
not bar the state from rearresting the suspect on the same
charges.[ [Fn. 5]]
Collateral estoppel precludes relitigation of an issue
that has been decided in previous litigation. [Fn. 6] In order for
collateral estoppel to bar a subsequent proceeding, three
requirements must be met: (1) the issue decided in the prior
litigation must have been precisely the same as that presented in
the subsequent litigation; (2) the prior litigation must have
resulted in a final judgment resolving the merits of the issue; and
(3) there must be "mutuality" between the parties involved in the
actions. Judge Joannides' judgment granting Laverty's application
for habeas corpus was merely based on the deficiency in the State
of Texas' extradition request. Similar to the situation presented
to the Ninth Circuit in Hooker, Judge Joannides' ruling was an
interlocutory order, as opposed to a final judgment. [Fn. 7] The
doctrine of collateral estoppel did not bar the subsequent action.
[Fn. 8]
A defendant's Fifth Amendment double jeopardy rights
apply only when the defendant has been tried on the merits on a
criminal charge. [Fn. 9] Since Laverty was never tried on the
merits of his case, the double jeopardy clause did not bar the
subsequent extradition proceedings.
Finally, Laverty argues that it is fundamentally unfair
to subject him to an extended period of incarceration since he was
held without bail for five and one-half months while the first
extradition attempt was litigated, in violation of the Uniform
Criminal Extradition Act, set out in AS 12.70. Laverty contends
that this illegal detention, in addition to Texas' failure to
perfect the first extradition packet, constitutes a waiver of the
right to extradite him.
Laverty cites no authority in support of his argument and
we are aware of none. Where a demanding governor's warrant has
been properly issued and served, the asylum state's governor has no
discretion to refuse the lawful request of the governor of the
demanding state for extradition of a fugitive from justice. [Fn.
10] Alaska Statutes 12.70.140 and 12.70.160 allow the state to
commit a fugitive to jail for up to ninety days pending the
issuance of a governor's warrant. Once the statutory time period
had expired, Laverty was entitled to be released from custody. [Fn.
11] But the statutes do not preclude extradition. Indeed, such a
preclusion would be contrary to Michigan v. Doran. [Fn. 12]
The order of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Kostic v. Smedley, 522 P.2d 535, 536 n.5 (Alaska 1974).
Footnote 2:
Id. at 538.
Footnote 3:
439 U.S. 282, 289 (1978).
Footnote 4:
See also Ford v. Moses, 606 P.2d 795, 796-97 n.2 (Alaska
1980); Kostic, 522 P.2d at 538.
Footnote 5:
573 F.2d 1360, 1367 (9th Cir. 1978) (citations and footnotes
omitted). The quoted language is from Collins v. Loisel, 259 U.S.
309, 315 (1922).
Footnote 6:
State v. Williams, 855 P.2d 1337, 1342 (Alaska App. 1993).
Footnote 7:
See Hooker, 573 F.2d at 1367.
Footnote 8:
Courts in other states have similarly held that a procedural
defect or a governmental delay in prosecuting a first extradition
proceeding does not bar a subsequent extradition proceeding. See
State v. Iowa Dist. Ct. for Winneshiek County, 500 N.W.2d 51 (Iowa
1993) (dismissal of prior extradition proceeding for lack of
prosecution did not bar a subsequent extradition proceeding based
on sufficient process under either res judicata or double jeopardy
because no judgment on the merits was rendered); Garcia v. Cooper,
711 P.2d 1255 (Colo. 1986) (state not precluded from filing second
extradition proceeding after first extradition proceeding dismissed
due to requesting state's failure to complete the necessary
documents within the statutory time period; first dismissal not an
adjudication on the merits); People ex rel. Harris v. Mahoney, 198
A.D.2d 466 (N.Y. App. Div. 1993) (previous dismissal of habeas
corpus proceeding, after governor's warrant of extradition
recalled, did not determine any issues on the merits and did not
bar subsequent extradition proceedings); State v. Van Buskirk, 527
N.W.2d 922 (S.D. 1995) (dismissal of extradition proceedings due to
requesting state's failure to correct errors in documentation did
not bar subsequent extradition proceedings; initial proceedings
were dismissed before any issues necessary for extradition were
considered or determined).
Other courts have held that even a judgment on the merits
in a first extradition proceeding does not a bar a subsequent
extradition proceeding. See Ex parte McClintick, 945 S.W.2d 188
(Tex. App. 1997) (holding that a first extradition proceeding
cannot act as res judicata to subsequent proceedings); People ex
rel. Schank v. Gerace, 231 A.D.2d 380 (N.Y. App. Div. 1997)
(holding that a prior granting of habeas corpus relief in an
extradition proceeding will not bar a subsequent extradition
proceeding founded on new process or preclude reappraisal of any
factual or legal issues previously determined); Castriotta v.
State, 888 P.2d 927 (Nev. 1995) (holding that a habeas proceeding
contesting extradition is not res judicata as to subsequent
proceedings so that one state's denial of an extradition request
does not bar subsequent extradition by another state based on the
same papers); Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978)
(holding that a court evaluating the legitimacy of a request for
extradition does not look at the merits of the underlying case;
therefore, a first extradition proceeding will not bar a second
proceeding).
Footnote 9:
Serfass v. United States, 420 U.S. 377, 388 (1975); Collins
v. Loisel, 262 U.S. 426, 429 (1923).
Footnote 10:
Puerto Rico v. Branstad, 483 U.S. 219, 225-27 (1987).
Footnote 11:
See AS 12.70.140 and AS 12.70.160.
Footnote 12:
439 U.S. 282, 289 (1978).
