NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUSTAVO LUNA-RUIZ, 

Petitioner-Appellant, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent-Appellee.

No. 17-55803 

D.C. No. 2:14-cv-02482-VAP 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

GUSTAVO LUNA-RUIZ, 

Defendant-Appellant.

No. 17-55804 

D.C. No. 

2:13-cv-05059-VAP-AJW 

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief Judge, Presiding

Submitted February 8, 2019**

Pasadena, California

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,*** District 

Judge.

Petitioner Gustavo Luna-Ruiz (aka Gustavo De La O) appeals the district 

court’s judgment denying his 28 U.S.C. § 2241 habeas corpus petition challenging 

a magistrate judge’s certification of the government’s request under 18 U.S.C. 

§ 3184 for Petitioner’s extradition to Mexico to face aggravated homicide charges. 

We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and we affirm. 

1. On habeas review, the district court must uphold the magistrate judge’s 

probable cause determination if any competent evidence supports the 

determination. Manta v. Chertoff, 518 F.3d 1134, 1145 (9th Cir. 2008). We 

review de novo whether the district court erred in denying a habeas corpus petition 

challenging certification of an extradition order. McKnight v. Torres, 563 F.3d 

890, 892 (9th Cir. 2009). 

2. Competent evidence supports the magistrate judge’s probable cause 

determination for the crime of aggravated homicide. Petitioner is charged with 

aggravated homicide as defined by Articles 147–148 of the Penal Code for the 

State of Baja California, Mexico. As relevant here, a homicide is aggravated when 

the killer has an unfair advantage because of the weapons used, such as when the 

 

*** The Honorable Algenon L. Marbley, United States District Judge for 

the Southern District of Ohio, sitting by designation.
3 

killer is armed and the victim is not; but a homicide is not aggravated if the killer 

acts in self-defense. Penal Code for the State of Baja California, art. 148. 

Eyewitness accounts of the shooting state that the victim punched Petitioner while 

Petitioner was seated inside a vehicle. Petitioner then shot the victim in the head at 

point-blank range and drove away, leaving the victim to die. The eyewitness 

accounts are competent evidence supporting the magistrate judge’s conclusion that 

probable cause existed for the charged crime of aggravated homicide. 

Petitioner argues that the incident was not an aggravated homicide because 

the shooter acted in self-defense.1 The government contends that Petitioner’s 

argument is an affirmative defense that does not affect a probable cause 

determination for extradition. Courts generally do not consider affirmative 

defenses when determining whether probable cause exists to support an extradition 

request. See, e.g., Charlton v. Kelly, 229 U.S. 447, 462 (1913) (holding that the 

magistrate properly excluded evidence of insanity in an extradition proceeding 

because the defense was properly reserved for determination at trial in the charging 

jurisdiction). But even assuming arguendo that Petitioner’s claim is properly 

 

1 Petitioner raises this argument for the first time on appeal. “As a general rule, we 

do not consider issues raised for the first time on appeal.” Manta, 518 F.3d at

1144. But we recognize an exception where “plain error has occurred and an 

injustice might otherwise result.” Id. (quoting United States v. Flores-Montano, 

424 F.3d 1044, 1047 (9th Cir. 2005)). Because an erroneous extradition order 

would affect Petitioner’s substantial rights, we review the magistrate judge’s 

probable cause determination for plain error. 
4 

before us, it still fails because competent evidence supports the magistrate judge’s 

probable cause determination. We therefore conclude that the magistrate judge did 

not commit error—plain or otherwise—in finding probable cause supported the 

crime charged. 

3. The record contains ample competent evidence to support the magistrate 

judge’s determination that there was probable cause to conclude that Petitioner was 

the individual who perpetrated the crime. Two eyewitnesses identified Petitioner’s 

photograph as that of the shooter. Two other individuals identified Petitioner as 

the person they knew to be Gustavo Luna-Ruiz, the person wanted for the 

shooting. Although Petitioner raises several objections to the procedures used to 

obtain the eyewitness identifications, “there is no per se rule that specifies which 

identification procedures are ‘competent’ for probable cause purposes.” Quinn v. 

Robinson, 783 F.2d 776, 815 (9th Cir. 1986); see also Manta, 518 F.3d 1144–45. 

Accordingly, the procedures used to obtain the identifications do not negate the 

identifications as competent evidence to support the magistrate judge’s probable 

cause determination at the extradition certification. 

AFFIRMED.