(specially concurring).
128. While I concur in the result reached by the majority, I respectfully disagree with the fugitivity analysis relied upon by the majority. The circumstances of this case require us to consider the respective roles of the courts of this State and those of Ohio, but I believe the analysis on which the majority opinion relies expands the role of an asylum state beyond acceptable limits. Both the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, and the Supreme Law of the Land Clause of the New Mexico Constitution, NM Const, art. II, § 1, compel us to recognize limits on the power and authority of an asylum state. The analysis on which the majority opinion relies would take this Court, and other courts, beyond those limits. Nevertheless, I agree with the majority that, on these facts, the district court’s decision should be affirmed. Ohio has not demonstrated the requisite probable cause necessary for justifying the restraint of Reed’s conditional liberty as a parolee involved in extradition. As a result, I would affirm the grant of the writ of habeas corpus for Ohio’s failure to substantially charge Reed with a parole violation.
I.
129. As the majority opinion explains, the U.S. Constitution explicitly mandates the extradition of a fugitive upon the “Demand of the- executive Authority of the State from which he fled....” U.S. Const. Art. IV, § 2. The United States Supreme Court has specifically limited the scope of inquiry available to courts in an asylum state in the context of a request for extradition. California v. Superior Court, 482 U.S. 400, 402, 107 S.Ct. 2433, 2435, 96 L.Ed.2d 332 (1987) (“At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant.”) (emphasis added). “The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met.” California, 482 U.S. at 408, 107 S.Ct. at 2438; see also Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978) (limiting judicial inquiry in habeas corpus proceedings challenging extradition to four issues: technical compliance with required documentation; existence of a crime charged against defendant; concurrence of identity between the defendant and the person sought for extradition; and fugitivity).
130. In Michigan v. Doran, the Supreme. Court limited the scope of habeas review in order to protect the principle, embodied in the Extradition Clause, of preventing “any state from becoming a sanctuary for fugitives from justice of another state and thus ‘balkanize’ the administration of criminal justice among the several states.” Doran, 439 U.S. at 287, 99 S.Ct. at 534. Indeed, frustration of these principles “would create a serious impediment to national unity,” Puerto Rico v. Branstad, 483 U.S. 219, 227, 107 S.Ct. 2802, 2807, 97 L.Ed.2d 187 (1987) (finding in the federal courts a power to compel extradition), because federal limits to state authority in extradition matters “are an essential part of the Framers’ conception of national identity and union.” California, 482 U.S. at 405, 107 S.Ct. at 2437.
131. The majority opinion relies heavily on the issue of “fugitivity,” a permissible ground of review under Doran. However, the issue of fugitivity is a narrow one. “[T]o be a fugitive from justice it is necessary ‘that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence [sic], he has left its jurisdiction and is found within the territory of another.’” California, 482 U.S. at 419, 107 S.Ct. at 2444 (Stevens, J., dissenting) (quoting Roberts v. Reilly, 116 U.S. 80, 97, 6 S.Ct. 291, 300, 29 L.Ed. 544 (1885)). Thus, justice, in the phrase “fugitive from justice,” does not mean the “administration of what is just” or fair; it means the administration of law. Webster’s Third New International Dictionary 1228 (1976) (defining “justice” separately as “the maintenance and administration of what is just” and the “administration of law”). But see Majority Opinion, ¶ 86. As long as the accused “committed that which by [the demanding state’s] laws constitutes a crime,” the justice portion of fugitivity is satisfied. This term does not allow an asylum state to question the fairness with which the demanding state treated the accused.
132. As a result, the U.S. Supreme Court has found it sufficient that the accused meet “the technical definition of a ‘fugitive.’ ” California, 482 U.S. at 408, 107 S.Ct. at 2438. The only issue under fugitivity other than presence in the asylum state is flight from the demanding state. Under the requirement of flight, “when [the accused] is sought to be subjected to [the demanding state’s] criminal process----he has left its jurisdiction.” Roberts, 116 U.S. at 97, 6 S.Ct. at 300. This requirement is responsible for the factual inquiry in habeas' cases. See, e.g., Galloway v. Josey, 507 So.2d 590, 593 (Fla.1987). In effect, presence in the demanding state at the time of the commission of a crime is a jurisdictional requirement without which principles of comity would not command extradition. Thus, any inquiry into the motives of the accused in fleeing the demanding state, or the conduct of the demanding state in relation to the accused, under the fugitivity requirement transgresses the spirit, if not the letter, of a long line of U.S. Supreme Court opinions.
138. In Sweeney v. Woodall, 344 U.S. 86, 87-88, 73 S.Ct. 139, 139-40, 97 L.Ed. 114 (1952) (per curiam), the Supreme Court reversed a Federal Court of Appeals’ remand of a habeas corpus petition on allegations of confinement of the accused amounting to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Supreme Court found that “[cjonsiderations fundamental to our federal system require that the prisoner test the claimed uneonstitutionality of his treatment by [the demanding state] in the courts of that State.” Sweeney, 344 U.S. at 90, 73 S.Ct. at 140 (emphasis added). The Court noted that the “resort to a form of ‘self-help’ ” in fleeing the demanding state should neither weaken the demanding state’s authority to review the accusations of official misconduct nor create authority in the asylum state to review the actions of those officials. Sweeney, 344 U.S. at 89-90, 73 S.Ct. at 140 (“Had he never eluded the custody of his former jailers he certainly would be entitled to no privilege permitting him to attack Alabama’s penal process by an action brought outside the territorial confines of Alabama in a forum where there would be no one to appear and answer for that State.”).
134. In Pacileo v. Walker, 449 U.S. 86, 101 S.Ct. 308, 66 L.Ed.2d 304 (1980), the Court applied the rationale of Sweeney to actions of state courts by reversing a writ of habeas corpus granted to an escaped felon by the California Supreme Court on the basis that a penitentiary in Arkansas, the demanding state, potentially operated in violation of the Eighth Amendment. Relying on Doran and Sweeney, the Supreme Court found that “claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California.” Pacileo, 449 U.S. at 88, 101 S.Ct. at 309.
135. Finally, in California v. Superior Court, the Supreme Court reversed a writ of habeas corpus granted by the California Supreme Court based on a finding that a valid California custody decree precluded a valid charge of kidnapping against the legal custodian under the law of Louisiana, the demanding state. California, 482 U.S. at 404-05, 107 S.Ct. at 2436-37. The U.S. Supreme Court refused to allow inquiry by an asylum state into potential defenses despite the virtual impossibility of the crime and the substantial state interest of California in the enforcement of its child custody decree under the Full Faith and Credit Clause, a constitutional provision with purposes similar to the Extradition Clause. California, 482 U.S. at 412, 107 S.Ct. at 2440 (“[U]nder the Extradition Act, it is for the Louisiana courts to do justice in this case____”).
136. Throughout each of these cases, the U.S. Supreme Court has maintained that issues of the type involved here, such as alleged constitutional violations by officials of the demanding state, are to be addressed in the demanding state or, after exhaustion of remedies, in federal court. Duress is a substantive defense to a criminal act and touches on both the mens rea and the actus reus of the crime. Cf. United States v. Micklus, 581 F.2d 612, 615 (7th Cir.1978) (distinguishing necessity and duress on the basis of actus reus and mens rea). Under duress, there is no question that the accused committed the act in question; it is only culpability which is in dispute. Reed may raise the defense of duress in Ohio for the parole violation and also, if he were so charged under Ohio Rev. Code Ann. Section 2967.15(C)(1), for the offense of escape. See State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319, 322-24 (1979) (discussing the defense of duress for the crime of escape); see also Esquibel v. State, 91 N.M. 498, 501-02, 576 P.2d 1129, 1132-33 (1978) (allowing the defense of duress for the crime of escape in the context of a history of beatings and serious threats by prison guards and personnel), overruled on other grounds by State v. Wilson, 1994 NMSC 008, 116 N.M. 793, 795-96, 867 P.2d 1175, 1177-78. However, by creating an exception to extradition for governmentally-inflicted duress, the majority opinion appears to me inconsistent with existing ease law. Cf. California, 482 U.S. at 407-08, 107 S.Ct. at 2438 (stating that extradition proceedings “are ‘emphatically’ not the appropriate time or place for entertaining defenses”) (citations omitted).
137. A parolee is certainly entitled to a preliminary hearing to determine whether probable cause exists for believing the parolee has violated the conditions of parole. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). However, Ohio is not under a constitutional obligation to provide this hearing prior to taking the parolee into custody. See Moody v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976) (“Loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant.”); D’Amato v. U.S. Parole Com’n, 837 F.2d 72, 75 (2d Cir.1988) (finding no due process violation when warrant for parole violation was issued but not yet executed). As a result, even if the parole officer in this case threatened to arrest Reed, the Adult Parole Authority (APA) then would have a reasonable time to afford Reed the preliminary hearing. See Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602 (“[D]ue process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest____”) (emphasis added). Even if Ohio were to deny Reed a preliminary hearing, it would be a decision of the APA, the proper neutral party to which Morrissey referred, and, eventually, the Ohio or federal judiciary, rather than the individual parole officer. Further, while it is true that in Sweeney there was no showing that relief was unavailable in the demanding state, Reed has not made a showing that relief actually is unavailable in Ohio. Cf. Wright v. Ohio Adult Parole Authority, 75 Ohio St.3d 82, 661 N.E.2d 728 (1996) (evaluating a petition for a writ of mandamus to compel reinstatement of parole), cert. denied, — U.S. -, 117 S.Ct. 127, 136 L.Ed.2d 77 (1996); State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 652 N.E.2d 746, 748 (1995) (“[Hjabeas corpus will lie in certain extraordinary circumstances where there is an unlawful restraint of a person’s liberty____”); Kellogg v. Shoemaker, 46 F.3d 503, 510 (6th Cir.) (providing “prospective injunctive relief’ under 42 U.S.C. § 1983 for violation of procedural due process rights by the Ohio Parole Revocation procedures), cert. denied, 516 U.S. 839, 116 S.Ct. 120, 133 L.Ed.2d 70, cert. denied, 516 U.S. 907, 116 S.Ct. 274, 133 L.Ed.2d 195 (1995).
138. I do not mean to suggest that conclusive proof of a constitutional violation by a demanding state would be sufficient to create authority in the asylum state to deny extradition. Rather, I believe the ambiguous showing by Reed of a constitutional violation and the unavailability of remedies in Ohio illustrates the troublesome nature of investigating Ohio’s conduct without giving Ohio an opportunity to respond. See Sweeney, 344 U.S. at 89-90, 73 S.Ct. at 140-41. In addition, the complexity of Reed’s situation emphasizes the difficulty of undertaking such an inquiry in an asylum state. California, 482 U.S. at 417, 107 S.Ct. at 2443 (Stevens, J., dissenting) (“[A]n asylum state court’s inquiry may not reach the merits of issues that could be fully litigated in the charging State; such examinations entangle the asylum State’s judicial system in laws with which it is unfamiliar and endanger the summary nature of extradition proceedings.”). In short, Reed’s “self-help” cannot provide him with a remedy in a sister state that is otherwise unavailable. Sweeney, 344 U.S. at 89-90, 73 S.Ct. at 140 — 41. The Extradition Clause, as interpreted by the U.S. Supreme Court, serves as a barrier to an asylum state’s review of the past conduct of the demanding state and prevents speculation about future misconduct. Cf. Sweeney, 344 U.S. at 91, 73 S.Ct. at 141 (Frankfurter, J., concurring) (“We cannot assume unlawful action of the prison officials which would prevent the petitioner from invoking the aid of the local courts nor readily open the door to such a claim. Our federal system presupposes confidence that a demanding State will not exploit the action of an asylum state by indulging in outlawed conduct to a returned fugitive from justice.”) (citation omitted).
139. New Mexico simply lacks authority in our federal system of government to intercede on Reed’s behalf in an extradition proceeding for alleged potential violations of his right to due process of law by another state. The Supremacy Clause prevents us from applying New Mexico constitutional protections of due process and of seeking safety in violation of the U.S. Supreme Court’s interpretation of the Extradition Clause and its implementing legislation. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). Thus, the majority’s reliance on New Mexico’s protection of “seeking and obtaining safety,” NM Const, art. II, § 4, even if this provision contains a substantive protection, is misplaced in an extradition proceeding. The majority states that “Reed came to New Mexico explicitly for the purpose of ‘seeking and obtaining safety,’ ” Majority Opinion, ¶ 105, and the district court noted that Reed “wanted to seek sanctuary” in New Mexico. Reed v. Ortiz, No. 94-1 CR Misc., 1995 WL 118952, at *6-7 (N.M.Dist.Ct. Jan. 20, 1995). These statements clarify the issue involved; Reed does not contest, at least primarily, the technical validity of Ohio’s request for extradition, but rather, he desires political asylum in a sister state from alleged constitutional abuses or potential abuses by Ohio. This is precisely the type of conflict between states that the Extradition Clause seeks to prevent. See Doran, 439 U.S. at 287, 99 S.Ct. at 534.
140. As “Great” a writ as habeas corpus is, we may not issue the writ in excess of our authority. See Sweeney, 344 U.S. at 90, 73 S.Ct. at 140. Our powers as a sovereign state are not unlimited, and we may not ignore the restraints imposed by the federal Constitution. Even though the majority concludes that Reed is not a fugitive, because of Ohio’s actions precipitating his flight from Ohio, I am not persuaded we can review the constitutionality or propriety of Ohio’s actions without exceeding New Mexico’s authority in extradition matters.
II.
141. Nonetheless, under the facts presented, I would not allow Reed to be extradited to Ohio. Under Doran, the demanding state must demonstrate to the asylum state that there is probable cause for the arrest of the accused.
The magistrate or justice of the peace before whom the criminal charge is filed must issue an arrest warrant if it is determined that there is reasonable cause to believe that an offense has been committed. The inquiry the judicial officer is required to make is directed at the traditional determination of reasonable grounds or probable cause.
Doran, 439 U.S. at 289, 99 S.Ct. at 535 (footnote omitted). In fact, the holding in Doran was partially based on the judicial determination “that there was ‘reasonable cause to believe that such offense(s) were committed and that the accused committed them.’ ” Doran, 439 U.S. at 289, 99 S.Ct. at 535.
142. The usage of “probable cause” clearly suggests the influence of the Fourth Amendment in the Supreme Court’s analysis. Doran, 439 U.S. at 294-296, 99 S.Ct. at 538-539 (Blackmun, J., concurring); Brown v. Nutsch, 619 F.2d 758, 763 n. 6 (8th Cir.1980) (stating that the probable cause requirement “may be founded in the Fourth Amendment, as well as in the Extradition Clause and statute”);, cf. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975) (requiring “a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest” under the Fourth Amendment). “The extradition process involves an ‘extended restraint of liberty following arrest’ even more severe than that accompanying detention within a single state.” Doran, 439 U.S. at 296, 99 S.Ct. at 539 (Blackmun, J., concurring). Therefore, asylum states have a duty to ensure that probable cause exists in order to justify the restraint on the accused’s liberty. See Crew v. State, 40 Conn.Supp. 179, 486 A.2d 664, 666 (1984) (“When the liberty of a person is being infringed upon when he is forcibly removed from one state to another, a judicial finding of probable cause is demanded”).
143. Although parolees do not enjoy the absolute liberty of a criminal defendant not yet convicted, the U.S. Supreme Court has found a conditional liberty not to be re-institutionalized unless the parolee violates the conditions of parole. See Morrissey, 408 U.S. at 480-82, 92 S.Ct. at 2599-2601' (“By whatever name, the liberty is valuable and must be seen as within-the protection of the Fourteenth Amendment.”). The Supreme Court found significant state and societal interests in “restoring [the parolee] to normal and useful life within the law” and determined that arbitrary parole revocation constituted a serious impediment to such a goal. Morrissey, 408 U.S. at 483-84, 92 S.Ct. at 2601-02. As a result, the Supreme Court found a constitutional right to a preliminary hearing to determine whether probable cause exists to believe the parolee violated the conditions of parole in order to justify extended incarceration pending a final parole revocation hearing. See Morrissey, 408 U.S. at 485-86, 92 S.Ct. at 2602-03; accord Young v. Harper, 520 U.S. 143, - - -, 117 S.Ct. 1148, 1151-54, 137 L.Ed.2d 270 (1997) (concluding that preparóle is sufficiently similar to parole to require the protections articulated in Morrissey).
144. While a parolee may be temporarily detained prior to the preliminary hearing, see Moody, 429 U.S. at 85-89, 97 S.Ct. at 277-80, the Fourteenth Amendment requires a finding of probable cause in order to justify prolonged or substantial confinement. Morrissey, 408 U.S. at 487, 92 S.Ct. at 2603 (“Such a determination would be sufficient to warrant the parolee’s continued detention and return to the state correctional institution pending the final decision.”).1 Thus, for purposes of extradition for a parolee, a clear example of an “extended restraint” of a parolee’s conditional liberty, an asylum state must confirm that the demanding state has made a determination of probable cause for a parole violation. However, due to the nature of parole and the lesser protection of conditional liberty, the probable cause determination need not be made by a judicial officer. Rather, in accordance with Morrissey, a neutral administrative authority may find probable cause after an informal hearing about which the accused is entitled to notice and in which there must be an opportunity for the accused to present evidence and confront witnesses. Morrissey, 408 U.S. at 485-87, 92 S.Ct. at 2602-03. If the demanding state has made such a determination, then “the courts of the asylum state are without power to review the determination.” Doran, 439 U.S. at 290, 99 S.Ct. at 536. However, “the asylum state need not grant extradition unless that determination has been made. The demanding state, of course, has the burden of so demonstrating.” Doran, 439 U.S. at 296, 99 S.Ct. at 539 (Blackmun, J., concurring).
145. Unlike the factual issue of fugitivity, Parks v. Bourbeau, 193 Conn. 270, 477 A.2d 636, 641 n. 9 (1984) (“The inquiry whether a plaintiff is a fugitive from justice is one of fact which is to be resolved by the governor of the asylum state.”), the issue of whether a determination of probable cause has been made by the demanding state is a question of law. Roberts v. Reilly, 116 U.S. 80, 95, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885) (stating that the issue of fugitivity is one of fact while that of charging is one of law “and is always open upon the face of the papers to judicial inquiry, on application for a discharge under a writ of habeas corpus.”); Parks, 477 A.2d at 640-41 (“[T]he requisite that one must be ‘substantially charged’ requires that the charge be based upon ‘probable cause’ [and] ... is [a question] of law.”). As a result, the district court’s determination that probable cause existed as to the parole violation will be reviewed de novo. See Duncan v. Kerby, 1993 NMSC 011, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (applying this standard to the review of a lower court’s grant or denial of a writ of habeas corpus). The district court’s conclusion that Reed had been substantially charged with a crime in Ohio did not include a finding of any determination of probable cause. Reed v. Ortiz, No. 94-1 CR Misc., 1995 WL 118952, at *4 (N.M.Dist.Ct. Jan. 20, 1995). In addition, the district court did not address whether Ohio had conducted a preliminary hearing in accordance with Morrissey. Under de novo review, the district court’s finding cannot withstand scrutiny.
146. Ohio has not carried its burden of demonstrating that it made a determination that probable cause existed to believe that Reed violated the conditions of his parole. According to the record, “[t]he Superintendent of Parole Supervision ... brought information to the attention of the Adult Parole Authority that [Reed] has violated the terms and conditions of his parole____” Special Minutes of the State of Ohio Adult Parole Authority, March 23, 1993. In addition, Reed “will be charged with absconding supervision, failing to follow instructions of parole officer, leaving the state without prior written permission, failing to report his arrest, and involving himself in further criminal activity.” Jill D. Goldhart Aff. (October 3, 1994) (emphasis added). There is neither an explicit finding of probable cause nor sufficient information provided to show that a probable cause determination has been made.2 In fact, the future tense used by the Ohio officials necessarily implies that there has been no such determination. In any case, for parolees, the determination of probable cause must be made in a preliminary hearing, and Ohio’s documentation demonstrates that there has been no hearing. Jill D. Goldhart Aff. (October 3,1994) (“Reed will be returned to Ohio for a parole violation on-site hearing.”).
HI.
147. In response to Ohio’s failure to make a probable cause determination, I would normally favor a remand to the district court to make this determination independently before allowing the extradition of a parolee, see Ex Parte Sanchez, 642 S.W.2d 809, 811-12 (Tex.Crim.App.1982) (“[W]e find no prohibition in Michigan v. Doran ... that would preclude a neutral judicial officer of this State from making this [probable cause] determination.”), or a denial of extradition pending Ohio’s determination of probable cause. However, I believe the length of time Reed was incarcerated without a preliminary hearing violates the requirement of holding a probable cause hearing “as promptly as convenient after arrest while information is fresh and sources are available.” Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. Therefore, I would affirm the district court’s grant of the writ of habeas corpus and deny extradition to Ohio.
148. Many courts have interpreted the promptness requirement contained in Morrissey, including the courts of Ohio. Some courts have interpreted Morrissey as setting a maximum number of days within which the hearing must be held. See, e.g., Luther v. Molina, 627 F.2d 71, 74-75 n. 3 (7th Cir.1980) (“Chief Justice Burger seemed to be contemplating an almost immediate hearing; ... It is possible that a ten day delay between detention and the preliminary hearing does not meet ... constitutional requirements.”); Gawron v. Roberts, 113 Idaho 330, 743 P.2d 983, 988-89 (App.1987) (applying the forty-eight-hour statutory requirement from the area of arrest as an analogy for interpreting the timeliness requirement of Morrissey); see also Hanahan v. Luther, 693 F.2d 629, 634 (7th Cir.1982) (“Three months has been mentioned in some cases as the outside limit of reasonableness.”). Other courts, relying on an analogy between a prompt hearing and a speedy trial, have applied the speedy trial balancing test articulated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). E.g., Hanahan, 693 F.2d at 634; Seebeck v. Zent, 68 Ohio St.3d 109, 623 N.E.2d 1195, 1197 (1993); Butenhoff v. Oberquell, 25 Wash.App. 149, 603 P.2d 1277, 1280 (1979). There are two relevant factors under the balancing test: (1) a court must determine the reasonableness of the delay based on the length of incarceration without a preliminary hearing, the reasons for the delay, and whether the parolee asserted the right to a timely hearing; and (2) a court must determine the prejudice to the parolee caused by the delay based on the policy of preventing oppressive prehearing incarceration, the minimization of anxiety of the parolee, and the potential impairment of the parolee’s defense to the alleged violation of parole. See Seebeck, 623 N.E.2d at 1197; see also State v. Manzanares, 1996 NMSC 028, 121 N.M. 798, 800-801, 918 P.2d 714, 716-17 (discussing the Barker analysis).
149. According to the record, Reed was arrested on October 27, 1994, and he was incarcerated in New Mexico without a preliminary hearing until the district court’s ruling on January 20, 1995, a period of almost three months. While a delay during the period of three days before Reed asserted his habeas corpus rights may have been reasonable in anticipation of a voluntary return, Ohio did not have a justifiable reason for keeping Reed incarcerated for two and one half months without a preliminary hearing during the habeas proceeding. Ohio could easily have provided notice to Reed of a hearing in Ohio and counsel at the hearing on his behalf. In addition, Reed asserted in the district court that Ohio had refused to give him a preliminary hearing, thereby notifying Ohio of his request for such a proceeding. It is doubtful that a delay damaged Reed’s defense considering the much more lengthy delay attributable to his voluntary behavior of leaving Ohio. However, Reed still suffered prejudice in such a lengthy, oppressive prehearing incarceration and from the heightened anxiety due to the alleged misconduct of the Ohio officials and his concern about future physical abuse. In Reed’s case, this delay was both unreasonable and prejudicial. Thus, Ohio could not now constitutionally hold a preliminary hearing for a probable cause determination. See Flenoy v. Ohio Adult Parole Authority, 56 Ohio St.3d 131, 564 N.E.2d 1060, 1063 (1990) (“If an unreasonably long period went by before a hearing either was granted or became necessary, the APA lost its right to revoke ... parole.”); see also Butenhoff, 603 P.2d at 1280 (reversing a parole revocation for an untimely hearing and reinstating parole). Therefore, I would affirm the district court.
IV.
150. I believe the analysis on which the majority opinion relies exceeds the limits imposed on our powers as an asylum state under the Extradition Clause of the U.S. Constitution. The U.S. Supreme Court has limited habeas corpus review in extradition proceedings to a narrow inquiry which includes neither substantive defenses nor a broad definition of fugitivity. Nonetheless, Reed, as a parolee, has a conditional liberty not to be incarcerated without probable cause, and Ohio must demonstrate a finding of probable cause in order to justify the extended restraint on Reed’s liberty involved in the extradition process. Because Ohio has not demonstrated a finding of probable cause and could not now hold a preliminary hearing, I would affirm the district court’s grant' of the writ of habeas corpus.
. It might be suggested that there should be a presumptive inference of probable cause based on the subsequent conviction of a parolee or the presence alone of a parolee in the asylum state without permission. See Morrissey, 408 U.S. at 490, 92 S.Ct. at 2604 ("[A] parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.”); Barton v. Malley, 626 F.2d 151, 159 (10th Cir.1980) (finding presence in another state without permission sufficient probable cause to believe parolee violated parole such that a preliminary hearing was not constitutionally required). Under such a notion, the Due Process Clause would not require a preliminary hearing for a determination of probable cause.
Under the conditional liberty addressed in Morrissey, this position has merit. However, Ohio requires a preliminary hearing to determine probable cause in Reed's situation. Ohio Admin. Code § 5120:1-1-18 (1979, prior to 1995 amendment). Further, in this hearing, Reed would be entitled to present relevant witnesses and documentary evidence, to be represented by counsel, to confront witnesses, and to present mitigating factors. See Section 5120:1-1-18(A); § 5120:1-1 — 18(H). Because Ohio would not presume probable cause and would grant a hearing on the merits for a determination of probable cause, Reed's increased level of conditional liberty as established by Ohio constitutionally may require a preliminary hearing for a determination of probable cause. Cf. Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (stating that “States may under certain circumstances create liberty interests which are protected by the Due Process Clause” and that such state actions are “generally limited to freedom from restraint”); Garcia v. Las Vegas Medical Center, 112 N.M. 441, 443-45, 816 P.2d 510, 512-14 (Ct.App.1991) (discussing the effect of state law on the requirements of procedural due process under the Fourteenth Amendment and concluding that procedural protections are wholly federal, while substantive interests established by state law may demand greater procedural protection by the Fourteenth Amendment); see also Brooks v. Shanks, 1994 NMSC 113, 118 N.M. 716, 720, 885 P.2d 637, 641 (“A state may create a liberty interest by establishing procedures that control how a deprivation of rights or privileges such as good-time credits may be imposed.”) (citing Wolff v. McDonnell, 418 U.S. 539, 546, 94 S.Ct. 2963, 2969, 41 L.Ed.2d 935 (1974)); State v. Chavez, 94 N.M. 102, 103-05, 607 P.2d 640, 641-43 (Ct.App.1979). "State law is relevant only insofar as federal rights are dependent on state law,” Garcia, 112 N.M. at 444, 816 P.2d at 513, and the conditional liberty of a parolee is entirely dependent on the limits of parole imposed by state law. Cf. DeLaurentis v. New Haven, 220 Conn. 225, 597 A.2d 807, 821 (1991) ("[A]n underlying conviction is recognized in this state as conclusive proof that there was probable cause for charges unless it is proven that the conviction was obtained through fraud, duress, or other unlawful means.”) (emphasis added). In light of the ambiguity of the federal constitutional requirements for the protection of Reed's conditional liberty, New Mexico should not be required to make an inference Ohio itself would not make. See Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600 (“[D]ue process is flexible and calls for such procedural protections the particular situation demands.”).
This result is not changed by Ohio Rev. Code Ann., Section 2967.15(B) (Banks-Baldwin 1994). Under Section 2967.15(B), a parolee who is convicted of a crime while on parole is not entitled to a preliminary hearing. However, Reed’s Kentucky conviction is not controlled by this statute for two reasons. First, although the Ohio statute is substantially similar to provisions held to be constitutional, see Kellogg v. Shoemaker, 46 F.3d at 508-09, this provision does not apply to Reed, in light of the Ex Post Facto Clause, U.S. Const. art. I, § 10, because he was convicted of his initial crime before October 6, 1994, the effective date of the statute. See Kellogg, 46 F.3d at 509-10 (holding the application of a similar rule of the Ohio Adult Parole Authority to violate the principles of ex post facto for those convicted of the initial crime before September 1, 1992, the effective date of the rule); Ohio Rev.Code Ann. § 2967.021 (Banks-Baldwin 1996) (discussing applicability of 1996 amendments). Second, Reed had not been convicted of the Kentucky offense at the time he was told to report to be arrested and, subsequently, declared to be a parole violator. As a result, Reed would have been entitled to a preliminary hearing on the matter in Ohio had he not fled the state. See Ohio Admin. Code § 5120:1 — 1—18(G)(1)(c) (requiring a probable cause hearing for one charged but not yet convicted of a new crime if the parolee has not been given a preliminary hearing on the new charge with notice that it serves as a substitute for a separate probable cause hearing). Therefore, Reed is entitled to a preliminary hearing to determine “whether or not there is probable cause or reasonable grounds to believe that [he] has committed an act which would constitute a violation of the conditions of release. ...” Section 5120:1-1-18(A).
. Because the documents neither explicitly nor implicitly demonstrate a finding of probable cause, the question of whether the documents must facially show a finding of probable cause need not be addressed. See Doran, 439 U.S. at 296, 99 S.Ct. at 539 (Blackmun, J., concurring) ("It is enough if the papers submitted by the demanding state in support of its request for extradition facially show that a neutral magistrate has made a finding of probable cause.”); compare Crew v. State, 40 Conn.Supp. 179, 486 A.2d 664, 666 (1984) ("Inferences ... are not sufficient. A judge should explicitly make the finding, not only to assure that he has focused on that requirement, but also so that the asylum state will know that the finding has been affirmatively made."), with White v. King County, 109 Wash.2d 777, 748 P.2d 616, 620-21 (1988) (inferring a finding of probable cause from an arrest warrant based on the statutory requirement of such for the issuance of a warrant), and In re Whitehouse, 18 Mass.App.Ct. 455, 467 N.E.2d 228, 230-31 (1984) (same).