1 18-3437-pr Marcus Brian Jainarine Bisram v. United States of America 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 9 th day of July, two thousand nineteen.
Present: D ENNIS J ACOBS , D EBRA A NN L IVINGSTON , J OSEPH F. B IANCO , Circuit Judges

.

_____________________________________ M ARCUS B RIAN J AINARINE B ISRAM , Petitioner-Appellant , v. 18-3437-pr
U NITED S TATES OF A MERICA , Respondent-Appellee

. 1

____________________________________ For Petitioner-Appellant: C HARLES A. R OSS (Timothy Joseph Quill, Jr., on the brief ), Mintz & Gold LLP, New York, NY For Respondent-Appellee: N ICHOLAS J. M OSCOW (Samuel P. Nitze, Rebecca A. Haciski, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY

1 The Clerk of Court is respectfully instruct ed to amend the caption as set forth above.2 Appeal from an October 31, 2018 judgment of the United States District Court for the Eastern District of New York (Matsumoto, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Petitioner-Appellant Marcus Brian Jainarine Bi sram, a dual citizen of the United States of America and the Co-operative Republic of Guyana (“ Guyana”), currently faces a charge of murder in Guyana in connection with a beating at Bisram’s Guyanese re sidence on the night of October 31, 2016, and the subsequent death of the victim. The evidence against Bisram includes a written statement allegedly given to Guyanese polic e on November 15, 2016 by Chaman Chunilall, a relative of Bisram’s and a guest at Bisram’s house on the night of the alleged murder. The statement describes a party that took place at Bi sram’s house that evening, during which Chunilall allegedly witnessed Bisram approach an inebriat ed party guest, Faiyaz Narinedatt, and grope Narinedatt’s private parts. The statement claims that Narinedatt res ponded by slapping Bisram several times and that Bisram responded in turn by instructing his bodygua rd and several other party guests (in words or substance) to kill Narine datt. The statement then claims that the men began to beat Narinedatt with wooden staves be fore finally placing Nari nedatt’s bloodied and motionless body in the trunk of one of the men’s cars, which was th en driven away. Narinedatt was found dead the next morning. In addition to the written statement by Chunilall, Corporal Germaine Laundry of the Criminal Investigations Department of the Guyana Police Force has sworn in an affidavit that Chunilall did indeed make the written statement containing these details. On February 14, 2017, following an investiga tion into Narinedatt ’s death, Guyana submitted a formal request to the United States Department of State for Bisram’s extradition to face a charge of murder. On October 12, 2017, a ma gistrate judge in the United States District3 Court for the Eastern District of New York (Kuo, M.J. ) issued a Certificate of Extraditability, certifying to the Secretary of State that there wa s probable cause to believe that Bisram committed the charged murder and authorizing the Secretary’s extradition of Bisram to Guyana. On November 17, 2017, Bisram filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, cha llenging the Certificate of Extraditability. On October 31, 2018, following several extensi ons, the district court (Matsumoto, J .) denied Bisram’s petition, concurring in the magist rate judge’s determination that there was a “reasonable ground” to believe that Bisram committed the murder as charged. Sp. App. 14 (citation omitted). Bisram now appeals the district court’s denial of his habeas pe tition on the grounds that (1) the evidence presented to the extradi tion court failed to establish a reasonable ground to believe that Bisram committed the charged murder, especially in light of Chunilall’ s subsequent alleged recantation of his original statement to police; and that (2) Bisram received constitutionally ineffective assistance of counsel during the extradition and habeas proceedings. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. Discussion “At an extradition hearing, the ‘judicial offi cer’s inquiry is confined to the following: whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for ex tradition is sufficient under the applicable standard of proof.’” Skaftouros v. United States , 667 F.3d 144, 154–55 (2d Cir. 2011) (quoting Cheung v. United States , 213 F.3d 82, 88 (2d Cir. 2000)). “In the exercise of the extraditing judge’s discretion, a fugitive may be permitted to offer explanatory testimony, but may not offer proof which contradicts that of the demanding country.” Messina v. United States , 7284 F.2d 77, 80 (2d Cir. 1984). Thus, “statements [that] would in no way explain . . . or . . . obliterate the government’s evidence, but woul d only pose a conflict of credibil ity . . . should properly await trial in [the country seeking extradition].” Shapiro v. Ferrandina , 478 F.2d 894, 905 (2d Cir. 1973) (Friendly, J .) (internal quotation marks omitted). Extradition orders “may only be reviewed by a petition for a writ of habeas corpus under 28 U.S.C. § 2241.” Skaftouros , 667 F.3d at 157. On collateral review of an extradition order, the district court may only “inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat li beral extension, whether there was any evidence warranting the finding that ther e was a reasonable ground to believe the accused guilty.” Id. (internal quotation marks omitted) (quoting Fernandez v. Phillips , 268 U.S. 311, 312 (1925)). Ultimately, “in order to merit habeas relief in a proceeding seeking collateral review of an extradition order, the petitioner mu st prove by a preponderance of the evidence that he is in custody in violation” of the statute authorizing extr adition or the applicab le extradition treaty. Skaftouros , 667 F.3d at 158 (internal quotation marks omitted). A. Sufficiency of the Evidence Bisram first argues that the evidence presented to the magistrate judg e does not establish a reasonable ground to believe that Bisram comm itted the charged crime because the principal witness for the prosecution, Chunilall, has sin ce recanted his original statement implicating Bisram. The district court rejected this argum ent and upheld the extradition court’s finding for three main reasons. We agree with each of them. First, as the district court recognized, Bisram failed to introduce evidence of Chunilall’s alleged recantation at his extradition proceeding, although he had such evidence in his possession at that time and has provided no reas on why he could not have done so. See Sp. App. 13 (“Despite5 apparently having evidentiary proof of recantati ons at the time, including that of Chunilall, petitioner failed to offer the evidence to Magistrate Judge Kuo during the extradition proceedings.”). Before the magistrate judge, Bisram ’s attorney conceded that he had evidence of Chunilall’s alleged recantation in his possession. See JA388 (“Chumallilo [sic] . . . is the one who has completely recanted his story . . . And we have transcripts that say that.”). Yet Bisram never provided that evidence to the magistrate judge, who was presented only with Chunilall’s November 2016 statement implicating Bisram. Given the contents of the reco rd at the extradition proceeding, it is no surprise that the extradit ing court found “probable cause to believe that [Bisram] . . . committed the offense for which extradition is sought.” J.A. 437. And Bisram cites no authority for the propositi on that a habeas court reviewing an extraditing court’s decision (much less a court of appeals reviewing the habeas court ’s decision) has a basis to entertain additional evidence not presented to the extraditing court despite its availability to the petitioner at the time of the extradition proceeding. Second, the district court concluded that ev en considering the proffered evidence of Chunilall’s alleged recantation, it is not clear that Chunilall in fact recanted his original statement.
See Sp. App. 14 (“Based on the evidence submitted, it is not clear that Chunilall recanted his statement. Instead, he appears to be respondin g to leading questions in a manner that suggests confusion on his part.”). The evidence of Chun ilall’s alleged recantation to which Bisram points consists largely of one-word statements that Chunilall made in response to hostile crossexamination before a Guyanese Magistrate C ourt on July 27, 2017 and April 4, 2018. Compared to Chunilall’s comprehensively detailed statem ent in November 2016, these cross-examination responses contain almost no deta il at all. For instance, in the April 2018 proceeding, Chunilall gave one-word answers to 106 out of 108 consecutiv e questions. Moreover, at both proceedings,6 Chunilall’s responses cast doubt on his level of comprehension of the nature of the proceedings and the questions being asked. For instance, at the July 17 pr oceeding, when asked whether he understood the questions being pu t to him, Chunilall re sponded, “No,” J.A. 638, and at the April 2018 proceeding, when asked to explain his conflicti ng responses to the atto rneys for either party, he responded, “I don’t have a reason,” J.A. 665. Such responses underm ine the probative value of Chunilall’s alleged recantation at these proceedings, particularly in light of additional statements at the April 2018 proceeding reaffirming Chunilall’s original statemen t implicating Bisram. Third, the district court concluded that even if it accepted Bisram’s argument that Chunilall’s original statement alone was insuffi cient proof of criminal conduct by Bisram, other evidence before the magistrate judge, considered in conjunction with Chunilall’s statement, sufficed to meet the relevant standard. See Sp. App. 14 (“Chunilall’s recantation would not completely obliterate probable cause because it was not the sole evidence against petitioner.” (internal quotation marks, altera tions, and citation omitted)). For one thing, Corporal Laundry’s sworn affidavit provides additional evidence that Chunilall did, in fact, make the statement to Guyanese police in which he desc ribed Bisram’s direct involveme nt in Narinedatt’s murder. Chunilall subsequently stated that he never made the November 2016 statement, a claim that contradicts Corporal Laundry’s affidavit and poses a clear-cut credibility dispute well suited for resolution in the extraditing country, but that does not undermine the extraditing country’s threshold showing of probable cause. See Shapiro , 478 F.2d at 905 (“[S]tatements [that] would in no way explain . . . or . . . obliterate the gove rnment’s evidence, but would only pose a conflict of credibility . . . should properly await trial in [the country seek ing extradition].”). For another thing, even erasing every reference to Chunilall’s account from the record, a strong circumstantial case points toward Bisram’s involvement in the mu rder. Multiple witnesses testified that Bisram7 was arguing with Narinedatt, that Bisram aske d his bodyguard to do something about Narinedatt, and that the bodyguard and several other guests brut ally beat Narinedatt until he was motionless and bleeding. Even such circumstantial evidence alone could constitute “evidence warranting the finding that there was reasonable gr ound to believe the accused guilty.” Skaftouros , 667 F.3d at 157. We agree with all three reasons th e district court gave for declin ing to issue a writ of habeas corpus to Bisram on the basis of Chunilall’s al leged recantation. At a minimum, we cannot say that the district court erred in concluding that the evidence submitted by Guyana surpassed the minimal threshold of “any evidence warranting the finding that there was a reasonable ground to believe the accused guilty.” Id.
B. Ineffective Assistance of Counsel Bisram additionally argues that he received constitutionally ineffective assistance of counsel, both before the magistrate judge and before the habeas court. This argument fails because Bisram lacked a constitutional right to the e ffective assistance of counsel in either context. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of C ounsel for his defence.” U.S. Const. amend. vi. But this constitutional guarantee does not apply in the context of an extradition proceeding. See Caltagirone v. Grant , 629 F.2d 739, 748 n.19 (2d Cir. 1980) (“The Sixth Amendment by its terms applies only to ‘criminal prosecutions,’ and an extradition proceedi ng is not a ‘criminal prosecution.’”). As for habeas corpus procee dings, the same reasoning applies. The Sixth Amendment provides no right to c ounsel in the context of habeas corpus review of a criminal conviction, see Pennsylvania v. Finley , 481 U.S. 551, 555 (1987), and Bisram cites no authority for the proposition that the rule should be different in the context of a habeas corpus proceeding8 reviewing a magistrate judge’s issuance of a Ce rtificate of Extraditability. Because Bisram “ha[s] no constitutional right to counsel” in these c ontexts, he “[can]not be deprived of the effective assistance of counsel” in either one. Wainwright v. Torna , 455 U.S. 586, 587–88 (1982); see also Evitts v. Lucey , 469 U.S. 387, 396 n.7 (1985) (“ Of course, the right to effective assistance of counsel is dependent on the right to counsel itsel f.”). Because the right to counsel provided by the Sixth Amendment did not apply under the circumst ances presented by this case, Bisram’s claim of a constitutional violation must fail.
* * * We have considered all of Bisram’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk