Cristobal Benitez, a citizen of Mexico, murdered a man in San Diego in 1997. He promptly fled the country, but he didn't go right across the border to his native land. He got on a plane to Venezuela.  The extradition treaty gives each country the right to decline extradition in cases subject to the death penalty or life in prison. In approving his extradition, the Venezuela Supreme Court stated that he could not be sentenced to more than thirty years. The Ministry of Foreign Affairs noted this "understanding" but did not get an agreement to that effect. The U.S. Embassy had stated in its request that Benitez would be sentenced to 25-to-life if convicted of first-degree murder.

Benitez was actually sentenced to 15-to-life plus a firearm enhancement, so apparently he was only convicted of second-degree murder. State courts denied Benitez's extradition claim, and the Federal District Court found that the decision did not violate clearly established federal law. A year ago, the Ninth Circuit reversed in an opinion by Judge Dorothy Nelson.

On appellate jurisdiction, the opinion simply says, "We have jurisdiction over this case pursuant to 28 U.S.C. §§ 1291 and 2253(c)." It's a tad more complicated than that.  Paragraph (1) of the latter subsection requires a certificate of appealability as a jurisdictional prerequisite. Paragraph (2) provides, "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of a constitutional right." (Emphasis added.) The case law predecessor of this rule said "federal right," and Congress changed it to "constitutional right." The Supreme Court noted but did not resolve this issue in Medellin v. Dretke, 544 U. S. 660, 666 (2005) (per curiam). Justice Ginsburg, joined by Justice Scalia, called it a "formidable threshold issue[]." Id., at 672. (See, they do agree on something besides opera.)  Another formidable issue is the Reed v. Farley, 512 U. S. 339 (1994) problem. See Medellin, at 664.

After breezing past these questions, the original opinion found that the doctrine of specialty applied and that the correspondence amounted to a conditional extradition. Today's decision recognizes that the previous decision extended the doctrine of specialty from agreements to "unilaterally imposed conditions," which AEDPA does not allow the federal court to do. On the jurisdictional question, though, we still have decision by programmed function key.

In other Ninth Circuit habeas and sentencing action, the chutzpah award goes to Jason Carr of the Nevada Federal Public Defender's office. In the course of attacking prior counsel's failure to appeal, Mr. Carr argued that the LWOP sentence imposed on his client, Kelly Lee Tanner, was disproportionate to his crimes. And what did Mr. Tanner do? "In June 1993, Tanner shot and killed his wife, Julie Tanner, as she lay asleep in their bed. Tanner also forced their twelve-year-old foster son to engage in oral sexual intercourse with him sometime in April or May 1993." "It is clear beyond argument, however, that the sentence Tanner received for murder and for the use of a deadly weapon in its commission would not be deemed cruel and unusual by any court in the United States." Not even the Ninth Circuit.  Not even in an opinion by Judge Tashima.