FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTOBAL RODRIGUEZ BENITEZ,  No. 04-56231

Petitioner-Appellant, D.C. No.

v.  CV-02-00489-DMS

SYLVIA GARCIA, Warden, ORDER AND

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted

July 13, 2005—Pasadena, California

Filed January 22, 2007

Before: Jerome Farris, Dorothy W. Nelson, and

Richard C. Tallman, Circuit Judges.

Per Curiam Opinion

877
COUNSEL

Barbara Strickland, San Diego, California, for the appellant.

Matthew Mulford, Deputy Attorney General, San Diego, California, for the appellee. 

ORDER

The panel opinion filed on May 23, 2006, 449 F.3d 971, is

withdrawn and a substitute opinion is filed simultaneously

BENITEZ v. GARCIA 879
with this order. The petition for rehearing and for rehearing

en banc is denied as moot without prejudice to renewal by

either party following filing of the new opinion.

OPINION

PER CURIAM: 

Cristobal Rodriguez Benitez was arrested in Venezuela and

extradited to the United States. Benitez was tried and convicted of murder and sentenced to an indeterminate sentence

of fifteen years to life (in addition to four years for the use of

a firearm). Benitez petitioned for a writ of habeas corpus,

arguing that his sentence could not exceed thirty years

because of a sentence limitation contained in the extradition

decree from the Supreme Court of Venezuela and the Venezuelan Ministry of Foreign Affairs. The district court denied his

petition; Benitez appealed. We have jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253(c). 

Where the provisions of the extradition treaty so provide,

the surrendering country may condition extradition of the

fugitive on punishment limitations. The Supreme Court has

clearly established that the extraditing country’s expectations

must be respected if they are within that country’s rights

under the extradition treaty. As was its right under the U.S.-

Venezuela extradition treaty, Venezuela made clear its expectation that upon extradition Benitez would not be sentenced to

a potential life sentence. The state court’s decision not to

enforce Venezuela’s expectation was objectively unreasonable. We therefore reverse the decision of the district court

and grant the petition. 

I

Benitez, a Mexican citizen, was convicted of murdering a

man involved in an altercation with Benitez’s brother in San

880 BENITEZ v. GARCIA
Diego, California. After the shooting, Benitez fled to Venezuela. On June 25, 1997, the United States requested that pursuant to the U.S.-Venezuela extradition treaty Venezuela

extradite Benitez to face charges in California. The extradition treaty provides that:

[T]he Contracting Parties reserve the right to decline

to grant extradition for crimes punishable by death

and life imprisonment. Nevertheless, the Executive

Authority of each of the Contracting Parties shall

have the power to grant extradition for such crimes

upon the receipt of satisfactory assurances that in

case of conviction the death penalty or imprisonment

for life will not be inflicted. 

Treaty of Extradition, Jan. 19-21, 1922, U.S.-Venez., Art. IV,

43 Stat. 1698, T.S. No. 675. 

On June 25, 1997, the Venezuelan Ministry of Foreign

Affairs — upon receiving the request from the United States

to extradite Benitez — contacted the U.S. Embassy and asked

for information related to the sentence Benitez might face if

convicted in an American court. On November 6, 1997, the

U.S. Embassy responded that under California law “if convicted of murder, and if murder in the first degree is found,

Cristobal Rodriguez Benitez would receive a sentence of

incarceration of 25 years to life.” The Ministry indicated to

the Venezuelan Supreme Court that the response meant that

“in principle” Benitez would not be subject to a sentence of

greater than thirty years. 

On August 17, 1998, the Supreme Court of Venezuela

approved the extradition of Benitez, but stated that if an

American court convicts Benitez it “shall not . . . impose[ ] a

penalty involving [the] death penalty or life imprisonment or

punishment depriving his freedom for more than thirty years.”

The Ministry of Foreign Affairs in Venezuela received this

decision and communicated to the United States that

BENITEZ v. GARCIA 881
Benitez’s extradition was “conditioned to the understanding

that [Benitez] will not be sentenced to . . . life in prison or

incarceration for more than thirty (30) years.” Benitez was

extradited from Venezuela to the United States on August 28,

1998. 

On November 5, 1998, the San Diego County District

Attorney filed an information alleging that Benitez committed

murder and personally used a firearm in violation of California Penal Code § 12022.5(a). On July 16, 1999, about the

time that Benitez’s trial was to commence, the Venezuelan

Embassy wrote to the United States Department of Justice

stating its concern that the sentence Benitez faced “may violate the provisions of the Extradition Treaty” between the

United States and Venezuela and might also violate “the conditions established in the sentence of the Supreme Court of

Venezuela which approved the extradition request presented

by the Government of the United States.” 

Benitez raised this issue at trial in California state court

without success. The day before he was to be sentenced, the

United States Department of State faxed a letter to the District

Attorney of San Diego County indicating that even though the

State Department did “not believe the Office of the District

Attorney is required to make such a recommendation,” the

Department of State still believed it would be wise if Benitez

were not issued a life sentence. Benitez was given an indeterminate sentence of fifteen years to life with an enhancement

for the personal use of a firearm. At the sentencing hearing,

the state trial court indicated that Benitez’s argument that the

sentence violated the terms of his extradition was not ripe for

review. 

Benitez’s state habeas petitions were denied. The federal

magistrate judge determined that Benitez’s petition challenging his sentence had merit, but was not ripe because Benitez

might not be forced to serve jail time exceeding thirty years.

The district court decided that the dispute was ripe but that

882 BENITEZ v. GARCIA
Benitez failed to demonstrate that his sentence violated

clearly established federal law. 

II

[1] We must first decide whether Benitez’s petition is ripe

for review or instead will only be ripe if he is not released

after thirty years. Benitez’s extradition was conditioned upon

a limitation on what sentence could be entered against him as

well as what sentence he could serve. When the Venezuelan

Ministry of Foreign Affairs informed the U.S. Embassy of the

Venezuelan Supreme Court’s decision to extradite Benitez,

the Ministry indicated that the extradition was “conditioned to

the understanding that the aforementioned citizen will not be

sentenced to death or life in prison or incarceration for more

than thirty (30) years.” (emphasis added). Additionally,

Benitez’s extradition decree limited what sentence could be

issued as well as what sentence could be served. 

[2] This dispute therefore turns on the term sentenced, not

the term served. It became ripe as soon as the state court

entered a sentence of fifteen years to life. Cf. United States v.

Campbell, 300 F.3d 202, 211 (2d Cir. 2002) (recognizing a

difference between extradition terms limiting what sentence

could be entered by the receiving state’s courts and what sentence the receiving state could force the prisoner to serve). 

[3] The disparity between the extradition decree’s limitation and the sentence imposed caused Benitez an “injury in

fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). Although courts are reluctant to find standing when an

injury will result only if a future event transpires, see City of

L.A. v. Lyons, 461 U.S. 95, 102 (1983), here standing is not

premised on the intervention of a future event. Instead, unless

some future event intervenes (which we have no reason to

believe is probable or even likely), Benitez will be imprisoned

for life. He has therefore proven a sufficient possibility of “fuBENITEZ v. GARCIA 883
ture injury.” Central Delta Water Agency v. United States,

306 F.3d 938, 947 (9th Cir. 2002).1

III

A

[4] We review the district court’s denial of a writ of habeas

corpus de novo. Martinez-Villareal v. Lewis, 80 F.3d 1301,

1305 (9th Cir. 1996). Because Benitez filed his petition after

the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996, AEDPA provides the governing standard

of review. See Woodford v. Garceau, 538 U.S. 202, 207

(2003). For a writ to issue we must find that the state court’s

decision was either contrary to or an objectively unreasonable

application of “clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 404-

05, 410 (2000). 

Benitez concentrates on demonstrating that his sentence

resulted from the state court’s objectively unreasonable application of clearly established federal law as determined by the

Supreme Court. Under AEDPA that can occur where the state

court unreasonably applies the correct legal standard to the

facts of the defendant’s case or where the state court either

unreasonably extends or unreasonably fails to extend an existing legal principle into a new context. See id. at 407. We too

focus on that portion of the habeas standard. 

[5] The clearly established federal law controlling this case

comes from United States v. Rauscher, 119 U.S. 407 (1886),

and Johnson v. Browne, 205 U.S. 309 (1907), which set forth

1Finding that a petitioner like Benitez could not challenge the latter portions of his sentence also would be highly problematic from a pragmatic

perspective. It would require courts to address each portion of a sentence

only once it is absolutely clear that a prisoner would serve that portion. 

884 BENITEZ v. GARCIA
the principles of interpretation and international comity relevant to enforcing extradition treaties and the terms of specific

extraditions. Rauscher and Browne established that the extraditing country’s expectations regarding punishment limitations must be respected if they are within that country’s rights

under the extradition treaty.2 Rauscher and Browne are also

clear that these expectations and rights are interpreted expansively in the unique context of foreign extradition relationships, which depend upon trust and mutual respect. 

In Rauscher, the Supreme Court implied into the United

States-Great Britain extradition treaty a term restricting prosecution of extradited defendants to those charges for which

extradition was secured. The Court found that by enumerating

only certain crimes as extraditable, the treaty implicitly incorporated the “public law” principle that an extraditing country

has the right to decide the grounds of extradition, which bind

the receiving country. See Rauscher, 119 U.S. at 419-20.

Although no express treaty language limited the receiving

country’s jurisdiction to prosecute extradited defendants, that

absence was “met by the manifest scope and object of the

treaty itself” — no other interpretation of “solemn public treaties between the great nations of the earth can be sustained by

a tribunal called upon to give judicial construction to them.”

Id. at 422; see also Browne, 205 U.S. at 317. This interpretive

2These decisions are the American judicial basis for a principle known

as the doctrine of specialty, which is now incorporated into the express

language of most extradition treaties. It provides that an extradited defendant may not be prosecuted “for any offense other than that for which the

surrendering country agreed to extradite.” United States v. Andonian, 29

F.3d 1432, 1434-35 (9th Cir. 1994) (citations and quotations omitted).

“The doctrine is based on principles of international comity: to protect its

own citizens in prosecutions abroad, the United States guarantees that it

will honor limitations placed on prosecutions in the United States. Our

concern is with ensuring that the obligations of the requesting nation are

satisfied.” Id. at 1435 (citations omitted). This well-settled doctrine is not

at issue here. Benitez was charged with the crime for which Venezuela

agreed to extradite him. 

BENITEZ v. GARCIA 885
framework was subsequently upheld and applied in Browne,

which reaffirmed that “it is still most important that a treaty

of this nature between sovereignties should be construed in

accordance with the highest good faith.” Browne, 205 U.S. at

321. 

[6] Additionally, Rauscher and Browne demonstrate that

enforcement of an extradition treaty also entails giving effect

to “the processes by which it is to be carried into effect.”

Rauscher, 119 U.S. at 420-21. Most importantly, this means

that language in a foreign nation’s extradition order invoking

provisions of an extradition treaty must be enforced by federal

courts. See Browne, 205 U.S. at 311-12 (specifically considering the extradition orders of the court of King’s Bench in

deciding that the defendant had not been extradited on the

charge for which he was then imprisoned); cf. Andonian, 29

F.3d at 1437 (finding that prosecution for additional counts of

money laundering was not outside the scope of a Uruguayan

court’s extradition order). 

[7] Thus, the Supreme Court has clearly established that the

expectations of the extraditing country — at least those within

its rights, expansively interpreted, under the extradition treaty

and expressed in its official extradition order — limit a state’s

ability to prosecute and sentence the extradited defendant. We

must assess whether the state court heeded this in sentencing

Benitez. 

B

[8] The state court’s failure to give effect to the Venezuelan

extradition order was an objectively unreasonable application

of Rauscher and Browne, the clearly established Supreme

Court precedent. Venezuela had the right to refuse extradition

to the United States unless it received assurances that neither

a death sentence nor life in prison would be imposed. The

thirty-year limitation that Venezuela sought to impose might

be enforceable if that condition were agreed to by both coun886 BENITEZ v. GARCIA
tries. We are wary, however, of enforcing extradition conditions that are neither expressly agreed to by both countries nor

contemplated by the relevant extradition treaty. A thirty-year

limitation is therefore not enforceable. However, Venezuela

clearly believed that it was extraditing Benitez on the condition that he not be subject to a life sentence. That limitation

must be enforced. 

[9] Rauscher and Browne place heavy emphasis on

whether the expectations of the extraditing country, as

expressed in its extradition orders, are honored. Only by

doing so can the “manifest scope and object” of an extradition

treaty be honored in the “highest good faith.” See Rauscher,

119 U.S. at 422; Browne, 205 U.S. at 321. Here, that requires

that Venezuela’s attempt to exercise its rights under the extradition treaty be honored, despite its failure to extract contractually binding assurances from the United States that a life

sentence would not be imposed. Rauscher and Browne, the

purpose of the treaty, and the respect due our longstanding

extradition relationship with Venezuela call for such an interpretation. The state court’s decision otherwise was objectively

unreasonable. 

IV

[10] Benitez’s indeterminate life sentence was the result of

an objectively unreasonable decision by the California courts.

We therefore grant his habeas petition and remand the case

for re-sentencing. Upon re-sentencing, the sentencing limitation in the Venezuelan extradition order must be honored to

the extent that it is authorized by the treaty language. The

treaty says nothing about sentences for a specific term of

years. Therefore, upon re-sentencing the California court may

sentence Benitez to any term of years consistent with California law, but not to a life sentence. 

REVERSED and REMANDED. 

BENITEZ v. GARCIA 887