NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 04 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

HECTOR MIGUEL AGUIRRE, No. 13-56165

Petitioner - Appellant, D.C. No. 5:12-cv-00859-JVS-RNB

v.

MEMORANDUM*

JEFF MACOMBER,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted May 4, 2015 Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

Petitioner Hector Miguel Aguirre appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Both the California Superior Court and the state Court of Appeal concluded

that the phrase “natural life imprisonment” in the extradition agreement prohibited

the state from imposing on Aguirre a sentence of life without the possibility of

parole (“LWOP”), but not the 84-years-to-life sentence that Aguirre received.

Aguirre does not identify Supreme Court precedent that interprets the phrase

“natural life imprisonment,” and our research has revealed none. And there is no

clearly established federal law to support Aguirre’s argument that his sentence is

functionally equivalent to LWOP. Without applicable Supreme Court authority,

the California courts’ decisions are not “contrary to, or . . . an unreasonable

application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1),1 and we

must uphold them under the deferential standard of the AEDPA. See Glebe v.

Frost, 135 S. Ct. 429, 431 (2014) (discussing standard of review); Wright v. Van

Patten, 552 U.S. 120, 126 (2008) (per curiam) (“Because our cases give no clear

answer to the question presented, let alone one in [the petitioner’s] favor, it cannot

be said that the state court unreasonabl[y] appli[ed] clearly established Federal

law.” (alterations in original) (citations omitted) (internal quotation marks

omitted)).

1 The California court did not, as Aguirre argues, make a factual finding when it interpreted the extradition agreement. Because this is a legal question, this case does not implicate 28 U.S.C. § 2254(d)(2). 2

AFFIRMED.

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FILED

Aguirre v. Macomber, No. 13-56165 JUN 04 2015

MOLLY C. DWYER, CLERK

PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS

Before Hector Aguirre was extradited from Mexico to the United States our

government assured the Mexican government that “neither a sentence of death nor

of natural life imprisonment [would] be sought or imposed in [Aguirre’s] case.” In

2008, when Aguirre was 26 years old, a California state court sentenced him to 84-

years-to-life. Aguirre will not be eligible for parole until 2088, around the time of

his 106th birthday.1 It is a near certainty that he will be imprisoned for the

remainder of his natural life.2

According to Black’s Law Dictionary, “[n]atural life” means “[a] person’s

physical life span.” Black’s Law Dictionary (10th ed. 2014). “Life imprisonment”

means “[c]onfinement of a person in prison for the remaining years of his or her

natural life.” Id. Therefore, natural life imprisonment is the confinement of a

person in prison for the remaining years of his or her physical life span.

1 The court credited Aguirre for the time he served prior to his sentencing. 2 According to the United States Census Bureau, a male born in 1982, like Aguirre, has a life expectancy of about 70.8 years. U.S. Census Bureau, Statistical Abstract of the United States: 2012, Table 104: Expectation of Life at Birth, 1970 to 2008, and Projections, 2010-2020, http://www.census.gov/compendia/statab/2012/tables/12s0105.pdf. While these statistics generally apply to individuals born in the United States, Aguirre currently resides in the United States and this average life expectancy illustrates the most optimistic view of his expected life span considering that the life expectancy in Mexico is of a shorter duration. The dictionary definition of “natural life imprisonment” demonstrates that

the California courts made an unreasonable legal determination when they found

that a sentence of 84-years-to-life did not constitute a sentence of natural life

imprisonment. Because Aguirre’s sentence almost certainly ensures that he will be

imprisoned for the remainder of his natural life, his sentence violates the

extradition agreement between the United States and Mexico. Clearly a lengthy,

indeterminate sentence is a sentence of a natural life imprisonment if the parole

eligibility date falls outside the individual’s expected life span.

California’s use of the infinitesimally small possibility that Aguirre will live

to 106 years old and be considered for parole to justify its decision that he was not

sentenced to natural life imprisonment is not in keeping with the mutual respect

between sovereigns that serves as the basis for international extradition. See

United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (“[I]n evaluating the exact

limitations set by the extraditing nation, courts should not elevate legalistic

formalism over substance. To do otherwise would strip comity of its meaning.”).

Such behavior endangers the United States’ ability to bring back individuals

accused of crimes in the future through extradition agreements and jeopardizes the

treatment of United States citizens in prosecutions abroad. See United States v.

Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988) (“To guarantee limited prosecution

2 by nations seeking extradition of persons from the United States, the United States

has guaranteed, pursuant to treaty, that it will honor limitations placed on

prosecution in the United States.”)

For these reasons, I respectfully dissent.

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