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United States v. John Demjanjuk , 762 F.2d 1012 ( 1985 )


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  • 762 F.2d 1012

    Unpublished Disposition
    NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
    UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
    v.
    JOHN DEMJANJUK, DEFENDANT-APPELLANT.

    NO. 85-3236

    United States Court of Appeals, Sixth Circuit.

    4/17/85

    N.D.Ohio, 603 F.SUPP. 1468

    APPEAL DISMISSED

    ORDER

    BEFORE: KENNEDY, CONTIE, and MILBURN, Circuit Judges.

    1

    This matter is before the Court upon consideration of the government's motion to dismiss Demjanjuk's appeal from a February 21, 1985 district court order asserting jurisdiction over Demjanjuk's extradition proceeding. Demjanjuk filed a response in opposition and moves the Court for a stay pending appeal. The government also requests the Court to assess damages and double costs against Demjanjuk.

    2

    There is no direct appeal from issuance of an extradition certificate. Collins v. Miller, 252 U.S. 364 (1920); United States v. Schultz, 713 F.2d 105 (5th Cir. 1983); David v. Attorney General, 699 F.2d 411 (7th Cir. 1983). The appropriate method of review is a habeas corpus proceeding. United States v. Schultz, supra; In re Mackin, 668 F.2d 105, 108 (2d Cir. 1981). Although the habeas corpus review is limited, it does address whether the district court had jurisdiction in the extradition proceeding. See Fernandez v. Phillips, 268 U.S. 311 (1925); also, Prushinowski v. Samples, 734 F.2d 1016 (4th Cir. 1984). The proper method for review of the February 21, 1985 district court order asserting jurisdiction over Demjanjuk's extradition proceeding is through a petition for writ of habeas corpus and not by direct appeal to this Court. This Court lacks jurisdiction to entertain Demjanjuk's appeal in this case.

    3

    Accordingly, it is ORDERED that the government's motion to dismiss is granted and the appeal is dismissed. Demjanjuk's motion for stay is also denied.

    4

    It is further ORDERED that the government's motion for double costs and damages is denied.