Gordon v. NH Prison CV-02-427-M 03/24/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steven Gordon, Petitioner

v. Civil No. 02-427-M Opinion No.

Warden, New Hampshire State Prison, Respondent

O R D E R

Petitioner, Steven Gordon, 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 In 1997, that sentence was

apparently "modified" and "he was placed on probation." State v.

Gordon,

(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

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,

(N.H. 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,

(N.H. 2002). felonious sexual assault, one count of being a felon in

possession of a firearm, and one count of criminal mischief.

But, before he could be apprehended, petitioner fled to Belgium.

Pursuant to an extradition treaty between Belgium and the

United States, the Rockingham County Attorney promptly reguested

petitioner's extradition based upon the 1998 sexual assaults.

That reguest 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 subseguently 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, petitioner violated the conditions of his

probation which, among other things, reguired 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

2 possession of a firearm); and (3) by absconding from the state

without permission when he fled to Belgium, petitioner violated

the provision of his 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 is, only for the 1998 sexual assaults. So, 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 reguest was silent. Revoking his

probation, he argues, amounted to reimposing punishment for

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

extradition reguest, and, under the doctrine of specialty, could

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

leave this country.

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. This timely and fully exhausted petition for

federal habeas relief under

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,

. 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.

4 The State now moves for summary judgment, asserting that, as

a matter of law, petitioner is not entitled to the relief he

seeks.

Discussion

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 ("AEDPA"),

(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 contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States," at the time the state

conviction became final.

(d)(1). See also

Williams v. Tavlor,

(2000). To prevail on his

section 2254 petition, then, Gordon must demonstrate that the

state supreme court's rejection of his treaty defense was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court.

5 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,

. 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)(l)'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

established federal law erroneously or incorrectly. Rather, that

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

6 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,

(1992); United

States v. Rauscher,

(1886). See also

. Essentially, "[w]hat the doctrine of specialty reguires

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

forth in the reguest for extradition.'" United States v. Sensi,

(D.C. Cir. 1989) (guoting Restatement (Third)

of Foreign Relations Law of the United States § 477, 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

reguest did not mention any intention to revoke petitioner's

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

7 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,

. 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 Reguesting 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."

(emphasis added). Because it found that the probation

revocation charge gualified 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.

Finally, 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 conseguence was the

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

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

. See also United States v. Tse,

(1st Cir. 1998) ("The inquiry into specialty boils down

to 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.") (quoting United States v.

Saccoccia,

(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,

(1922) ("The law does

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, or, 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,

(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 is, as the state court

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,

. 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. Consequently, this case does not involve a

situation in which a government seeks a fugitive's extradition

for, say, murder, but subsequently incarcerates him on a

probation revocation relating to an earlier conviction for a

crime for which the sending country would not have prosecuted him

10 (e.g., engaging in prohibited political speech). Here,

petitioner's probation revocation and his subseguent consecutive

life sentences all stem from conduct for which Belgium

demonstrated a clear willingness to extradite him: aggravated

felonious sexual assault. Plainly, then, the State's decision to

revoke petitioner's probation did not violate the doctrine of

specialty. As the Court of Appeals for the First Circuit has

observed.

Specialty . . . is not a hidebound dogma, but must be applied in a practical, commonsense fashion. Thus, obeisance to the principle of specialty does not reguire 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,

(citations omitted).

Conclusion

Nothing 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

11 States."

(d)(1). The state court identified the

correct governing federal legal principles and construed the

extradition treaty's terms in a manner that was consistent with

those principles and with applicable Supreme Court precedent. It

neither reached a conclusion opposite to one reached by the

Supreme Court, nor did it decide petitioner's case differently

than any case the Supreme Court has decided on materially

indistinguishable facts. Finally, even if the New Hampshire

Supreme Court's decision might be viewed as incorrect on one

analytical point or another, still, the state court did not

"unreasonably apply" governing legal principles to the facts of

petitioner's case. Indeed, the state court's decision appears to

be generally correct,3 and consistent with applicable federal

law, particularly as determined by the Supreme Court.

3 Although petitioner does not make the argument, it is possible that, to the extent his probation was revoked due to his having unlawfully possessed a firearm and/or his having left the jurisdiction without permission, the principle of specialty was violated, since the record before this court suggests that he was not extradited based upon those acts. But, because the probation revocation also stands, independently and validly, upon the criminal acts that did give rise to his extradition (sexual assault), that argument, even if meritorious, would not entitle him to habeas relief.

12 In light of the foregoing, the State's motion for summary

judgment (document no. 11) is granted, the petition for federal

habeas relief is denied, and the petition is hereby dismissed.

Petitioner's "Motion for Relief from Order" (document no. 10) is

denied as being both untimely and moot. 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 March 24, 2003

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

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