Mironescu v. Cotner - Opposition

No. 07-5427

In the Supreme Court of the United States

PETRU MIRONESCU, PETITIONER

v.

HARLAN COSTNER, UNITED STATES MARSHALL
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE
FEDERAL RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DOUGLAS N. LETTER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly concluded that Congress has barred judicial review of a challenge under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85, and the For eign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, 112 Stat. 2681-761, to the Secretary of State's decision to reject a fugitive's claim that he will be tortured if returned to his home country and to surrender the individual for extradition.

In the Supreme Court of the United States

No. 07-5427

PETRU MIRONESCU, PETITIONER

v.

HARLAN COSTNER, UNITED STATES MARSHALL
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE
FEDERAL RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A at 1- 22) is reported at 480 F.3d 664. The opinion of the dis trict court (Pet. App. D at 1-10) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 22, 2007. A petition for rehearing was denied on April 17, 2007 (Pet. App. C at 1). The petition for a writ of certiorari was filed on July 16, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner was convicted in Romania in absentia for various crimes relating to auto theft and was sen tenced to an aggregate term of four years imprisonment. In 2003, after Romania requested petitioner's extradi tion, he was arrested in the United States. A magistrate judge certified that petitioner was extraditable. Pet. App. A at 6. Petitioner sought habeas corpus relief to challenge that determination. The district court ruled that the extradition certification for petitioner was valid. Petitioner also claimed that his extradition was contrary to the Convention Against Torture and Other Cruel, In human or Degrading Treatment or Punishment (CAT), adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85, as implement ed by Section 2242 of the Foreign Affairs Reform and Restructuring Act (FARR Act), Pub. L. No. 105- 277, Div. G, 112 Stat. 2681-822 (8 U.S.C. 1231 note). The court ruled that that claim was not ripe for judicial re view and should be brought to the attention of the Secre tary of State. See 345 F. Supp. 2d 538, 540-541 (M.D.N.C. 2004); see id. at 542-543 (magistrate judge's recommendation).

The Secretary of State then determined that the CAT did not bar petitioner's extradition and that the government would proceed with petitioner's extradition. Pet. App. A at 7; Pet. App. D at 2.

2. Petitioner next filed this habeas action against, among others, respondent Harlan Costner, who is the United States Marshal for the Middle District of North Carolina and who was holding petitioner pursuant to the district court's order certifying his extradition to the Secretary of State. Petitioner asserted that his extradi tion would violate the CAT and the FARR Act. Respon dents moved to dismiss, arguing that the district court lacked authority to review the Secretary of State's ex tradition decision. The district court denied that motion. It ordered the United States not to surrender petitioner to Romanian authorities and to produce the extradition record for in camera review. Pet. App. A at 6-8; Pet. App. D at 1-2, 9-10.

3. Respondents appealed that order to the Fourth Circuit, which held that the district court had lacked jurisdiction to consider petitioner's claims in light of the wording of Section 2242(d) of the FARR Act, 112 Stat. 2681-822. The court of appeals ruled that Congress had in that provision barred consideration of claims under the CAT, except in seeking review of a final order of removal under the immigration laws. The Fourth Cir cuit therefore remanded the matter for dismissal of peti tioner's action. Pet. App. A at 15-22. On April 16, 2007, the Fourth Circuit stayed its mandate, pending the timely filing of a petition for a writ of certiorari. Pet. App. B at 1. Petitioner filed such a petition on July 16, 2007.

4. Meanwhile, the United States was notified by Romanian officials that petitioner, based on information provided by the United States, had then been detained for the full term of his sentenced period of incarceration in Romania. Because Romania credits a defendant's sentence with the time he has spent awaiting extradi tion, petitioner no longer had any time left to serve in his Romanian sentence. Respondents therefore moved the court of appeals to dismiss this case as moot, inform ing the court that, under such circumstances, further extradition proceedings are not warranted, and the United States no longer sought petitioner's extradition to Romania.

On September 19, 2007, the Fourth Circuit denied that motion, explaining that petitioner apparently re mained in custody pending extradition and that this ac tion was, therefore, not moot. App. A, infra,1a-2a. The court of appeals was apparently unaware that, at the request of the United States, on September 17, 2007, the district court had entered an order releasing petitioner from custody "pending final action in the appeal of this matter." The district court noted in its order that "the United States has now withdrawn its request for extra dition of Petitioner to Romania and does not oppose this court entering an order releasing Petitioner on his own recognizance." App. B, infra, 3a. Accordingly, peti tioner was released, and he is no longer in custody pend ing extradition or otherwise.

5. In light of these developments, respondents re newed their motion in the court of appeals to dismiss this case as moot. Petitioner consented to that motion. Respondents informed the Fourth Circuit that peti tioner had indeed been released and that the United States has no intention to have him placed in custody again for purposes of extradition on the Romanian charges that formed the original basis of his detention.

On October 24, 2007, the Fourth Circuit issued a cor rected order, noting that petitioner had been released from custody and that "the Government no longer seeks his extradition to Romania." App. C, infra, 5a. For that reason, the court observed, "it appears that [peti tioner's] habeas action challenging that detention is now moot." Ibid. The court of appeals stated, however, that, when its March 22, 2007, opinion had been issued, a live controversy existed, and it therefore declined to dismiss petitioner's appeal as moot. Id at 5a-6a.

On November 1, 2007, the Fourth Circuit issued its mandate, providing that the judgment of the court en tered on March 22, 2007, was now to take effect. App. D, infra, 7a.

ARGUMENT

As the court of appeals correctly recognized in its October 24, 2007, order, this case is moot. Petitioner has been released from custody and the United States has stated unequivocally in its papers filed in the court of appeals that it has no intention of having him placed in custody again for purposes of extradition on the relevant Romanian charges. Under these circumstances there is no longer any live controversy for this Court to review.

"It has long been settled that a federal court has no authority 'to give opinions upon moot questions or ab stract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Thus, "[t]o qualify as a case fit for federal- court adjudication, an actual controversy must be extant at all stages of review." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citation omitted). "[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party," Church of Scientology, 506 U.S. at 12, or that deprives that party of a "legally cognizable inter est in the outcome," City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting County of L.A. v. Davis, 440 U.S. 625, 631 (1979)), the appeal must be dismissed for want of Article III jurisdiction.

Because this case is moot, further review of the mer its of petitioner's claim is no longer possible, and the petition for a writ of certiorari should be denied. Peti tioner's counsel has authorized us to state that he agrees with this result.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DOUGLAS N. LETTER
Attorney

NOVEMBER 2007