United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
Ferdinando Gallina, is currently detained by the United
States Marshals Service, at the Essex County Jail, in Newark,
New Jersey, under 18 U.S.C. § 3186 and subject to a June
28, 2018, Opinion and Order of Extradition. On July 3, 2018,
acting by way of counsel, he filed a petition for writ of
habeas corpus, under 28 U.S.C. § 2241, seeking an order
staying his extradition and, ultimately, denying his
extradition under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment ("CAT"). For
the reasons explained herein, Mr. Gallina's petition is
dismissed for lack of subject-matter jurisdiction, Mr.
Gallina is a native and citizen of Italy and admits prior
associations with the mafia in Sicily. (See Mem. of
Law in Supp., ECF No. 1, at 9.) Following his release from an
Italian prison called 41 -bis, which Mr. Gallina
describes as "a notorious prison for criminal defendants
suspected of membership in organized crime," Mr. Gallina
came to the United States in January 2016. (Id. at
3, 10.) Following his departure, Mr. Gallina was charged in
Italy with three homicides. (Id. at 10; see
also Pet., Ex. 7, Op. & Order of Extradition (June
28, 2018), ECF No. 1-29, at 1, 2-4.) The United States, at
Italy's request, commenced extradition proceedings
against Mr. Gallina on June 23, 2017. (ECF No. 1 at 8-9).
Following a hearing on May 21, 2018, Magistrate Judge Leda
Dunn Wettre issued an Opinion and Order of
Extradition. (Id. at 9; see also ECF
No. 1-29.) With the government's consent, Magistrate
Judge Wettre granted a seven-day stay of the order, which
expired on July 5, 2018.
Gallina's petition essentially seeks a finding by this
Court that his extradition to Italy, and his presumed
subsequent return to the 4l-bis prison, must be
denied as it would violate CAT. In support of this, Mr.
Gallina presents extensive arguments and exhibits that
purport to show that the conditions of
4\-bis-including extended solitary confinement and
denial of access to psychological care, for the alleged
purpose of obtaining information-constitute torture. (ECF No.
1 at 31-51.) Magistrate Judge Wettre did not address the
CAT-related arguments prior to issuing the Opinion and Order
of Extradition, finding that such arguments are within the
purview of the executive branch, not the courts. (ECF No.
1-29 at 10-12 (citing Hoxha, 465 F.3d at 563).) As
the Secretary of State has not issued a decision on Mr.
Gallina's extradition, however, he acknowledges that a
challenge to that decision is not yet ripe. (See ECF
No. 1 at 16.) Accordingly, he asks for an immediate stay of
this proceeding pending a decision by the Secretary of State,
as well as a stay of his extradition, pending rulings on his
habeas petition by both this Court and the Court of Appeals.
Gallina is correct that, under Third Circuit precedent, a
challenge to extradition asserted under CAT, and its enacting
statute, the Foreign Affairs Reform and Restructuring Act of
1998 ("FARRA"), will not be ripe unless and until
after the Secretary of State has issued an extradition
decision. Hoxha v. Levi, 465 F.3d 554, 564-65 (3d
Cir. 2006) ("[T]he Secretary of State has yet to take
any action on Petitioner's case, and may ultimately
decide not to extradite Petitioner. Thus, Petitioner's
claim under the APA is not ripe for review, and we decline to
consider it at this time.").
of course, is a key component of a federal court's
subject matter jurisdiction. See Thompson v. Borough of
Munhall, 44 Fed.Appx. 582, 583 (3d Cir. 2002)
("There must be a true and ripe case or controversy for
a federal court to have jurisdiction over an action.");
Phila. Fed'n of Teachers v. Ridge, 150 F.3d 319,
322-23 (3d Cir. 1998) ("The existence of a case and
controversy is a prerequisite to all federal actions .... One
aspect of justiciability is ripeness, which determines when a
proper party may bring an action." (internal quotation
marks and citations omitted)); Travelers Ins. Co. v.
Obusek, 72 F.3d 1148, 1154 (3d Cir. 1995) ("Federal
jurisdiction is also limited by the doctrine of
'ripeness'."). And "when a federal court
concludes that it lacks subject-matter jurisdiction, the
court must dismiss the complaint in its entirety."
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006);
see also Steel Co. v. Citizens for a Better Env %
523 U.S. 83, 93-102 (1998); Berg v. Obama, 586 F.3d
234, 242 (3d Cir. 2009).
Gallina's petition raises the argument that a
hypothetical order of extradition would have to be reversed
because it would violate CAT. He admits that this controversy
is not yet ripe. His petition is accompanied by a motion to
stay this habeas corpus action until the Secretary of State
has acted, and he seeks a stay of that hypothetical
extradition until such time as this court and the United
States Court of Appeals for the Third Circuit have ruled on
the habeas petition (assuming it is restored to the
subject matter jurisdiction, however, I cannot proceed to any
degree; the action must be dismissed. The dismissal, however,
is without prejudice, and this action may be refiled if
necessary. An appropriate order follows.
 Mr. Gallina has apparently been
subject to removal proceedings for entering the country
without having been admitted or paroled. An immigration judge
granted an application for asylum, but the Board of
Immigration Appeals ("BIA") subsequently vacated it
and ordered removal. An appeal of the BIA's order is
presently pending before the Court of Appeals for the Second
Circuit. (See ECF No. 1 at 3-8.)
As the Third Circuit has explained,
"In an extradition hearing, the court decides whether
the defendant is subject to surrender to the requesting
government, a determination that requires a finding as to
whether probable cause supports the charges against the
defendant. If probable cause is satisfied, the judge makes a
finding of extraditability, and the case is certified to the
Secretary of State for ...