                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 31, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ARTUR JOZEF SWIERZBINSKI,

               Petitioner - Appellant,                   No. 10-3153
          v.                                              (D. Kansas)
 ERIC HOLDER, Attorney General of              (D.C. No. 5:10-CV-03059-RDR)
 the United States; HILLARY
 RODHAM CLINTON, Secretary of
 State; LANNY D. WELCH, United
 States Attorney District of Kansas;
 WALTER R. BRADLEY, United
 States Marshal District of Kansas;
 SHELDON RICHARDSON, Warden
 of Corrections Corporation of
 America,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Acting pursuant to 18 U.S.C. § 3184, United States Magistrate Judge James

P. O’Hare concluded Artur Jozef Swierzbinski should be certified for extradition

to Poland. In so concluding, Magistrate Judge O’Hare ruled, inter alia, that the

crime for which extradition was sought—the beating and robbing of Wojciech

Dabrowski—was covered by the United States’ extradition treaty with Poland.

      Contesting only that narrow issue, Swierzbinski filed the instant 28 U.S.C.

§ 2241 petition for habeas corpus relief in the United States District Court for the

District of Kansas. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (holding

that habeas corpus review is available in extradition proceedings only to examine

whether (1) the magistrate had jurisdiction, (2) the offense is covered by the

governing treaty, and (3) there was any evidence warranting a finding that there

was reasonable grounds to believe the accused guilty). In particular, Swierzbinski

alleged the extradition treaty’s requirement of dual criminality was not satisfied

because Poland was not seeking his extradition based on his underlying criminal

conduct, but instead based on his violation of probation. Cf. Peters v. Egnor, 888

F.2d 713, 718 (explaining doctrine of dual criminality).

      The district court rejected as both factually and legally inaccurate

Swierzbinski’s contention that the basis for Poland’s extradition request did not

satisfy the treaty’s dual criminality requirement. As a factual matter, the district

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court noted that Poland’s extradition request sought Swierzbinski’s return “in

order to execute the adjudicated penalty of imprisonment” (i.e., suspended

sentence) on Swierzbinski’s underlying criminal conviction. The district court

also noted that Swierzbinski’s dual criminality contention failed as a matter of

law, given that the United States Supreme Court had squarely rejected previous

attempts to create a disconnect between violations of parole and reimposition of a

suspended sentence. Alabama v. Shelton, 535 U.S. 654, 662 (2002) (“A

suspended sentence is a prison term imposed for the offense of conviction. Once

the prison term is triggered, the defendant is incarcerated not for the probation

violation, but for the underlying offense.”).

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and undertaking de

novo review, 1 this court affirms the district court’s denial of habeas relief. In

analyzing whether the dual criminality doctrine was satisfied, the district court

quite correctly looked to the crime underlying Swierzbinski’s sentence of

imprisonment (i.e, the serious beating of an individual for the purpose of robbing

him of a leather jacket), rather than focusing on the irrelevant fact that the

sentence was reinvigorated by Swierzbinski’s violation of the terms of his parole.

Shelton, 535 U.S. at 662; see also United States v. Lazerman, No. 98-50339, 1999

WL 542876, at *2 (9th Cir. July 26, 1999) (rejecting argument nearly identical to

      1
       Peters v. Egnor, 888 F.2d 713, 718 (10th Cir. 1989) (“Whether dual
criminality is satisfied is a purely legal question to be reviewed de novo.”
(quotation omitted)).

                                          -3-
the one advanced by Swierzbinski and holding that “[p]arole and probation are

part of the original sentence and revocation of parole or probation is regarded as

reinstatement of the sentence for the underlying crime, not as punishment for the

conduct leading up to the revocation” (quotation omitted)). Because

Swierzbinski’s contention as to dual criminality fails as a matter of law,

Magistrate Judge O’Hare correctly issued a certificate of extraditability and the

district court correctly denied Swierzbinski’s § 2241 habeas petition. The order

of the district court is hereby AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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