Garza v. United States , 180 F. App'x 522 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-40112
Summary Calendar
RAMIRO GALVAN GARZA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-587
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Ramiro Galvan Garza (Galvan) appeals the denial of a
petition for habeas corpus under 28 U.S.C. § 2241. Galvan
challenges a ruling that he is extraditable to Mexico to face a
charge of murder.
Galvan contends that the evidence did not establish probable
cause that he committed the crime. An extradition proceeding is
in the nature of a preliminary hearing; the foreign country need
not show actual guilt, but only probable cause. Escobedo v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40112
-2-
United States, 623 F.2d 1098, 1102 n.5 (5th Cir. 1980). The
jurisdiction of the committing court and the applicability of the
extradition treaty were not at issue; we need only to determine
“whether there was any evidence warranting the finding that there
was reasonable ground to believe the accused guilty.” Id. at
1101 (quotation marks omitted). We need not consider the weight
or sufficiency of that evidence. Id. at 1102.
Although there was no physical identification of Galvan as
the shooter, there was eyewitness testimony, by affidavit, that
“Ramiro Galvan” had quarreled with the victim and brandished a
gun at him a few hours prior to the shooting. One eyewitness
testified by affidavit that he was driving the car from which
“Ramiro Galvan” fired the fatal shots. There was corroborating
circumstantial evidence that on the night of the murder, Galvan
was in Reynosa, Tamaulipas, Mexico, where the murder occurred.
There was also evidence that the accused and the “Ramiro Galvan”
mentioned by the witnesses were known to drive a yellow Chevrolet
and had a mother named Graciela Garza de Galvan. We conclude
that there is probable cause to extradite Galvan.
Galvan contends that the committing court erroneously
refused to admit an affidavit from a private investigator showing
that the driver of the shooter’s car was unable to identify
Galvan as the shooter from a photo line-up. Evidence
contradicting the Government’s evidence is not permitted at an
extradition hearing, so as to avoid a trial of guilt or
No. 05-40112
-3-
innocence. See Collins v. Loisel, 259 U.S. 309, 316-17 (1922);
Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969). Even if the
affidavit were admissible as “explanatory” evidence rather than
contradictory evidence, Galvan has not shown that the committing
court’s refusal to consider the affidavit “was so clearly
unjustified as to amount to the denial of the hearing prescribed
by law” because the affidavit would not have explained away the
witness’s testimony, but only challenged its credibility. See
Collins, 259 U.S. at 317.
The judgment of the district court is AFFIRMED.
The Government’s motion to dismiss the appeal is DENIED.