                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Carrascosa v. McGuire
Precedential or Non-Precedential: Precedential

Docket No. 07-1748




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                             PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
             _______________

                No: 07-1748/4130
                _______________

         MARIA JOSÉ CARRASCOSA,

                        Appellant

                         v.

 LEO P. MCGUIRE, SHERIFF, BERGEN COUNTY
PETER W. INNES; Prosecutor JOHN L. MOLINELLI
             (Intervenors in D.C.)
              _______________

  On Appeal from the United States District Court
            for the District of New Jersey
               (D.C. No. 07-cv-00355)
 District Judge: Honorable Dickinson R. Debevoise
                  _______________

             Argued January 3, 2008
       Before: FUENTES, JORDAN, Circuit Judges
              and O’NEILL*, District Judge.

                   (Filed March 20, 2008)
                     _______________

Clifford E. Lazzaro
Heather A. Fierro [ARGUED]
Lazzaro & Associates
17 Academy Street - #1212
Newark, NJ 07102
       Counsel for Appellant

Danielle R. Pasquale [ARGUED]
Office of Bergen County Counsel
One Bergen County Plaza - Rm. 580
Hackensack, NJ 07601
       Counsel for Leo McGuire

Peter F. Van Aulen [ARGUED]
50 Market Street
Saddle Brook, NJ 07663
       Counsel for Peter W. Innes


_______________
   *Honorable Thomas N. O’Neill, Jr., United States District
Court Judge for the Eastern District of Pennsylvania, sitting
by designation.



                              2
Annmarie Cozzi
Carol V. Catuogno [ARGUED]
Office of County Prosecutor
Bergen County
10 Main Street - Rm. 215
Hackensack, NJ 07601
       Counsel for John L. Molinelli

Jerome J. Shestack [ARGUED]
Wolf, Block, Schorr & Solis-Cohen
1650 Arch Street - 22 nd Fl.
Philadelphia, PA 19103

Alan S. Pralgever
Wolf, Block, Schorr & Solis-Cohen
101 Eisenhower Parkway
Roseland, NJ 07068
      Counsel for Amicus Curiae
      Gov’t Valencia Spain
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Maria José Carrascosa appeals from the District
Court’s denial and dismissal with prejudice of her petition for
a writ of habeas corpus, which sought to end her detention in
the Bergen County, New Jersey jail for violating a civil
contempt order issued by the Superior Court of New Jersey.

                               3
At the heart of this sad case, which raises questions of
international and federal law under the Hague Convention’s
Civil Aspects of International Child Abduction, T.I.A.S. No.
11670 (Nov. 7, 1988) (the “Hague Convention”), is a custody
battle over a young girl who has not seen either of her parents
in years. Because we agree with the skillful analysis of the
District Court, we must affirm.

I.     Jurisdiction and Scope of Review

        Before reaching the merits of Carrascosa’s appeal, we
first address two threshold issues. The first involves whether
the appeal should be dismissed as time-barred, pursuant to 28
U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4.
Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007); see also In
re Flat Glass Antitrust Litigation, 288 F.3d 83, 88 n.5 (3d Cir.
2002) (“[W]e have an ‘independent responsibility to examine
our own jurisdiction sua sponte.’”) (citation omitted). The
second involves, the effect, if any, that Carrascosa’s failure to
exhaust her state remedies prior to pursuing habeas relief has
on our scope of our review.

       1.     Jurisdictional defect

       The District Court denied Carrascosa’s petition for a
writ of habeas corpus on February 8, 2007 and entered a final
order on February 11, 2007. On February 23, 2007,
Carrascosa filed a Motion for Reconsideration. She then
timely filed a Notice of Appeal in the District Court on
March 12, 2007 which stated:


                               4
               Notice is hereby given that Petitioner
       Maria José Carrascosa, through her undersigned
       attorneys, hereby appeals to the United States
       Court of Appeals for the Third Circuit, pursuant
       to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, from
       a final Order entered in this action on February
       11, 2007.

               Notice is further given that such Order
       entered on February 11, 2007 is currently
       subject to a motion for reconsideration made
       pursuant to District of New Jersey Local Rule
       7.1(i). Petitioner shall withdraw this Notice of
       Appeal, or file an amended notice of appeal, as
       may become necessary.

(11.8.07 Ltr. Br.1 , Ex. B.) The appeal was assigned Docket
No. 07-1748. On March 20, 2007, this Court stayed the
appeal and remanded to the District Court for the sole purpose
of either issuing a certificate of appealability or stating
reasons why a certificate of appealability should not issue.
The District Court issued a certificate of appealability on
March 27, 2007.

     Carrascosa’s Motion for Reconsideration was denied
on May 15, 2007. She then filed what she styled an



  1
   Citations to “11.8.07 Ltr. Br.” refer to the letter brief filed
by Carrascosa’s counsel in opposition to dismissal.

                                5
“Amended Notice of Appeal” in the District Court on
October 23, 2007, which stated:

              Notice is hereby given that, MARIA
       JOSÉ CARRASCOSA, Plaintiff in the above
       case, hereby amends the Notice of Appeal to the
       United States Court of Appeals for the Third
       Circuit, timely filed on March 12, 2007, from
       the Final Order entered in this action on
       February 11, 2007, to include the Final Order on
       Reconsideration entered in this action on
       May 15, 2007.

(11.8.07 Ltr. Br., Ex. C.) That second Notice of Appeal was
assigned a new docket number, 07-4130. On November 1,
2007, the Office of the Clerk of this Court notified
Carrascosa’s counsel that her appeal in Docket No. 07-4130
may be subject to possible dismissal for a jurisdictional defect
because it was not filed within thirty days of the District
Court’s May 15, 2007 denial of the Motion for
Reconsideration, as required by Federal Rule of Appellate
Procedure 4(a)(1)(A). In the meantime, the Office of the
Clerk consolidated Docket Nos. 07-1748 and 07-4130 for
purposes of appeal, but informed counsel that only the Court
could determine matters of jurisdiction.

       Carrascosa’s counsel submitted a letter brief on
November 8, 2007 in opposition to dismissal of her appeal in
Docket No. 07-4130. The letter brief explains that, on
April 23, 2007, her previous attorney had filed a motion to be
relieved as counsel, and that Carrascosa entered her own

                               6
appearance, pro se, the same day. Another attorney argued
her motion for reconsideration on May 15, 2007, even though
the notice of substitution of counsel was not filed until
May 18, 2007. Carrascosa’s current counsel was retained on
July 26, 2007.

      Counsel candidly admits that,

      [a]t the time this firm was retained, the time to
      file an amended or a new Notice of Appeal of
      the denial of the Motion for Reconsideration
      under the Federal Rule of Appellate Procedure
      4, heard on May 15, 2007, had expired.
      Additionally, the time to file a motion
      requesting an extension of time to file an
      untimely Notice of Appeal under Federal Rule
      of Appellate Procedure 4(a)(1) and 4(a)(5) had
      also expired.

(11.8.07 Ltr. Br. at 6.) Carrascosa argues, however, that her
first Notice of Appeal, though filed prematurely on March 12,
2007, “specifically referenced the pending reconsideration
motion,” thereby signaling her intention “to seek an appeal of
the denial of the Motion for Reconsideration.” (11.8.07 Ltr.
Br. at 7.) Carrascosa also submits that the Amended Notice
of Appeal was filed only “for the purpose of a complete
procedural record” because she “filed all the necessary
documents for the appeal not [filed by previous counsel]”
(11.8.07 Ltr. Br. at 6), and that this Court should not have
assigned the Amended Notice of Appeal a new docket
number, as it is nothing more than an additional piece of

                              7
Carrascosa’s original appeal under Docket No. 07-1748. We
disagree.

       Carrascosa’s first Notice of Appeal referenced her
then-pending Motion for Reconsideration and recognized the
need to file a further Notice of Appeal once the District Court
decided that motion. Obviously, Carrascosa was aware of the
statutory requirement to timely file a new or amended notice
of appeal after the District Court denied her Motion for
Reconsideration on May 15, 2007. As we explained in United
States v. McGlory,

              Federal Rule of Appellate Procedure 4(a)
       provides that a notice of appeal filed before the
       disposition of one of the motions specified in
       Rule 4(a)(4)(A)[2], including a [motion for
       reconsideration 3 ], will become effective upon
       entry of the order disposing of the motion.


  2
    “If a party timely files in the district court any of the
following motions under the Federal Rules of Civil
Procedure, the time to file an appeal runs for all parties from
the entry of the order disposing of the last such remaining
motion ... (iv) to alter or amend the judgment under Rule
59 ... .” Fed. R. App. P. 4(a)(4)(A).
  3
   Motions for reconsideration “are generally treated as
motions to alter or amend judgment under Rule 59(e) of the
Federal Rules of Civil Procedure.” McGlory, 202 F.3d at
668.

                               8
      Because McGlory filed his notice of appeal
      from the court’s January 3, 1997 order while the
      [motion for reconsideration] was pending, the
      notice of appeal became effective on September
      22, 1998 - the date that the District Court
      entered its order denying that motion. See Fed.
      R. App. P. 4(a)(4)(B)(i)[4]. However, in order to
      contest the denial of a [motion for
      reconsideration], a new or amended notice of
      appeal must be filed. Thus, when the District
      Court denied McGlory’s [motion for
      reconsideration] on September 22, 1998,
      McGlory could proceed with his appeal of the
      January 3, 1997 order ... without further filing,
      but if he wanted the appeal to encompass any
      challenge to the order of September 22, 1998,
      he was required to file an amended notice of
      appeal. See Fed. R. App. P. 4(a)(4)(B)(ii)[5]. ...


  4
    “If a party files a notice of appeal after the court
announces or enters a judgment--but before it disposes of any
motion listed in Rule 4(a)(4)(A)--the notice becomes effective
to appeal a judgment or order, in whole or in part, when the
order disposing of the last such remaining motion is entered.”
Fed. R. App. P. 4(a)(4)(B)(i).
  5
   “A party intending to challenge an order disposing of any
motion listed in Rule 4(a)(4)(A), or a judgment altered or
amended upon such a motion, must file a notice of appeal, or
an amended notice of appeal ... [within 30 days after the

                              9
202 F.3d 664, 668 (3d Cir. 2000) (emphasis added) (internal
citations omitted). In this case, Carrascosa’s Notice of
Appeal became effective on May 15, 2007 (Pa. 53)6 , the date
that the District Court entered its order denying her Motion
for Reconsideration (Pa. 28). As we made clear in McGlory, if
Carrascosa wanted her appeal “to encompass any challenge
to” the District Court’s denial of that motion, she was
required to file a new or amended notice of appeal within the
thirty day time limit imposed by the Federal Rules. Id.; Fed.
R. App. P. 4(a)(4)(B)(ii) and 4(a)(1)(A).

        Recently, in Bowles v. Russell, the Supreme Court
emphasized that “the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.” 127 S. Ct. at 2366.
That holding is rooted in the fact that the time limit for filing
a notice of appeal is mandated by statute.7 Id. at 2364. It is


judgment or order appealed from is entered] measured from
the entry of the order disposing of the last such remaining
motion.” Fed. R. App. P. 4(a)(4)(B)(ii).
  6
   Citations to “Pa.” refer to the Appendix filed by
Carrascosa.
  7
   Section 2107 of Title 28 of the United States Code
provides:
      Except as otherwise provided in this section, no
      appeal shall bring any judgment, order or decree
      in an action, suit or proceeding of a civil nature
      before a court of appeals for review unless
      notice of appeal is filed, within thirty days after

                               10
undisputed that Carrascosa’s October 23, 2007 Amended
Notice of Appeal, which sought review of the District Court’s
ruling on her Motion for Reconsideration, was filed far
beyond the thirty day limit imposed by 28 U.S.C. § 2107 and
embodied in Rule 4(a)(1)(A) of the Federal Rules of
Appellate Procedure. Accordingly, we do not have
jurisdiction to review any arguments raised for the first time
in Carrascosa’s Motion for Reconsideration.8 We must
therefore limit our review to the merits of the District Court’s
February 8, 2007 denial of her habeas petition.9 Accord


       the entry of such judgment, order or decree.
       28 U.S.C. § 2107.
  8
   As explained in more detail below, these include (1)
Carrascosa’s claim that it is impossible for her to comply with
the orders of the Superior Court of New Jersey, (2) her
assertion that she was denied due process during the divorce
and custody proceedings, (3) her argument that the Superior
Court wrongfully blended the custody award with punishment
and (4) her argument regarding the alleged excesses of the
Superior Court’s orders.
  9
    Finally, though this argument is not explicitly made, it
appears that Carrascosa is blaming her previous counsel for
the untimely filing of the Amended Notice of Appeal and
asking that she not be penalized for counsel’s conduct.
Leaving aside the observation that Carrascosa is the one who
decided, more than once, to fire her counsel at a critical stage
in the case, her argument is unavailing because it seeks
essentially equitable relief from the time limit on appeals. In

                               11
McGlory, 202 F.3d at 668 (“Patently, McGlory’s original
notice of appeal ... could not confer jurisdiction over the
District Court’s ... order denying reconsideration. ...”).

       2.     Exhaustion

       The issue of exhaustion is relevant to our scope of
review because, if a petitioner’s claim is exhausted and has
been adjudicated on the merits by a State court, her petition
may not be granted unless the State court’s adjudication of the
claim resulted in “a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law” or “a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). In
contrast, an unexhausted claim may be denied on the merits as
long as the petitioner is not incarcerated “in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. §§ 2254(a), (b)(2).




Bowles, the Supreme Court concluded that the federal courts
do not have the power to create equitable exceptions to
jurisdictional requirements. Bowles, 127 S. Ct. at 2365
(“Congress decides what cases the federal courts have
jurisdiction to consider.”). Regardless of her counsel’s
conduct, Carrascosa’s failure to timely file her Amended
Notice of Appeal prevents us from exercising jurisdiction
over the District Court’s denial of her Motion for
Reconsideration.

                              12
        During the proceedings before the District Court,
Respondent-Appellee Sheriff Leo P. McGuire (“the State”)
argued that Carrascosa’s habeas petition was barred for
failure to exhaust state remedies. Carrascosa v. McGuire,
No. 07-0355, 2007 WL 496459, at * 5 (D.N.J. Feb. 8, 2007)
(“Carrascosa I”); see 28 U.S.C. § 2254(b)(1)(A) (“An
application for a writ of habeas corpus ... shall not be granted
... unless it appears that the applicant has exhausted the
remedies available in the court of the State ... .”). It is true
that Carrascosa’s claim was not exhausted at the time she
sought habeas relief from the District Court. Carrascosa I,
2007 WL 496459 at *5. The District Court, however,
proceeded under 28 U.S.C. § 2254(b)(2), denying
Carrascosa’s petition on the merits and dismissing it with
prejudice, notwithstanding her failure to exhaust state
remedies. Id. at *6, *11.

       Section 2254(b)(2) provides that “[a]n application for a
writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(2). The District Court was thus well within its
discretion to deny Carrascosa’s unexhausted claim on the
merits. See, e.g., Taylor v. Horn, 504 F.3d 416, 427 (3d Cir.
2007) (“[B]ecause we will deny all ... claims on the merits, we
need not address exhaustion.”); Bronshtein v. Horn, 404 F.3d
700, 728 (3d Cir. 2005) (“[W]e may reject claims on the
merits even though they were not properly exhausted, and we
take that approach here.”); Lambert v. Blackwell, 387 F.3d
210, 260 n.42 (3d Cir. 2003) (addressing an unexhausted


                               13
claim “because it is meritless and we can therefore dismiss it
under 28 U.S.C. § 2254(b)(2).”) (citation omitted).10


  10
     In Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1998), we
addressed a situation where a district court granted habeas
relief and ordered the petitioner’s immediate release from
custody after finding she had been wrongly convicted of first
degree murder. Lambert v. Blackwell, 962 F. Supp. 1521,
1551 (E.D. Pa. 1997), vacated by 134 F.3d 506, 524 (3d Cir.
1998). The district court had ignored that the petitioner’s
claims were not exhausted and had granted her petition on the
merits. Lambert, 962 F. Supp. at 1554. Vacating the district
court’s decision, we said,
        [S]ection 2254(b)(2) does not provide the
        district court with the authority to grant relief on
        the merits where the petitioner fails to exhaust
        state remedies. Thus, a strict reading of the
        statute compels us to conclude that if a question
        exists as to whether the petitioner has stated a
        colorable federal claim, the district court may
        not consider the merits of the claim if the
        petitioner has failed to exhaust state
        remedies ... .
Lambert, 134 F.3d at 515. There is, however, a difference
between granting an unexhausted habeas claim on the merits
and denying such a claim on the merits, as recognized by the
plain language of section 2254(b)(2) and our subsequent

decision in Lambert, 387 F.3d 210, 260 n.42. Denying an
unexhausted claim on the merits is consistent with the statute.

                              14
       Though Carrascosa had not exhausted her state
remedies at the time she sought habeas relief from the District
Court, on appeal, she asserts that “all state remedies have now
been exhausted,” and that any question “of non-exhaustion of
remedies is now moot.” 11 (Pet. Br. at 1.) The State has not
challenged that assertion, nor has it made any arguments
pertaining to the exhaustion requirement. While the State has
not expressly waived the issue of exhaustion, see 28 U.S.C. §
2254(b)(3),12 both parties have foregone any argument
pertaining to the issue for purposes of this appeal.13

       The District Court properly proceeded pursuant to
section 2254(b)(2), and issued a certificate of appealability
on March 27, 2007. Carrascosa v. McGuire, No. 07-0355,
2007 WL 951956 (D.N.J. Mar. 27, 2007). Therefore, we have

  11
     See infra at n.23 (summarizing Carrascosa’s journey
through the New Jersey courts); see also Toulson v. Beyer,
987 F.2d 984, 987 (3d Cir. 1993) (“The habeas petitioner
bears the burden of proving that he has exhausted available
state remedies.”) (citations omitted).
  12
    “A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the
requirement unless the State, through counsel, expressly
waives the requirement.” 28 U.S.C. § 2254(b)(3).
  13
     Indeed, the State would be hard-pressed to challenge
Carrascosa’s petition on non-exhaustion grounds, because at
this point she appears to have exhausted all available state
remedies. See infra at n.23.

                              15
jurisdiction to review the District Court’s decision denying
Carrascosa’s petition on the merits pursuant to 28 U.S.C. §
2253, which states that the final order of a district court in a
habeas proceeding shall be subject to review on appeal if a
certificate of appealability has issued. 28 U.S.C. §§ 2253(a)
and (c)(1).

II.    Standards of Review

        We apply a plenary standard of review when, as in this
case, the District Court denies a habeas corpus petition based
on its review of the record and does not conduct an
evidentiary hearing. Fahy v. Horn, Nos. 03-9008, 03-9009,
__ F.3d __, 2008 WL 191643, at *3 (3d Cir. Jan. 24, 2008)
(citing Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001)).
We review the District Court’s findings of fact for clear error
and review de novo its legal conclusions. Chadwick v.
Janecka, 312 F.3d 597, 605 n.6 (3d Cir. 2002); see also Croll
v. Croll, 229 F.3d 133, 136 (2d Cir. 2000) (“The proper
interpretation of the Hague Convention is an issue of law,
which we review de novo.”)(citation omitted).14
III. Background

       The factual background of this case is set forth in
painstaking detail in the April 3, 2007 decision of the


  14
    Because we review the decision to deny the petition on
the merits under § 2254(b)(2), our review is of the District
Court’s reasoning and is not undertaken pursuant to §
2254(d).

                               16
Superior Court of New Jersey, Appellate Division, reported at
Innes v. Carrascosa, 918 A.2d 686 (N.J. Super. Ct. App. Div.
2007), as well as in the prior decisions of the District Court,
see Carrascosa I, 2007 WL 496459 (denying habeas petition);
Carrascosa v. McGuire, No. 07-0355, 2007 WL 1456205
(D.N.J. May 15, 2007) (“Carrascosa II”) (denying motion for
reconsideration). We will therefore set forth only the facts
most pertinent to our discussion, even though this truncated
version fails to fully capture the toxic air of acrimony that
permeates the case.

        Carrascosa, a citizen of Spain, and Peter Innes,15 a
United States citizen, were married in a Catholic ceremony in
Spain on March 20, 1999. Carrascosa I, 2007 WL 496459 at
*1. Their daughter, Victoria, was born on April 17, 2000, in
Seacaucus, New Jersey, and has dual citizenship in Spain and
the United States. Id. “Innes and Carrascosa separated in
early 2004.” Id.

       On October 8, 2004, Innes and Carrascosa, both
represented by counsel, signed a “Parenting Agreement.” 16
Id. The Parenting Agreement reflected their attempts to
resolve custody issues pertaining to Victoria and
memorializes “the terms of a proposed interim resolution of
parenting time for Mr. Innes.” (Pa. 59.) It specifically


  15
       Innes participated as an intervenor in this case.
  16
    The parties agree that the Parenting Agreement is a valid,
binding contract under New Jersey law.

                                  17
prohibited either of them from “traveling outside of the
United States with Victoria without the written permission of
the other party.” 17 (Pa. 59-60.) The parties did not seek any
court’s imprimatur for the Parenting Agreement. Carrascosa
I, 2007 WL 496459 at *1.

      On December 10, 2004, Innes filed an action in the
Superior Court of New Jersey seeking a divorce from
Carrascosa. Id. Shortly thereafter, on December 15, 2004,
Carrascosa filed an action in Spain seeking “nullification” of
the marriage.18 Id. The event at the heart of this case


  17
    This provision, akin to a ne exeat clause in a court order,
comports with New Jersey law, which states that even after
custody is determined in a divorce proceeding, the unilateral
removal of a child by a custodial parent without the other
parent’s consent or a court order is forbidden. N.J.S.A. 9:2-2.
  18
     Carrascosa claims that she filed a matrimonial nullity
action with the Ecclesiastical Court in Spain, and that on
May 24, 2004, the Ecclesiastical Court made a formal public
notice of the application to annul the marriage. The District
Court found that Carrascosa’s petition for matrimonial
annulment was filed on December 15, 2004 and concluded
that there were no prior proceedings that precluded the New
Jersey courts from proceeding simultaneously under N.J.S.A.
2A:34-34 (now 2A:34-70), as there was no evidence that the
Ecclesiastical Court was “a court of another state exercising
jurisdiction substantially in conformity with [N.J.S.A. 2A:34-
38 et seq.].” Carrascosa I, 2007 WL 496459 at *1, n.1. The

                              18
occurred on January 12, 2005, when Carrascosa took Victoria
to Spain, without Innes’s permission or knowledge. Id.

        Shortly thereafter, on February 4, 2005, Judge Parsons
of the Superior Court of New Jersey entered an order
governing the divorce proceedings that Innes had initiated.
Id. at *2. In particular, the judge ordered that Victoria “be
returned from Spain immediately” and that, upon her return,
the parties were to abide by the terms of the Parenting
Agreement. Id. Carrascosa’s appeal of that order was denied
on March 14, 2005. Id. On March 22, 2005, Judge Parsons
granted Innes temporary custody of Victoria, again ordered
that she be returned from Spain, and, if she were not, ordered
a warrant to issue automatically for Carrascosa’s arrest. Id.

       On June 14, 2005, Innes filed an application in Spain
seeking the immediate return of Victoria to New Jersey and
enforcement of Judge Parsons’ orders. Id. However, Innes
also made the contradictory request “that Victoria not be
permitted to leave Spain” because he apparently “fear[ed] that
she would be taken to a third country.” Innes, 918 A.2d at
694. While plainly not what Innes had in mind, the Spanish



Appellate Division reached the same conclusion. Innes, 918
A.2d at 711 (“[A]n ecclesiastical annulment alone would not
be cognizable in New Jersey as a first-filed action ... .”).
Carrascosa argues that the District Court erred in reaching this
conclusion; however, nothing in the record demonstrates that
the District Court’s ruling on this point was erroneous as a
matter of fact or law.

                              19
Court of First Instance, No. 9 (“Spanish Court No. 9")
responded with an order on June 24, 2005, prohibiting
Victoria from leaving Spain until her eighteenth birthday. Id.;
Carrascosa I, 2007 WL 496459 at *2. Innes appealed that
decision and, on November 11, 2005, Spanish Court No. 9
reversed itself, concluding that it lacked jurisdiction because
Victoria’s country of habitual residence was the United
States.19 Carrascosa I, 2007 WL 496459 at *3. By
December 9, 2005, a different Superior Court judge in New
Jersey, Judge Torack, had been assigned to the case and
“ordered Carrascosa to [bring] Victoria [home] by
December 22, 2005, or face sanctions.” Id. He also ordered
Innes and Carrascosa to each submit to a standard custody
evaluation, which Innes did, but Carrascosa refused to do. Id.

       In the meantime, Carrascosa appealed the November
11, 2005 decision of Spanish Court No. 9. Id. On January 18,


  19
     In light of Spanish Court No. 9's June 24, 2005 decision,
the Superior Court dismissed portions of Innes’ complaint for
divorce and vacated all of its prior orders pertaining to
custody and sanctions against Carrascosa. Carrascosa I, 2007
WL 496459 at *3. And, “[i]n an attempt to recognize the
interests of the Spanish courts ... the Superior Court stayed the
proceeding until [it] could talk with the Spanish courts. The
Spanish courts failed to reciprocate ... .” Id. at *9. Once
Spanish Court No. 9 reversed itself, the Superior Court
reinstated all of its prior orders in the divorce action, except
for the warrant for Carrascosa’s arrest. Id. at *3.


                               20
2006, Spanish Appellate Court No. 10 (“Spanish Court No.
10") found that the October 8, 2004 Parenting Agreement
implicitly assigned full custody of Victoria to Carrascosa. See
id. (Spanish Court No. 10 finding that the “assignment of
custody [to Carrascosa] is indeed implicitly stated in [the
Parenting Agreement]” ... .). Spanish Court No. 10 then
reinstated the order of Spanish Court No. 9 prohibiting
Victoria from leaving Spain until her eighteenth birthday. Id.
at *4.

       Trial on the divorce proceedings began in the Superior
Court of New Jersey on August 16, 2006. Innes, 918 A.2d at
698. Innes, Carrascosa, and their respective counsel were
present, though Carrascosa expressly limited her appearance
to a challenge to the court’s jurisdiction. Id. at 713
(“[C]arrascosa only filed a ‘limited notice of appearance’ in
this case ... .”). Judge Torack issued separate orders of final
judgment of divorce on August 23 and 24, 2006.20 Id. at 700.
The August 23 order “dissolved the marriage between Innes
and Carrascosa” and “awarded Innes sole legal and residential
custody” of Victoria. Id. Among other things, the August 24
order required Carrascosa to “direct her attorney in Spain to
apply to the [Spanish] courts for the return of Victoria’s
Spanish and United States passports” and to return Victoria to
the United States from Spain within ten days. Id. The
August 24 order further provided that, if Carrascosa failed to


  20
    An August 30, 2006 order was a corrected judgment of
divorce removing an improper designation of counsel. Innes,
918 A.2d at 701.

                              21
comply, a warrant for her arrest would issue immediately and
“she [would] remain in the Bergen County jail until Victoria
[is turned over to Innes].” Id. at 700-01. Carrascosa made no
efforts to obtain Victoria’s passports or return her to the
United States. Id. at 701. On September 1, 2006, Judge
Torack issued a warrant for Carrascosa’s arrest and an order
of commitment, effective until Victoria is returned to Innes.
Id. Carrascosa was arrested in New York and incarcerated
late November 2006, pursuant to the Superior Court’s
commitment order. Carrascosa I, 2007 WL 496459 at *5;
Innes, 918 A.2d at 702. She has since been in the Bergen
County jail.21 Id.

       Carrascosa petitioned the District Court for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254(b)(1), seeking to
end and enjoin her detention. As noted earlier, the District
Court denied her petition with prejudice on February 8, 2007.
Carrascosa I, 2007 WL 496459 at *11. The District Court’s
February 8, 2007 opinion analyzed the decisions of the
Spanish courts and determined that they ignored the mandates
of the Hague Convention by impermissibly making custody
determinations and failing to address and apply New Jersey


  21
    We note that Carrascosa is also incarcerated pending trial
on criminal charges in the Superior Court of New Jersey,
namely, eight counts of second degree interference with
custody and one count of fourth degree contempt. State v.
Carrascosa, Indictment No. 2222-06. This has no impact on
our decision and serves simply to explain the Bergen County
Prosecutor’s participation as an intervenor in this appeal.

                              22
law. Carrascosa I, 2007 WL 496459 at *6, *9. The District
Court also determined that the decision of Spanish Court No.
10 was “not entitled to reciprocity on principles of comity.”
Id. at *6 (citing Diorinous v. Mezitis, 237 F.3d 133, 142 (2d
Cir. 2001)). Implicit in the District Court’s decision is a
determination that the Superior Court was acting within the
proper scope of its authority by holding Carrascosa in
contempt, and therefore her federal habeas petition set forth
no basis for relief. Carrascosa’s petition was thus denied and
she remained incarcerated for her failure to comply with the
orders of the Superior Court.22 Id. at *11.


  22
    The chronology of Carrascosa’s subsequent journey
through the state and federal courts can be summarized as
follows:
       After the District Court denied her habeas petition,
Carrascosa filed on February 23, 2007 a Motion for
Reconsideration of the District Court’s decision and, on
March 12, 2007, her first Notice of Appeal. We stayed her
appeal on March 20, 2007, pending the District Court’s
issuance of the certificate of appealability, which was issued
on March 27, 2007. Carrascosa v. McGuire, No. 07-0355,
2007 WL 951956 (D.N.J. Mar. 27, 2007). On April 3, 2007,
the Appellate Division of the Superior Court of New Jersey
issued its opinion affirming the Superior Court’s divorce and
custody decisions. Innes, 918 A.2d at 716. The District Court
denied Carrascosa’s Motion for Reconsideration on May 15,
2007. Carrascosa II, 2007 WL 1456205 at *2. Carrascosa’s
petition for certification to the Supreme Court of New Jersey
was denied without opinion on June 21, 2007. Innes v.

                              23
IV.    Discussion

       Before us is Carrascosa’s appeal from that February 8,
2007 decision denying her petition for a writ of habeas
corpus. She argues that the District Court erred both in
finding that the Spanish courts departed from the mandate of
the Hague Convention and in failing to afford comity to the
decisions of the Spanish courts.23




Carrascosa, 926 A.2d 857 (N.J. 2007). Carrascosa then filed
her Amended Notice of Appeal on October 23, 2007.
  23
     Carrascosa had further argued that it is impossible for her
to comply with the orders of the Superior Court to secure
Victoria’s passports and return Victoria to the United States
from Spain. While the record on this point leaves us as
unimpressed as was the District Court, Carrascosa II, 2007
WL 1456205 at *6, it was raised for the first time in
Carrascosa’s Motion for Reconsideration, the denial of which
we lack jurisdiction to review, see supra at pp. 3-9.
       Carrascosa also argued, through the amicus brief of the
Government of the Comunidad Valenciana Region
(“Valencia”), that she was denied due process during the
divorce and custody proceedings in the Superior Court.
Valencia, a constituent province of Spain, participated as
amicus on appeal by consent of the parties and with leave of
this Court. As explained in more detail, infra at p. 28, we are
also without jurisdiction to review that argument.

                              24
       A.     The Spanish Courts Disregarded the Mandates
              of the Hague Convention and the District
              Court Did Not Err in Refusing to Afford
              Comity to Their Decisions

       The Hague Convention “reflects a universal concern
about the harm done to children by parental kidnapping and a
strong desire among [the countries who are signatories to the
Hague Convention] to implement an effective deterrent to
such behavior.” 24 Feder v. Evans-Feder, 63 F.3d 217, 221
(3d Cir. 1995) (citing Hague Convention, Preamble; 42
U.S.C. § 11601(a)(1)-(4)). “The United States Congress
implemented the Convention through the International Child
Abduction Remedies Act, 41 U.S.C. § 11601 et seq.,
expressly recognizing its ‘international character’ and the
‘need for uniform international interpretation’ of its
provisions.” Id. (citing 42 U.S.C. § 11601(b)(2), (3)(B)).25
       The Hague Convention’s “approach to the
phenomenon of international child abduction is
straightforward.” Id. It aims to protect the legal custody



  24
    Both the United States and Spain are signatories to the
Hague Convention. U.S. Department of State, “List of Hague
Convention Signatory Countries,” available at
<http://travel.state.gov/family/adoption/convention/conventio
n_461.html> (last accessed February 6, 2008).
  25
    The parties agree that the issues in this case are governed
by the Hague Convention and its implementing legislation,
ICARA, 41 U.S.C. §§ 11601 et seq.

                              25
rights of the non-abducting parent and “is designed to restore
the ‘factual’ status quo which is unilaterally altered when a
parent abducts a child.” Id. “Thus, the cornerstone of the
Convention is the mandated return of the child to his or her
circumstances prior to the abduction if one parent’s removal
of the child from [a country that is a signatory to the Hague
Convention] has violated the custody rights of the other, and
is, therefore, ‘wrongful.’” Id. (citations omitted); see also
Hague Convention, Article 12 (“Where a child has been
wrongfully removed ... the authority concerned shall order the
return of the child forthwith.”).

       “[A]n order of return is available as a remedy only for
wrongful removals or retentions ... .” Croll v. Croll, 229 F.3d
133, 137 (2d Cir. 2000) (original emphasis).26 Under Article
3 of the Hague Convention, the removal of a child is wrongful
when:

       a. it is in breach of rights of custody attributed
       to a person, an institution or any other body,
       either jointly or alone, under the law of the State
       in which the child was habitually resident
       immediately before the removal ... and


  26
    “[A] federal court retains, and should use when
appropriate, the discretion to return a child ... if return would
further the aims of the Convention.” Friedrich v. Friedrich,
78 F.3d 1060, 1067 (6th Cir. 1996) (citing Feder, 63 F.3d at
226 (citation omitted)).


                               26
       b. at the time of removal ... those rights were
       actually exercised, either jointly or alone, or
       would have been so exercised but for the
       removal ... .

Hague Convention, Article 3. Rights of custody “may arise in
particular by operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement having
legal effect under the law of that State.” Id.

       In short, the Hague Convention is designed to put all
participants in a custody dispute back into the positions they
would have been in but for one parent’s wrongful removal of
the child. It is not, and was never meant to be, a vehicle for
determining custody rights. Indeed, Article 19 of the Hague
Convention provides that “[a] decision under this Convention
concerning the return of the child shall not be taken to be a
determination on the merits of any custody dispute.” Hague
Convention, Article 19; see also, e.g., 42 U.S.C. §
11601(b)(4) (“The Convention and this chapter empower
courts in the United States to determine only rights under the
Convention and not the merits of any underlying custody
claims.”); Friedrich v. Friedrich, 78 F.3d 1060, 1063-64 (6th
Cir. 1996) (“[A] court in the abducted-to nation has
jurisdiction to decide the merits of an abduction claim, but not
the merits of the underlying custody dispute.”) (citations
omitted); Feder, 63 F.3d at 221, n.5 (“...The Hague
Convention ... does not settle custody disputes ... .”) (citations
omitted).



                               27
       The District Court’s decision denying Carrascosa’s
petition properly applied the law of the Convention and its
implementing legislation. The Court first recognized that
“[t]here is no dispute that [Victoria’s] place of habitual
residence, prior to Carrascosa’s removal of her to Spain, was
the United States, in particular New Jersey.” 27 Carrascosa I,
2007 WL 496459 at *7; accord Feder, 63 F.3d at 224 (“... a
child’s habitual residence is the place where he or she has
been physically present for an amount of time sufficient for
acclimatization and which has a ‘degree of settled purpose’
from the child’s perspective.”). This is a fact impossible to
deny on the record, and Spanish Court No. 9 agreed that
Victoria’s “habitual residence was in the United States ... .”
Carrascosa I, 2007 WL 496459 at *7.

        As to the question of whether Victoria’s removal to
Spain was wrongful under Article 3 of the Hague Convention,
the District Court examined, first, whether Innes’s custody
rights were breached by Victoria’s removal and, second,
whether Innes was exercising those rights at the time of her
removal. Id. at *7-*8 (citing Feder, 63 F.3d at 225). The
Court noted that, “[a]lthough Innes and Carrascosa signed
[the Parenting Agreement],” there was no court order


  27
    Because New Jersey was Victoria’s habitual place of
residence, the District Court correctly concluded that the
Superior Court “had subject matter jurisdiction over [this]
international custody dispute ... .” Carrascosa I, 2007 WL
496459 at *8 (citing N.J.S.A. 2A:34-53) (other citation
omitted).

                              28
pertaining to custody at the time Victoria was taken to Spain.
Id. at *7. Absent a court order stating otherwise, New Jersey
parents possess equal custody rights to their children. Innes,
918 A.2d at 707 (citing Scanlon v. Scanlon, 102 A.2d 656,
661 (N.J. Super. Ct. App. Div. 1954) (“In a contest between
the mother and father, neither has the superior right to custody
of the child.”)). The Parenting Agreement was certainly not
an adjudication concerning Victoria’s custody. Pending such
an adjudication, Innes and Carrascosa shared joint custody of
their daughter under New Jersey law.

        To determine whether Innes was exercising custody
rights, the District Court looked at whether he had “any sort
of regular contact with [Victoria]” prior to her removal.
Carrascosa I, 2007 WL 496459 at *7 (citing Friedrich, 78
F.3d at 1065). The Court then found that, “[w]ithout a
doubt,” Innes had regular contact with Victoria prior to his
separation from Carrascosa and that, after their separation, he
continued having regular contact with Victoria. Id. at *8.
The District Court concluded that Innes “exercis[ed] his
custody rights in accordance with the [Parenting Agreement]
until Carrascosa prevented him from doing so” by taking
Victoria to Spain. Id. at *8; Innes, 918 A.2d at 698. Because
Innes had custody rights under New Jersey law and was
exercising those rights at the time of Victoria’s removal, and
Carrascosa breached those rights by removing Victoria to
Spain without Innes’s consent, Victoria’s removal was
“wrongful” within the meaning of Article 3 of the Hague
Convention. See Feder, 63 F.3d at 226 (holding that, when
parents are exercising joint custody over their child, one


                              29
parent’s unilateral decision to take that child to another
country is wrongful within the meaning of the Convention).

       The District Court then analyzed Spanish Court No.
10's decision, observing that it recited certain provisions of
the Hague Convention, Carrascosa I, 2007 WL 496459 at *9,
but that there was a “glaring departure ... from the mandate of
the Hague Convention” in its “total failure to determine
Innes’s rights of custody under New Jersey law ... .” Id. For
example, Spanish Court No. 10 openly acknowledged that it
was applying Spanish law when it found part of the
October 8, 2004 Parenting Agreement was invalid:

       Therefore, when, or about, January 12, 2005,
       the mother brought her daughter to Spain, she
       breached the [October 8, 2004 Parenting
       Agreement]. However, in Spain such
       agreement could only be considered a letter of
       intent therefore no solution whatsoever could be
       imposed for such breach of contract, as it was
       an agreement limiting the fundamental rights
       contained in Article 19 of the Constitution that
       guarantees all Spanish citizens the right to
       freely choose their place of residence and the
       use of such expression in the agreement can not
       be deemed valid. The incompatibility of this
       restrictive clause with Spanish law regarding
       fundamental rights, under the autonomous
       system of the Civil Procedure Act, implies
       grounds for a public litigation order and from
       the standpoint of Article 20 of the [Hague]

                              30
       Convention, in justification for a refusal to
       return the child, as has been requested.[28]


  28
     Valencia argues that Spanish Court No. 10 found that the
Parenting Agreement violated the fundamental rights of
Spanish citizens contained in Article 19 of the Spanish
Constitution, through application of Article 20 of the Hague
Convention, and that its decision should be afforded comity.
This argument is on the edge of our jurisdiction, as it was not
fully aired until Carrascosa filed her Motion for
Reconsideration. However, because the operative portion of
Spanish Court No. 10's opinion was considered by the District
Court when it denied Carrascosa’s petition, albeit in a
somewhat different context, Carrascosa I, 2007 WL 496459
at *9, we venture to observe that it has no merit.
        We are told that Article 19 of the Spanish Constitution
states that “Spaniards have the right to freely choose their
place of residence and to freely move about within the
national territory.” (Valencia Br. at 15 (citing Constitucion,
C.E. chap 2, sec. 19).) Article 20 of the Hague Convention
provides that “the return of [an abducted] child ... may be
refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms.” Spanish Court No.
10 determined that the Parenting Agreement restricted the
rights of Spanish citizens to freely choose where they travel
and live and hence was a “justification for a refusal to return
the child ... .” Carrascosa I, 2007 WL 496459 at *9.
        If one assumes that Carrascosa is the one about whom
Spanish Court No. 10 was concerned – and some comments at

                               31
Carrascosa I, 2007 WL 496459 at *9.

       Given the “bald statement that [Spanish Court No. 10]
would apply Spanish law in total disregard of the law of New
Jersey as required by the Hague Convention,” the District
Court determined that there had been a “complete disregard of
the principles of international comity.” Id. at *10. The Court
went on to observe that “[t]he Spanish court departed from
the limited issue it was authorized to decide under the Hague



oral argument by Valencia’s counsel indicated that that may
have been the case – we can only note that the argument has
no basis in fact because, prior to her running afoul of the New
Jersey child abduction laws and court orders, Carrascosa was
free to travel where and when she liked. Nothing in New
Jersey law or the Parenting Agreement purported to restrict
her travel at all. If, however, the Spanish Court was
commenting on Victoria’s right to travel, there are a number
of problems with its conclusion, not least of which is that
small children like Victoria do not make international travel
decisions. They are taken on trips by adults, in this case
wrongfully. Leaving that aside, however, a fundamental
logical problem remains. To say that a country can decline to
return a child to the child’s habitual residence on the theory
that the child’s right to travel is a “fundamental freedom” that
would be violated by the return has the effect of rendering the
Hague Convention meaningless. Construing an exception in a
way that swallows the main purpose of a treaty is inconsistent
with what we take to be commonly understood rules for
construing legal instruments.

                              32
Convention and undertook to resolve the wide range of issues
involved in a custody dispute, in spite of the fact that the
Hague Convention mandated that [it] order[] the return of
Victoria ... to New Jersey.” Id. at *10. The District Court
ultimately concluded that the Spanish courts’ finding that
“Carrascosa had exclusive custody of the child and that Innes
did not have custody because there was no court order
granting him custody ... [was] clearly wrong” under the Hague
Convention and New Jersey law. Id. at *11. The District
Court also disagreed with the Spanish courts’ decision that
Innes only had visitation rights, as opposed to custody rights
under the Parenting Agreement, and ultimately determined
that the Spanish court’s decision was “outside of the terms of
the Hague Convention.” Id.

       The Spanish courts never applied New Jersey law in
this case, despite their recognition that Victoria’s habitual
place of residence was New Jersey. Spanish Court No. 10, in
particular, paid lip service to the Hague Convention and then
proceeded to apply Spanish law in its analysis. Carrascosa I,
2007 WL 496459 at *10. The record demonstrates that the
Spanish courts made custody determinations in direct




                             33
contravention of both the letter and the spirit of the Hague
Convention.29 See, e.g., id. at * 3 (determination that


  29
     Carrascosa argues on appeal that Innes did not have any
custody rights to Victoria, relying heavily on the case of Croll
v. Croll, 229 F.3d 133 (2d Cir. 2000). Her reliance is entirely
misplaced. In Croll, the Second Circuit held that rights of
access are not rights of custody enforceable by a return
remedy under the Hague Convention, even when coupled with
a ne exeat clause. Id. at 135, 143-44. Central to the Second
Circuit’s decision and reasoning was the fact that a Hong
Kong court issued a custody order granting Mrs. Croll sole
“custody, care and control” of the couple’s daughter,
Christina, while granting Mr. Croll a right of “reasonable
access.” Id. at 135 (citation omitted). The order also directed
that Christina “not be removed from Hong Kong until she
attains the age of 18 years” without leave of court or consent
of the other parent. Id. at 135.
        The Second Circuit succinctly stated the issue in Croll
as follows: “If Mr. Croll has custody rights, courts in the
United States have jurisdiction to order return of Christina to
Hong Kong, as the district court has done, and the duty to do
so. If, however, Mr. Croll has the lesser rights of access,
jurisdiction is lacking and Mr. Croll must rely on other
remedies.” Id. at 136. The Second Circuit ultimately
determined that, because of the court order conferring sole
custody upon Mrs. Croll, Mr. Croll did not have “custody
rights” as contemplated by the Hague Convention. Id. at 143.
In sharp contrast to those facts, there was no such court order
in this case, and, as already discussed, Innes had and was

                              34
Parenting Agreement assigned full custody to Carrascosa).
We therefore agree with the District Court that the Spanish
courts “were not acting in accordance with the Hague
Convention” and there was “no obligation on American courts
to enforce their judgments.” Id. at *7.

        In sum, the “Spanish courts departed from the
requirements of the Hague Convention in not returning
[Victoria] to New Jersey so that ... custody ... could be
litigated there.” Carrascosa I, 2007 WL 496459 at *7; see
Feder, 63 F.3d at 221, n.5 (“The Hague Convention ... does
not settle custody disputes... .”) (other citations omitted);
Friedrich, 78 F.3d at 1063-64 (“[A] court in the abducted-to
nation has jurisdiction to decide the merits of an abduction
claim, but not the merits of the underlying custody dispute.”);
Hague Convention, Article 19; 42 U.S.C. § 11601(b)(4). As
did the District Court, we conclude that the Spanish courts
departed from the fundamental premise of the Hague
Convention and violated principles of international comity by
not applying New Jersey law. Carrascosa I, 2007 WL
496459 at *11. We further conclude that the Superior Court
of New Jersey had authority to rule on Victoria’s custody and
to issue orders pertaining to Carrascosa’s civil contempt and
incarceration. We therefore agree with the District Court’s
conclusion that Carrascosa’s habeas petition is without merit



exercising his rights to custody of Victoria at the time she was
wrongfully removed to Spain. Under the Hague Convention,
the remedy for such wrongful removal is to return Victoria to
the United States. Id. at 136, 137.

                              35
and that her incarceration for civil contempt is not “in
violation of the laws or treaties of the United States,” 28
U.S.C. § 2254(a).

              B.     Carrascosa’s Due Process Arguments

        Carrascosa argues that she was denied due process
during the divorce and custody proceedings in the Superior
Court because she was not permitted to present evidence, or
testify, or cross-examine witnesses on the issue of custody.
These arguments were not presented to the District Court in
Carrascosa’s habeas petition. They did, however, feature
prominently during oral argument, as they were raised for the
first time in Valencia’s amicus brief, an oddity acknowledged
therein.30 We are tempted to address these arguments because
their seriousness would typically warrant a response, and, on
this record, perhaps a rebuke. However, because they were
not raised in Carrascosa’s habeas petition, they are not
properly before us. Suffice it to say that these same issues
were generally addressed and disposed of by the Superior




  30
     “As amicus for a foreign nation, we are reluctant to raise
issues of due process in a court proceeding which took place
in a highly respected nation.” (Valencia Br. at 26.)

                               36
Court of New Jersey, Appellate Division.31 Innes, 918 A.2d
at 712-715.

V.        Conclusion

       For the foregoing reasons, the District Court’s denial
of Carrascosa’s petition for a writ of habeas corpus will be
affirmed.




     31
     Again, we also lack jurisdiction to review Carrascosa’s
arguments that custody was already determined at the time of
trial, that the Superior Court wrongfully blended the custody
award with Carrascosa’s punishment, and her arguments
regarding the excesses of the Superior Court’s orders. We
note that the Appellate Division found these arguments
unpersuasive. Innes, 918 A.2d at 714-15.

                              37
