Opposition Brief — New Mexico Ex Rel. Ortiz v. Reed

No. 97-1217 ee |

In The

Supreme Court of the United States

October Term, 1997

STATE OF NEW MEXICO, EX REL. MANUEL ORTIZ,

Petitioner

TIMOTHY REED,

Respondent

On Petition For A Writ Of Certiorari

To The New Mexico Supreme Court

BRIEF IN OPPOSITION

StevAN DoucGias Looney

(Counsel of Record)

Criper, BINGHAM & Hurst, P.C.

3908 Carlisle Blvd., NE

Albuquerque, NM 87107

(505) 881-4545

COCKLE LAW BRIEF PRINTING CO), (800) 225

OR CALL COLLECT (402) 42-2831

aaa |

COUNTERSTATEMENT

OF THE QUESTION PRESENTED

Whether this Court should review a state court deci-

sion stemming from a habeas corpus challenge to extradi-

tion where the state court applied the cannons of

extradition law to a case presenting episodic, singularly

unique facts and where, accordingly, the decision cannot

be reasonably applied to other cases.

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE QUESTION

eee E Cad eee cccsencveceocsce i

a iii

COUNTERSTATEMENT OF THE CASE............ 1

REASONS FOR DENYING THE PETITION......... 6

I. Petitioner’s Reliance On Prior Decisions Of

This Court Is Misguided.................... 7

Il. Reed Cannot Now Receive Constitutionally

Mandated Due Process In Ohio............. 12

Ill. Petitioner's Claim That The Opinion Will

Cause Extradition Law To “Dissolve Into

Chaos” Is Alarmist And Too Speculative To

et cecees 14

EERE EET Pe 19

**e

TABLE OF AUTHORITIES

Page

Unirep States Supreme Court

California v. Superior Court of California, 482 US.

Gee Gd ckssrencneageblnnwhdessnhsiaesdehomicos 10

, £e 8 FS Ff eee 16

Goldberg v. Kelly, 397 U.S. 254 (1970)................ 11

Michigan v. Doran, 439 U.S. 282 (1978)........... passim

Morrissey, et al. v. Brewer, et al., 408 U.S. 471

DON a Nocesapusuudsdcoescedenss huee’ bt 10, 11, 12, 13

Pacileo v. Walker, 449 U.S. 86 (1980) ............... 9, 10

Puerto Rico v. Branstad, Governor of lowa, et al., 483

SP Ge MD na ceearccveyedsensdseerssecesp cannes 10

Sweeney v. Woodall, 344 U.S. 86 (1952)......... 9, 10, 12

Wainwright v. Syder, 433 U.S. 72 (1977).............. 16

State Courts

Bazaldua v. Hanrahan, 92 N.M. 596, 592 P.2d 512

Sees cheek veederasdsestadetnsspesses canavedeints 14

Commonwealth ex rel. Mattox v. Superintendent of

County Prison, 31 A.2d 576 (Pa. Super. Ct. 1943) .... 17

Hopper v. State ex rel. Schiff, 101 N.M. 71, 678 P.2d

Ge ES actenticdecoesctéuseeceducciurédedsanes 14

In Re Hampton, 13 Ohio Dec. 579 (Hamilton

Galles SOU ood cncveve ss éebedadhvedwaleat 17

State v. Sandoval, 95 N.M. 254, 620 P.2d 1279 (1980) .... 14

iV

TABLE OF AUTHORITIES — Continued

Page

Feperat Statutes AND Rutes

ORO SE 5 ko vdcdduccdducecennésecaseteass 12

i a le ak wee eee 17

BT eB get Ngan Sa SEE SS Sr sa ah ee i ge 17

State CONSTITUTIONS

New Mexico Constitution, Article I], §4............. 15

New Mexico Constitution, Article I], §18............ 15

Sratre STATUTES AND RutLes

New Mexico’s Uniform Extradition Act N.M.S.A.

GSR<O-0 60 BOG... occ cc cscvcccccecccccrveesescesoses +

Ohio Admin. Code §5120:1-1-18(F) ............... 12, 13

Ohio Admin. Code §5120:1-1-3h..... 2.2.66. 6.6 eee eee 13

a

ee

ee

COUNTERSTATEMENT OF THE CASE!

Respondent, Timothy “Little Rock” Reed (Reed), is

part Lakota Sioux. In September of 1982, when Reed was

twenty-one years old, he pleaded guilty to aggravated

robbery and theft of drugs in Ohio. Reed was sentenced

to two concurrent indeterminate terms of 7-25 years and

2-5 years imprisonment. The majority of this time was

spent at the Southern Ohio Correctional Facility in

Lucasville, Ohio. App 2

During his time at Lucasville, Reed maintained a

record of good conduct and acted as an advisor and

spokesperson for prisoners. He began writing about

Native American issues, including religious freedom in

prisons. His writings were distributed throughout the

United States and Canada in various forums. Reed

received national acclaim for his writings. App 2-3

In May 1992 Reed was released from the Ohio peni-

tentiary to serve a one-year parole term. During the time

he was on parole, he continued to write about Native

American rights and acted as an advisor and spokesper-

son for Native Americans. At the time of his parole Reed

had served more than the minimum term of his sentence.

On his release from Lucasville, Reed worked as director

' The Opinion of the New Mexico Supreme Court is

attached to the Petition for Writ of Certiorari as Appendix A.

The Opinion sets forth in great detail the facts of this case.

Respondent's counterstatement of the facts is presented to

summarize the facts contained in the Opinion and to address

misleading statements by Petitioner. Respondent's citations to

the facts are to the Opinion of the New Mexico Supreme Court

as set forth in Appendix A.

of the Native American Prisoners’ Rehabilitation

Research Project. He was also a full-time student working

on a bachelor of arts degree in criminal justice and Indian

affairs. App 5?

In September of 1992, Reed spoke at Ohio State Uni-

versity about the deprivation of religious expression for

Native Americans in the Ohio Department of Corrections.

The following week Reed’s parole officer, Ron Mitchell

(“Mitchell”) called Reed into his office. Mitchell told Reed

that the chief of the Ohio Adult Parole Authority had

called him (for the first time ever) and directed him to

order Reed not to travel and not to speak in public again

about the Ohio Department of Corrections or the parole

authority. Reed was told that he could no longer travel

and that if he continued to write and speak on these

topics his parole would be revoked and he would be

returned to the penitentiary. Reed stopped traveling and

curtailed his speech and writings as a result of this meet-

ing. App 6-7

In March of 1993, six weeks before his parole term

expired, Reed was involved in a minor accident with a

car loaned to him by a Dinah Devoto. Reed was given a

traffic citation and paid a small fine. This was Reed’s only

2? Reed maintained good conduct while in prison. While on

parole Reed continued to conduct himself in a lawful and

responsible manner, demonstrative of his good conduct and

rehabilitation. Reed is now 37 years old, works as a paralegal for

a prominent law firm in Albuquerque, New Mexico, is now

married and has a 4 month old son, Jasper. Reed and his wife are

actively involved in their traditional Native ceremonies anc the

Native Americ.n Church, and have established themselves as

respected community members in the state of New Mexico.

brush with the law during his parole. The incident

angered Mrs. Devoto’s husband, Steve, and he threatened

Reed over the telephone. Steve Devoto then filed a misde-

meanor complaint against Reed in Kentucky falsely alleg-

ing Reed threatened him. On March 18, 1993, Reed was

served with the summons and complaint. The following

morning, Reed called his parole officer, Mitchell, to

inform him of the charge. Dinah and Steve Devoto agreed

to meet with Mitchell and tell him the charge was false.

App 8-9

Mitchell refused to see the Devotos and told Reed to

report to his office the following Monday morning

because Reed was going back to Lucasville. Mitchell also

told Reed there would be no on-site preliminary hearing

and that he would have to see the parole board after he

was back in prison. No neutral parole officer or other

independent decision maker was involved in the decision

to revoke Reed’s parole. All of Reed's efforts to present

affidavits and other evidence that the charge was false,

including evidence from his accuser recanting the charge,

were rebuffed by Mitchell. App 9-11, 56-58

On March 22, 1993 Reed fled Ohio. Reed left Ohio

because his parole was revoked without a hearing and

because his life was in danger. App 8, 11-13, 14-16 Three

(3) weeks after Reed would have been returned to prison

had he been taken into custody, a riot occurred at the

prison in Lucasville. During the riot, hostages were taken

in a seige that lasted eleven days. Eight prisoners were

killed, including Dennis Weaver, who like Reed, was a

Native American writ writer and prisoners’ rights advo-

cate. App 12-13

Reed went to Taos, New Mexico, where he worked as

a paralegal and writer. App 14 On October 27, 1994, Reed

was arrested on the New Mexico Governor's warrant. On

November 1, 1994, Reed appeared in state district court

where he was granted leave to file a petition for writ of

habeas corpus. App 16 Among other things, Reed's peti-

tion contained allegations of prospective constitutional

violations and irreparable harm to him if he were

returned to Ohio and that he had been denied a parole

revocation hearing. App, Opinion, passim.

During this time Reed also petitioned both the gover-

nors of Ohio and New Mexico to investigate his case.

New Mexico Attorney General, Tom Udall, refused to

conduct an investigation, claiming the Governor had no

authority to investigate. New Mexico’s Uniform Extradi-

tion Act, N.M.S.A. §31-4-1, et seq., at §31-4-4 grants the

governor of New Mexico authority to investigate the

demand for extradition and whether grounds exist to

surrender the extraditee.

A hearing on Reed’s petition took place on three

separate days, over a period of one month. App 18 From

the date of his arrest on October 27, 1994 to the date of his

release on January 20, 1995, Reed was detained in the

Taos County jail without any probable cause determina-

tion he had violated parole. App 82-83

In the habeas corpus proceeding, Reed presented

uncontroverted and corroborated testimony that if he

were returned to Ohio: 1) he will likely suffer death or

great bodily harm at the hands of Ohio prison and/or

parole-authority officials before having access to the

courts of Ohio to (a) present his claims of constitutional

violations by such prison and parole authorities and (b)

to argue Ohio's lack of lawful jurisdiction over him; and

2) he did not and will not receive a hearing for an alleged

parole violation. Based upon proof of these claims, the

trial court granted Reed's petition for habeas corpus. App

19-20 The trial court found, inter alia, that Reed “had and

has a reasonable fear that, if returned to an Ohio prison,

he will suffer great bodily harm or injury” and concluded

Reed's fear is both “genuine and substantiated.” (R.P.

178-180) After a de novo review, the New Mexico Supreme

Court determined there was compelling evidence to sup-

port the trial court’s findings and decision to grant

habeas corpus. App, Majority Opinion, passim.

Petitioner's sole objection during the habeas corpus

proceeding was that Reed's evidence of past and prospec-

tive constitutional violations and irreparable harm was

inadmissible because it was not relevant under Michigan

v. Doran, 439 U.S. 282 (1978). Petitioner did not deny that

Ohio had failed to give Reed a probable cause hearing

prior to revoking his parole. Petitioner also refused to put

on any evidence or to refute any of Reed's evidence,

including evidence of prospective irreparable harm if he

were returned to Ohio. App 18-19

Petitioner now asserts that “[o]ver objections by the

State of New Mexico” Reed presented testimony from

himself and affidavits from Ohio prisoners and that the

Opinion is based only on Reed's testimony. Petition at 3-4.

This assertion is not true and places the record in a false

light. Petitioner attempts to mislead this court into con-

ciuding the only evidence was testimony from Reed and

Ohio prisoners — implying their testimony was not cred-

ible because of their status. The evidence was not limited

in the manner stated by Petitioner, but included docu-

mentary evidence and the testimony of several other

people having no criminal record, including Professor

Harold E. Pepinsky, a Harvard Law graduate and Pro-

fessor of Criminal Justice at Indiana University. App 11-12

In its Brief-in-Chief to the New Mexico Supreme

Court Petitioner admitted that the trial “court's findings

on the fugitivity question are supported by considerable,

although improper and irrelevant evidence.” App 23 Dur-

ing oral argument to the New Mexico Supreme Court,

Petitioner also admitted that New Mexico has authority

to deny extradition if this “considerable” evidence is true.

In that event, Petitioner, through Assistant Attorney Gen-

eral Anthony Tupler, stated “this was the case of a life-

time in a lawyer’s career . . . [and] I would not be

concerned to grant the relief.” Respondent's Appendix 1

Thus, Petitioner both admitted the evidence is consider-

able and advised the New Mexico Supreme Court it had

authority to deny extradition if it found the record sup-

ported the trial court’s decision to grant habeas corpus.

+

REASONS FOR DENYING THE PETITION

This case is rooted in singularly unique facts and

circumstances. In its Opinion the New Mexico Supreme

Court was emphatic that in the context of extradition law

this case is distinguished from all others by a unique fact

pattern that is supported by compelling evidence. App 2,

24, 52-53

It is precisely because of this unique fact pattern that

the Opinion provides no controlling or persuasive

authority and thus lacks any genuine precedential value

in our federal and state courts. Yet, in a frantic effort to

convince this Court it should grant certiorari, Petitioner

disingenuously undertakes to broaden the scope and

impact of this case and exalt it to the level of the har-

binger of the demise of the Extradition Clause. The argu-

ments Petitioner advances in this undertaking find no

support in the record and are wholly lacking in merit.

This case fails to satisfy any of the considerations of

Supreme Court Rule 10 and provides this Court with no

substantive or meaningful opportunity to address an

important federal question. Indeed, this Court has settled

the question addressed in the New Mexico Supreme

Court's Opinion (the Opinion), and the Opinion does not

conflict with the decisions of this Court, of a United

States court of appeals or other state courts of last resort.

For these reasons the petition should be denied.

I. Petitioner’s Reliance on Prior Decisions of This

Court Is Misguided.

Petitioner relies substantially on this Court's decision

in Michigan v. Doran, 439 U.S. 282 (1978), when urging

this Court to grant review. Petitioner asserts that the

Opinion is erroneous because the Majority engaged in a

broad inquiry into the fugitivity question, contrary to this

Court’s pronouncements in Doran. However, Petitioner's

reliance on Doran is misguided and unavailing.

Contrary to Petitioner’s assertions, Doran limits an

asylum state’s inquiry to the four factors urged by Peti-

tioner, only where the demanding state has made a judi-

cial determination of probable cause prior to issuance of

the extradition warrant. Doran at 289-290. In Doran, this

Court resolved that where a judicial determination of

probable cause has been made in the demanding state,

the asylum state’s courts are without power to review the

finding of probable cause. Doran, 439 U.S. at 290. How-

ever, “the asylum state need not grant extradition unless

that determination has been made. The demanding State,

of course, has the burden of so demonstrating.” Doran,

439 U.S. at 296 (Blackmun, J., concurring). In this case,

Petitioner failed to meet its burden and New Mexico need

not grant extradition.

Petitioner’s reliance on the presumed validity of the

governor’s warrant is also unavailing. The declaration in

Doran that a governor's grant of extradition is prima facie

evidence that the constitutional or statutory requirements

have been met, was premised on the fact that a prior

judicial determination of probable cause had been made

in the demanding state. In the instant case, no determina-

tion was made by Ohio, judicially or otherwise, that

probable cause existed to revoke Reed’s parole. Thus,

New Mexico did not review Ohio’s determination of

probable cause, because there was none, and, accordingly,

the New Mexico governor’s warrant was not cloaked

with a presumption of constitutional or statutory validity.

Nothing in Doran required New Mexico to grant extradi-

tion under these circumstances.

No decisions of this Court, including Doran, preclude

an asylum state from affording a habeas corpus petitioner

due process when the extradition request is based upon

an alleged parole violation where, as here, there has been

no determination prior to issuance of the extradition war-

rant that probable cause existed to revoke parole. Thus,

the cases relied upon by Petitioner, whether decided prior

to Doran, or for which Doran serves as their well-spring,

are inapplicable.

For example, in Sweeney v. Woodall, 344 U.S. 86 (1952)

the respondent alleged that prison conditions in Alabama

violated his Eighth Amendment right to be free from

cruel and unusual punishment. In the present case,

Ohio’s prison conditions are not at issue. Moreover, the

question in Sweeney was whether a federal district court

should entertain a fugitive’s application for writ of

habeas corpus after the asylum state court denied the

application. Sweeney, 344 U.S. 88-89. Here, New Mexico

state courts granted Reed’s petition and no further fed-

eral district court review was sought. Thus, the question

addressed ‘n Sweeney is not presented in this case and

Petitioner’s reliance on Sweeney is inapposite.*

Petitioner's reliance on Pacileo v. Walker, 449 U.S. 86

(1980) is likewise misguided. Pacileo, too, involved allega-

tions of unconstitutional prison conditions in the

3 Contrary to Petitioner’s contentions, Sweeney does not

preclude a court from taking evidence on the fugitivity

question. In fact, Sweeney implicitly, if not explicitly, permits a

broad-scope inquiry in extradition habeas corpus where, as

here, prospective irreparable injury is alleged. The respondent

in Sweeney, however, failed to prove he would suffer

prospective irreparable harm if he were returned to Alabama. In

the instant case, Reed alleged and proved that he had been

denied a preliminary probable cause hearing and that no relief

would be available to him in Ohio prior to the time he would

suffer irreparable harm in Ohio. Furthermore, Petitioner

advised the New Mexico Supreme Court that under these

circumstances New Mexico had authority to grant Reed's

petition for a writ of habeas corpus. Respondent's App. 1

10

demanding state and is as inapplicable to the instant

matter as is Sweeney. In Pacileo the Supreme Court of

California remanded the case to a lower court directing

that there be a hearing to determine whether the condi-

tions of the Arkansas prison conformed to Eighth

Amendment requirements. In Pacileo this Court agreed

with Petitioner that the asylum state had no authority to

inquire into the prison conditions of the demanding state.

Pacileo, 449 U.S. at 87. No such inquiry was made in the

present case. Similarly, New Mexico made no inquiry into

Reed’s guilt or innocence or the merits of the alleged

parole violation. Thus, Petitioner’s reliance on this

Court’s pronouncements in California v. Superior Court of

California, 482 U.S. 400 (1987) and Puerto Rico v. Branstad,

Governor of Iowa, et al., 483 U.S 219 (1987) is equally

unavailing.

It is well-established that before Reed's parole could

be revoked, he was entitled to an initial due process

hearing by an independent decision maker, i.e., someone

other than Reed's parole officer, to determine if probable

cause existed to revoke his parole. Morrissey, et al. v.

Brewer, et al., 408 U.S. 471, 485-486 (1972) Ohio never held

the preliminary, or “on-site” hearing required by Mor-

rissey. If for no other reason than this, Reed’s petition for

a writ of habeas corpus was properly granted.

Petitioner asserts that unless this Court grants

review, the opinion will lead to an expansion by the

asylum state into a demanding state’s motives for seeking

extradition. This assertion is spurious at best. For exam-

ple, in Morrissey this court noted that it is unnecessary to

impugn motives in order to support the need for, and

right to, an independent decision maker's involvement in

a = -

11

the decision to revoke parole. Morrissey, 408 U.S. at 486,

citing Goldberg v. Kelly, 397 U.S. 254 (1970). Petitioner's

attempt to claim Reed’s release was based purely upon a

challenge to Ohio’s motives is an inartful attempt to

divert the Court’s attention from the fact that, under

Morrissey, Ohio’s motives are inconsequential and, that

because Ohio made no determination of probable cause

before the extradition warrant was issued, Doran and its

progeny are inapplicable.

The Ohio extradition warrant was founded on an

alleged parole violation stemming from a misdemeanor

charge that the accuser attempted to withdraw prior to

the date Reed was told to report to be returned to prison,

just six weeks before his parole expired.* In this case,

Ohio’s extradition warrant was not supported by any

determination, judicial or otherwise, that probable cause

existed to revoke Reed’s parole. Consequently, New Mex-

ico did not review such a determination. And, unlike the

Governor of Michigan in Doran, the Governor of New

Mexico did not act on a requisition for extradition that

was supported by the demanding state’s judicial deter-

mination of probable cause. Accordingly, Doran and its

progeny are wholly inapplicable to this case.

4 Petitioner implies that Reed would not have been granted

final release because his parole was for a period of not less than

one year. Petition at 3-4. Petitioner cannot state in good faith

that Reed would not have been released, as that claim would be

contrary to the evidence, the record and Ohio’s practice of

routinely granting release at the expiration of the releasee’s one-

year term.

12

II. Reed Cannot Now Receive Constitutionally Manda-

ted Due Process In Ohio.

In this case, there was “considerable” and compelling

evidence that Ohio failed and refused to provide Reed the

“on-site” probable cause hearing required by this Court

in Morrissey. In fact, Reed was told that the probable

cause hearing required by Morrissey would not occur. App

60 Thus, reg.” “iess of Ohio’s motives, Reed’s due process

rights as guaranteed by the Fourth Amendment were

violated by Ohio. Hence, the requirements of 28 U.S.C.

§2241(c) regulating the use of habeas corpus are also met

in this case, since Reed’s continued custody was “in

violation of the Constitution” of the United States. 28

U.S.C. 2241(c)(3). Consequently, New Mexico was not

obliged to extradite Reed. Doran, 436 U.S. at 296 (Black-

mun, J., concurring).

Petitioner’s claim that Justice Pamela Minzner erred

in her concurring opinion by concluding Reed was enti-

tled to release on habeas corpus because his due process

rights had been violated, is disposed of by the points

raised above regarding the requirements of Morrissey and

the inapplicability of Sweeney, Doran and Doran's progeny.

Nevertheless, in a footnote, Petitioner belatedly relies on

Ohio Admin. Code §5120:1-1-18(F) and claims the Mor-

rissey preliminary hearing is required under Ohio law

only after a parolee is returned to Ohio. Petition at 10-11.

There are numerous problems with this claim, but it can

be disposed of by focusing on only one.

Ohio Admin. Code 5120:1-1-18(F) provides that

“When a detainer is placed against a releasee arrested or

held in custody outside of the state of Ohio the [on-site

13

hearing procedures] shall not apply until the releasee is

returned to custody within the state of Ohio.” (Emphasis

added) The procedures for filing a “detainer” as that term

is used in §5120:1-1-18(F) are set forth in §5120:1-1-31. In

the case of a releasee not in the custody of Ohio, a

detainer must be filed on form 938-2. Ohio Admin. Code

§5120:1-1-31(A) & (C)(2) The issuance of a detainer

against Reed was a condition precedent to any right, or

duty, Ohio had to conduct the on-site hearing if Reed

were returned to Ohio. However, Petitioner presented no

evidence at any time that a detainer had been issued on

form 938-2 or in any other manner. Accordingly, Peti-

tioner failed in its burden of proof and did not preserve

this claim for review in the New Mexico Super © vaurt

or in this Court. Furthermore, conducting ~~ on-site

probable cause hearing at any time after Reed’s release on

January 20, 1995, would not satisfy the requirement of a

prompt hearing established in Morrissey. Morrissey, 408

U.S. at 485.

Justice Minzner’s thoughtful concurring opinion

affords an independent basis for affirming the trial

court’s grant of habeas corpus to Reed. Petitioner’s claim

that this Court should grant certiorari because of the

Majority’s claimed error in employing a broad-scope

inquiry is not only wrong under the unique facts of this

case; it is rendered immaterial by the existence of an

independent basis for granting Reed's petition for writ of

habeas corpus for the reasons articulated by Justice Min-

zner.

14

Ill. Petitioner’s Claim That The Opinion Will Cause

Extradition Law To “Dissolve Into Chaos” Is

Alarmist And Too Speculative To Warrant Review.

In the context of extradition habeas corpus, the lead-

ing cases in New Mexico demonstrate that New Mexico

is, and continues to be, in agreement with relevant deci-

sions of this Court, as well as federal and state courts.

See, e.g., Bazaldua v. Hanrahan, 92 N.M. 596, 592 P.2d 512

(1979) (Court’s of New Mexico are bound to follow a

demanding state’s judicial determination of probable

cause); Hopper v. State ex rel. Schiff, 101 N.M. 71, 678 P.2d

699 (1984) (New Mexico courts are without authority to

go behind charging documents to determine if demand-

ing state acted lawfully under its laws); State v. Sandoval,

95 N.M. 254, 620 P.2d 1279 (1980) (New Mexico courts are

without authority to inquire into demanding state’s

charges.) However, what distinguishes the instant case

from all others is its unique facts, coupled with Reed's

proof of those facts. Accordingly, the Opinion is not a

departure from the vast and well-settled body of law on

extradition habeas corpus. Rather, it is a thoughtful appli-

cation of the law, to the compelling, yet unique, facts of

this case.

In the instant case, the New Mexico Supreme Court

“closely studied and sought guidance from the many

judicial opinions and accepted cannons of extradition

law.” App 53 In that effort, the New Mexico Supreme

Court carefully applied the Extradition Clause and its

implementing federal and state statutes, weighing them

in the balance, in the context of the unique facts of this

case, with the due process clause of the United States

a —ro

15

Constitution, the New Mexico Constitution and the pur-

poses and procedures available under the “Great Writ” of

Habeas Corpus.

Contrary to Petitioner's assertions, New Mexico did

not litigate the merits of Reed’s alleged parole violation;

it litigated the merits of Reed’s entitlement, or not, to a

writ of habeas corpus. Nor did the New Mexico Supreme

Court base its Opinion solely on the New Mexico Consti-

tution or a duress defense as urged by Petitioner. Like the

duress or necessity defense, the due process clause and

Inherent Rights Amendment of the New Mexico Constitu-

tion, Article II, §§18 and 4 respectively, were simply

subsidiary and additional levels of analysis supporting

the Opinion. The primary and operative reasons for the

Majority’s Opinion are derived “from many judicial opin-

ions and accepted cannons of extradition law”, as applied

to the unique circumstances of Reed’s case. App at 53

This case is not properly analyzed under the Extradi-

tion Clause in the narrow and mechanical manner urged

by Petitioner; rather it is properly viewed from the stand-

point of the purpose of habeas corpus. Ascertaining the

facts to determine whether a habeas corpus petitioner is

entitled to relief is necessarily the proper function of the

judiciary. If it were otherwise, as urged by Petitioner, the

rights and procedures available to a habeas corpus peti-

tioner would be rendered empty and meaningless.

Extradition habeas corpus pits the state against the

individual. The conflict is between institutional demands

of extradition and federalism and the importance of

securing to individuals the guarantees embodied in the

16

Fourteenth Amendment. Under the novel facts of Reed's

case, the New Mexico Supreme Court resolved the con-

flict in favor of the individual. This is not only appropri-

ate, it is the very function of the Great Writ. As this Court

has so eloquently said:

Although in form the Great Writ is simply a

mode of procedure, its history is inextricably

intertwined with the growth of fundamental

rights of liberty. For its function has been to

provide a prompt and efficacious remedy for

whatever society deems to be intolerable

restraints. Its root principle is that in a civilized

society government must always be accountable

to the judiciary for a man’s imprisonment: if the

imprisonment cannot be shown to conform with

the fundamental requirements of law, the indi-

vidual is entitled to his immediate release. Thus

there is nothing novel in the fact that today

habeas corpus . . . provides a mode for the

redress of denials of due process of law. Vin-

dication of due process is precisely its historic

office. Id at 401-402.

Faye v. Noia, 372 U.S. 391, 402 (1963) reversed on other

grounds, Wainwright v. Syder, 433 U.S. 72, 87-90 (1977)

In the trial court Petitioner knowingly chose to rely

on a narrow approach to the habeas corpus action and

argued for a strict application of the Doran elements to

this case, eschewing altogether the “historic office” of

habeas corpus and ignoring New Mexico's rules of evi-

dence.5 In a habeas corpus action, New Mexico's rules of

5 Petitioner elected its strategy and failed. In the trial court,

Petitioner did not attempt to rebut any evidence, even evidence

17

evidence permit the trial court to take documentary evi-

dence, including affidavits. App 22 This is consistent with

federal habeas corpus law which provides that affidavits

and documentary evidence are admissible. See, 28 U.S.C.

§§2246 and 2247. New Mexico was not only permitted, it

was required, to make factual determinations relative to

whether Reed was entitled to release from custody, or

whether he should be returned to Ohio.

There have been but a few cases where, as here, habeas

corpus was granted and extradition was denied. See, e.g.,

Commonwealth ex rel. Mattox v. Superintendent of County

Prison, 31 A.2d 576 (Pa. Super. Ct. 1943) (Extradition denied

based upon showing by competent evidence that demanding

state would not protect defendant from lynching.); In Re

Hampton, 13 Ohio Dec. 579 (Hamilton County C.P., 1985)

(Refusal to extradite in order to protect defendant from

lynching, where previous extradition ended in a lynching.)

This case presents one of those rare cases. Just as in these

few cases, granting habeas corpus did not portend the end of

the Extradition Clause, the Opinion, too, does not sound the

death knell for extradition law. Petitioner’s claims to the

that would not require any participation from Ohio authorities.

App 23-24 Petitioner also failed to preserve evidentiary issues

for appeal to the New Mexico Supreme Court, such as, for

example, providing proof of the existence of an Ohio “detainer”.

Moreover, Reed’s witnesses testified telephonically, and Ohio

had ample opportunity throughout the proceedings to refute

Reed’s evidence in the same manner. Thus, contrary to

Petitioner's assertions, Ohio’s participation in the proceedings

would not have been unduly burdonsome and expensive, nor

was their actual presence required.

18

contrary are incredulous. Indeed, New Mexico's extradition

process continues unabated.

Petitioner inartfully ignores the unique circum-

stances of this case, something the New Mexico Supreme

Court repeatedly emphasized as central to its Opinion,

and urges this Court to believe that because of the Opin-

ion the extradition process will “dissolve into chaos” and

that granting habeas corpus to alleged parole violators

will be a common recurrence. Essentially, Petitioner

argues that, like Ohio, other states will fail to provide an

alleged parole violator with constitutionally required due

process prior to revoking parole, thus leading to release

pursuant to extradition habeas corpus becoming the rule,

rather than the exception. This suggestion is too tenuous

and speculative to merit this Court's review.

Viewing this case as it did, de novo, on its unique

(“once in a lifetime”) facts, the New Mexico Supreme

Court fulfilled its responsibility to the broader purposes

of the United States Constitution, in light of “the many

judicial opinions and accepted cannons of extradition

law”, thus ensuring and preserving Reed’s due process

rights. Petitioner seeks to strip the “Great Writ” of

Habeas Corpus of its historic office and to raise the

Extradition Clause to an exalted status not shared by any

other singular Article or provision of the United States

Constitution. Indeed, Petitioner seeks to relegate equally

important, if not more important, provisions of the

United States Constitution to the status of mere after-

thoughts, bereft of any import or purpose. This Court

should decline Petitioner’s invitation to join in its cam-

paign and conjectures and deny the Petition.

¢

19

CONCLUSION

Accordingly, for all the foregoing reasons, Peti-

tioner’s petition for writ of certiorari should be denied.

Respectfully submitted,

Criper, BINGHAM & Hurst, P.C.

StevAN Douctas Looney

3908 Carlisle Blvd., NE

Albuquerque, NM 87107

(505) 881-4545

App. 1

Appendix 1

Excerpts of the Oral Argument Before the New

Mexico Supreme Court on February 13, 1996 in

the Matter of Timothy Reed v. State of New

Mexico ex rel. Manuel Ortiz

Justice Richard Ransom: Mr. Tupler, on the duress - I’m

just asking you hypothetically — I’m not asking you to

accept my hypothesis: but if the trial court in New Mex-

ico had found on adequate evidence reason to believe the

Ohio court would grant relief under habeas corpus and if

the New Mexico court also found that it was unreason-

able to expect that he could avail himself of the safety of

the Ohio courts before suffering death or, or physical -

serious physical injury, do you think then that the New

Mexico court could grant the habeas corpus basically on

the grounds that he would not have access to the Ohio

courts before irreparable damage were done?

Mr. Anthony Tupler: Assuming - and I’m sure you

know how difficult it is for me even to go that far - but

assuming that that were true this, that could be the kind

of extraordinary case which would allow, which would

perhaps demonstrate Ms. Garlin’s point, this was the case

of a lifetime in a lawyer’s career, — if it were that bad on

that assumption I would have no difficulty that the court

might as a matter of its inherent discretion — I’m not sure

how consistent it would be with the constitutional pre-

cepts and the underlying position, but if it would satisfy

those two factors I would not be concerned to grant the

relief.