United States v. Pleau

United States Court of Appeals
For the First Circuit
No. 11-1775
UNITED STATES OF AMERICA,
Appellee,
v.
JASON W. PLEAU
Defendant, Appellant.
__________
LINCOLN D. CHAFEE, in his capacity as
Governor of the State of Rhode Island,
Intervenor.
No. 11-1782
IN RE: JASON WAYNE PLEAU,
Petitioner.
__________
LINCOLN D. CHAFEE, in his capacity as
Governor of the State of Rhode Island,
Intervenor.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND and
PETITION FOR A WRIT OF PROHIBITION
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Boudin, Howard and Thompson, Circuit Judges.
Claire Richards, Executive Counsel, for intervenor.
William F. Cavanaugh, Daniel Ruzumna, Joshua A. Goldberg,
Jason S. Gould, Muhammad U. Faridi, Christopher M. Strong,
Catherine E. Geddes and Patterson Belknap Webb & Tyler LLP on brief
for National Governors Association and Council of State
Governments, Amici Curiae.
Matthew L. Fabisch on brief for the Stephen Hopkins Center for
Civil Liberties, Amicus Curiae.
Robert B. Mann, by appointment of the court, with whom Mann &
Mitchell, David P. Hoose, by appointment of the court, and Sassoon,
Turnbull & Hoose, were on supplemental brief for petitioner.
Anthony D. Mirenda, Daniel N. Marx, Jennifer S. Behr, Eric A.
Haskell, Foley Hoag LLP, Carolyn A. Mannis, Rhode Island ACLU,
Zachary L. Heiden, ACLU of Maine, Barbara A. Keshen, New Hampshire
Civil Liberties Union, Joshua L. Dratel, National Association of
Criminal Defense Lawyers, Juan F. Matos de Juan, Colegio de
Abogados de Puerto Rico, William Ramirez, ACLU of Puerto Rico, John
Reinstein, ACLU of Massachusetts, Judith H. Mizner, Office of the
Federal Defender, Prof. Andres Horwitz, Rhode Island Association of
Criminal Defense Lawyers, on brief for Rhode Island ACLU; ACLU of
Puerto Rico; ACLU of Maine; ACLU of Massachusetts; New Hampshire
Civil Liberties Union; Office of the Federal Defender for the
Districts of Rhode Island, Massachusetts and New Hampshire;
National Association of Criminal Defense Lawyers; Rhode Island
Association of Criminal Defense Lawyers; and Colegio de Abogados de
Puerto Rico, Amici Curiae.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief for
appellee.
May 7, 2012
OPINION EN BANC
BOUDIN, Circuit Judge. A federal grand jury indicted
Jason Pleau on December 14, 2010, for crimes related to the
September 20, 2010, robbery and murder of a gas station manager
making a bank deposit in Woonsocket, Rhode Island. 18 U.S.C. §§ 2,
1951(a) (robbery affecting commerce); id. § 1951(a) (conspiring to
do the same); id. § 924(c)(1)(A), (j)(1) (use of a firearm during
and in relation to a crime of violence resulting in death). The
federal prosecutor could seek the death penalty but that decision
depends on U.S. Attorney General approval after a lengthy process.
See, e.g., United States v. Lopez-Matias, 522 F.3d 150, 155 (1st
Cir. 2008).
Pleau was in Rhode Island state custody on parole
violation charges when the federal indictment came down, and is now
serving an 18-year sentence there for parole and probation
violations. To secure Pleau's presence in federal court, the
federal government invoked the Interstate Agreement on Detainers
Act ("IAD"), Pub. L. No. 91-538, 84 Stat. 1397 (1970) (codified as
amended at 18 U.S.C. app. 2 § 2). The IAD provides what is
supposed to be an efficient shortcut to achieve extradition of a
state prisoner to stand trial in another state or, in the event of
a federal request, to make unnecessary the prior custom of a
federal habeas action. See IAD art. I.
In this instance, Rhode Island's governor refused the IAD
request because of his stated opposition to capital punishment.
-3-
United States v. Pleau, No. 10-184-1S, 2011 WL 2605301, at *2 n.1
(D.R.I. June 30, 2011). The federal government then sought a writ
of habeas corpus ad prosequendum from the district court to secure
custody of Pleau--this being the traditional method by which a
federal court obtained custody. E.g., Carbo v. United States, 364
U.S. 611, 615-16, 618 (1961). Codifying common law practice, the
statute authorizing the writ empowers a federal court to secure a
person, including one held in state custody, where "necessary to
bring him into [federal] court to testify or for trial." 28 U.S.C.
§ 2241(c)(5).
Pursuant to the habeas statute, the federal district
court in Rhode Island ordered Pleau to be delivered into federal
custody to answer the federal indictment. Pleau, 2011 WL 2605301,
at *4. Pleau both appealed and, in the alternative, petitioned
this court for a writ of prohibition to bar the district court from
enforcing the habeas writ. A duty panel of this court, over a
dissent, stayed the habeas writ, and an expedited appeal followed
in which the Rhode Island governor was granted belated
intervention. Ultimately, the same panel, again over a dissent,
held in favor of Pleau and the governor.
On petition of the federal government, the full court
granted rehearing en banc; the en banc court vacated the panel
decision but left the stay in effect until resolution of the en
banc proceeding. We consider first the propriety of review of the
-4-
district court's grant of the writ given that the federal criminal
case against Pleau remains pending. Piecemeal appellate review of
trial court decisions is--with few, narrowly interpreted
exceptions--not permitted, especially in criminal cases. United
States v. Kane, 955 F.2d 110, 110-11 (1st Cir. 1992) (per curiam).
Nevertheless, we need not wander into the thicket of
Pleau's own debatable standing to appeal from a writ merely
commanding his presence to answer criminal charges,1 nor explore
the possible use of the "collateral order" doctrine to rescue the
interlocutory appeal. Governor Chafee, in an order not disturbed
by the grant of the en banc rehearing petition, was allowed to
intervene. And as a party to the case, he is entitled to argue for
an advisory writ of prohibition, which suffices to bring the merits
of the dispute to us for resolution.
While writs of mandamus and prohibition--two sides of the
same coin with interchangeable standards, United States v. Horn, 29
F.3d 754, 769 n.18 (1st Cir. 1994)--are generally limited to
instances of palpable error threatening irreparable harm, e.g., In
re Pearson, 990 F.2d 653, 656 & n.4 (1st Cir. 1993), "advisory
mandamus" is available in rare cases; the usual requisites are that
1
E.g., Weekes v. Fleming, 301 F.3d 1175, 1180 n.4 (10th Cir.
2002), cert. denied, 537 U.S. 1146 (2003); Weathers v. Henderson,
480 F.2d 559, 559-60 (5th Cir. 1973) (per curiam); Derengowski v.
U.S. Marshal, Minneapolis Office, Minn. Div., 377 F.2d 223, 223-24
(8th Cir.), cert. denied, 389 U.S. 884 (1967); United States v.
Horton, No. 95-5880, 1997 WL 76063, at *3 (4th Cir. Feb. 24, 1997)
(per curiam) (unpublished).
-5-
the issue be an unsettled one of substantial public importance,
that it be likely to recur, and that deferral of review would
potentially impair the opportunity for effective review or relief
later on. Horn, 29 F.3d at 769-70.
A state's refusal to honor a federal court writ is surely
a matter of importance; and, if they could, states would certainly
mount more such challenges. Whether Pleau would be prejudiced if
review now were refused is less clear; but the governor could
hardly obtain meaningful relief following a federal conviction of
Pleau. And neither the federal government nor the other parties
dispute that the issue can be considered on advisory mandamus. So
we turn to the merits, which present two interrelated but
sequential questions.
The first is whether the IAD statute precludes the
federal government's use of the habeas writ, after a detainer has
been filed and an initial IAD request has been rejected, to convert
a request into a command. The second question is whether in such
a case the habeas statute compels the state governor to deliver the
prisoner or whether compliance is merely a matter of comity that
the governor may withhold. This is the way the Supreme Court
structured the issues in United States v. Mauro, 436 U.S. 340(1978), which resolves the first question and frames the second in
a way that clearly dictates the answer.
-6-
Of two different federal appeals disposed of by Mauro,
only one is directly pertinent to Pleau. The federal government
invoked the IAD by lodging a detainer with state prison authorities
so that the defendant charged with federal crimes would not be
released without notice; and the prosecutor then summoned the
defendant from state prison by habeas writ, first for arraignment
and (after many postponements) then for trial. The defendant
objected that he was being denied the speedy process required by
Article IV(c) of the IAD. 436 U.S. at 345-48.
After the defendant's federal conviction, the circuit
court held that the deadlines prescribed by the IAD had been
breached, requiring (under explicit provisions of the IAD)
dismissal of the federal indictment with prejudice. The Supreme
Court agreed, saying that the detainer had triggered the IAD and
that the habeas writ comprised a "written request" for initiating
a transfer contemplated by Article IV of the IAD. Mauro, 436 U.S.
at 361-64. That the writ had been used as part of the IAD process
did not negate the IAD's express time limitations and sanction for
ignoring them. Id.However, Mauro went on to reject the suggestion that, if
the Court upheld the time limit on the IAD proceeding, a state
governor could in some other case frustrate a writ of habeas corpus
by refusing to surrender a prisoner to federal court. Instead, the
Court distinguished between the time limits of Article IV(c)
-7-
triggered by the detainer and Article IV(a)'s reservation of the
governor's power to withhold consent. Mauro, 436 U.S. at 363-64.
The time limits, it said, had been accepted by the federal
government when it invoked the IAD procedures. Id. at 364.
By contrast, the Court held, the consent reservation
merely preserved for holding states any pre-existing authority they
had to refuse requests, Mauro, 436 U.S. at 363 & n.28; it did not
curtail whatever authority the habeas writ traditionally gave the
federal court to insist on the production of a defendant contrary
to the wishes of the state. The Court responded to the federal
government's concern that a decision in favor of Mauro would allow
a governor to refuse a habeas writ:
We are unimpressed. The proviso of Art. IV(a)
does not purport to augment the State's
authority to dishonor such a writ. As the
history of the provision makes clear, it was
meant to do no more than preserve previously
existing rights of the sending States, not to
expand them. If a State has never had
authority to dishonor an ad prosequendum writ
issued by a federal court, then this provision
could not be read as providing such authority.
Id. at 363 (internal footnote omitted and emphasis added).
This limiting passage was part of the Court's balanced
reading of the IAD and, in answering a substantive objection to the
Court's treatment of the IAD's time limits as binding on the
federal government, was not dicta but part of the Court's rationale
for its holding. And in saying that state authority to withhold
the prisoner was not augmented beyond whatever had existed before
-8-
the IAD, Mauro was saying that a habeas writ--even though it
followed a detainer--retained its pre-IAD authority to compel a
state to surrender a prisoner.
That Article IV(a)'s proviso was not intended to give
governors a veto power operative against the federal government is
borne out by a telling piece of background indicating that it was
concerned with the pre-IAD rules of extradition as between
individual states;2 the federal government, by contrast, proceeded
prior to the IAD not by extradition but by use of habeas. But the
proper construction of Article IV(a) is not open to debate here:
under Mauro, its proviso cannot be read as "providing . . .
authority" that the states had previously lacked. 436 U.S. at 363.
That "a state has never had authority to dishonor an ad
prosequendum writ issued by a federal court" is patent. Under the
Supremacy Clause, U.S. Const. art. VI, cl. 2, the habeas statute--
like any other valid federal measure--overrides any contrary
position or preference of the state, a principle regularly and
famously reaffirmed in civil rights cases, e.g., Cooper v. Aaron,
358 U.S. 1, 18-19 (1958); United States v. Barnett, 376 U.S. 6812
The report of the Council of State Governments, which drafted
the IAD and urged its adoption on the states and federal
government, Mauro, 436 U.S. at 350-51, explained: "The possibility
[of the Governor withholding consent] is left open merely to
accommodate situations involving public policy which occasionally
have been found in the history of extradition." Council of State
Gov'ts, Suggested State Legislation Program for 1957, at 79 (1956)
(emphasis added).
-9-
(1964), as in many other contexts, e.g., Washington v. Wash. State
Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695-96
(1979). State interposition to defeat federal authority vanished
with the Civil War.
Pleau and Governor Chafee cite a miscellany of old
circuit-court statements that a demand by a federal court for a
state prisoner depends upon comity,3 but these cases misread a 1922
Supreme Court case, Ponzi v. Fessenden, 258 U.S. 254, 260-62
(1922); Ponzi, referring generally to principles of comity, held
that the federal government through the Attorney General could
choose, as a matter of comity on its side, to deliver a federal
prisoner for trial on state charges. Id. at 262. Ponzi neither
held nor said that a state governor may invoke comity principles to
disobey a federal court habeas writ.
None of these circuit cases cited by Pleau and the
governor presented a litigated controversy between the United
States and a state over the enforcement of a federal writ. To the
extent not dicta or brief asides, such cases involved odd
situations such as attempts by federal criminal defendants to
obtain the presence of co-defendants held in state prisons. In all
events, these cases cite Ponzi (or other circuit cases relying on
3
See, e.g., McDonald v. Ciccone, 409 F.2d 28, 30 (8th Cir.
1969); Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.), cert.
denied, 320 U.S. 766 (1943); Lunsford v. Hudspeth, 126 F.2d 653,
655 (10th Cir. 1942).
-10-
Ponzi), which simply had nothing to do with a federal court's order
to a state.
The Supremacy Clause operates in only one direction and
has nothing to do with comity: it provides that Congress'
enactments are "the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding."
U.S. Const. art. VI, cl. 2. That there is an overriding federal
interest in prosecuting defendants indicted on federal crimes needs
no citation, and the habeas statute is an unqualified authorization
for a federal court to insist that a defendant held elsewhere be
produced for proceedings in a federal court.
This court earlier said that we were "confident that the
writ would be held enforcible" over a state's contrary preference.
United States v. Kenaan, 557 F.2d 912, 916 n.8 (1st Cir. 1977);
accord United States v. Graham, 622 F.2d 57, 59 (3d Cir.), cert.
denied, 449 U.S. 904 (1980); United States v. Bryant, 612 F.2d 799,
802 (4th Cir. 1979), cert. denied, 446 U.S. 919 (1980); Tranfy v.
United States, 311 F. App'x 92, 95-96 (10th Cir. 2009)
(unpublished).4 A contrary Second Circuit dictum, United States v.
4
Yet another circuit, while noting that Mauro's conditional
language left the ultimate issue open, observed: "We would have
thought that, under the Supremacy Clause, a state was not free to
delay or disapprove compliance with the writ executed under federal
statutory authority . . . ." United States v. Hill, 622 F.2d 900,
907 & n.18 (5th Cir. 1980).
-11-
Scheer, 729 F.2d 164, 170 (2d Cir. 1984), was properly described as
a misreading of Mauro. See id. at 172 (Kearse, J., concurring).
As a fallback, Pleau and Governor Chafee say that even if
today courts would all agree that the Supremacy Clause trumps a
state's refusal to honor the writ, Congress--to borrow a phrase--
"captured in amber" the misguided notion from old (but erroneous)
circuit precedent that honoring the federal writ is a matter of
state comity. There is, of course, nothing to suggest that
Congress was remotely aware of these decisions; and, as already
noted (see note 2, above), what legislative history exists shows
that the consent provision was concerned with one state's effort to
extradite a prisoner held by another and the possible need for
consent.
Even without such history, the construction offered fails
the test of common sense. One can hardly imagine Congress, whether
in approving the IAD or at any other time, empowering a state
governor to veto a federal court habeas writ--designed to bring a
federally indicted prisoner to federal court for trial on federal
charges--because the governor opposed the federal penalty that
might be imposed if a conviction followed. If we were now
determining Congress' intent afresh, the improbability of such an
intention would be apparent.
But, once again, this court cannot disregard Mauro and
and construe the consent provision as if it were an open issue;
-12-
canons of construction, interpretive rules for compacts, and
conjectures about whether Congress held mistaken views at the time of
the IAD's adoption are all beside the point. Mauro said that "[i]f
a State has never had authority to dishonor an ad prosequendum writ
issued by a federal court, then [the consent provision] could not be
read as providing such authority." 436 U.S. at 363. Given the
Supremacy Clause, the states have always lacked that authority.
Were Pleau and Governor Chafee to prevail, Pleau could be
permanently immune from federal prosecution, and the use of the
efficient detainer system badly compromised. He is currently serving
an 18-year term in Rhode Island prison and, if the writ were denied,
might agree to a state sentence of life in Rhode Island for the robbery
and murder.5 Even if Pleau served only his current 18-year term,
needed witnesses for federal prosecution could be unavailable two
decades from now. Instead of a place of confinement, the state prison
would become a refuge against federal charges. Mauro forbids such a
result.
The writ of prohibition is denied and the stay of the habeas
writ is vacated.
It is so ordered.
-Dissenting Opinion Follows-
5
See Brief for Amicus Curiae Governor Lincoln D. Chafee in
Support of Pet'r Ex. A (letter from Pleau to Rhode Island Assistant
Attorney General offering to plead to sentence of life without
parole on state charges).
-13-
TORRUELLA, Circuit Judge, with whom THOMPSON, Circuit
Judge, joins, dissenting. I am compelled to dissent because in
reaching its announced result, the majority fails to follow the
express terms of the Interstate Agreement on Detainers Act,6 snubs
the rules applicable to the enforcement of interstate compacts as
reiterated most recently by the Supreme Court,7 and compounds these
errors by misconstruing the holding in United States v. Mauro, 436
U.S. 340 (1978). As the Supreme Court has stated multiple times,
federal courts should not "'order relief inconsistent with [the]
express terms' of a compact, 'no matter what the equities of the
circumstances might otherwise invite.'" Alabama v. North Carolina,
130 S. Ct. 2295, 2313 (2010) (quoting New Jersey v. New York, 523
U.S. 767, 811 (1998)). Yet with its ruling, the majority has done
exactly what the Supreme Court said courts must not do: it has
ordered relief plainly inconsistent with the express terms of the
Interstate Agreement on Detainers ("IAD" or "Agreement") based on
its own misguided view of the equities of the circumstances of this
case.
There is no dispute that the United States is a party to
the IAD. Furthermore, the IAD's plain language and history make
clear that the United States is bound by all of its provisions.
6
Pub. L. No. 91-538, 84 Stat. 1397 (1970) (codified as amended
at 18 U.S.C. app. 2 § 2).
7
Alabama v. North Carolina, 130 S. Ct. 2295 (2010).
-14-
One of those provisions, Article IV(a), provides that a State may
request custody over a prisoner from another State by sending a
"written request for temporary custody or availability"; however,
Article IV(a) also gives the Governor of the State from which
custody is requested the right to refuse such a request. Under the
Supreme Court's holding in Mauro, once the United States (or any
other State) invokes the IAD by lodging a detainer against a
prisoner, any subsequently-filed writ of habeas corpus ad
prosequendum is treated as a "written request for temporary custody
and availability" under the IAD. See 436 U.S. at 351-52.
Applying the aforementioned principles to the facts of
this case, the proper result is clear. The United States invoked
the IAD when it lodged a detainer against Jason Wayne Pleau
("Pleau"). Because the United States invoked the IAD, the writ of
habeas corpus ad prosequendum granted by the district court must,
under Mauro, be treated as a request for custody under the IAD.
Therefore, the Governor of Rhode Island had the right under the IAD
to refuse the request. The majority avoids this result only by
manufacturing a Supremacy Clause issue where none exists and by
misinterpreting Mauro.
-15-
I.
There is no question that the IAD is an interstate
compact8 among the United States and 48 other States. "[E]ven the
Government concedes[] [that] the Agreement as enacted by Congress
expressly includes the United States within the definition of
'State.'" Mauro, 436 U.S. at 354. As further stated in Mauro,
"[t]he [IAD] statute itself gives no indication that the United
States is to be exempted from the category of receiving States. To
the contrary, [Article] VII states that 'this agreement shall
enter into full force and effect as to a party State when such
State has enacted the same into law.'" Id. at 354 (alterations
omitted). "[T]here is no indication whatsoever that the
8
As such it was enacted pursuant to the Compact Clause. U.S.
Const. art. I, § 10, cl. 3 ("No State shall, without the consent of
Congress . . . enter into any Agreement or Compact with another
State . . . ."). Congress originally granted its consent for
various States to enter into the IAD by enacting the Crime Control
Act of 1934, 48 Stat. 909. See Cuyver v. Adams, 449 U.S. 433, 441
(1981). In 1970, Congress caused the District of Columbia and the
United States itself to join the IAD by enacting the Interstate
Agreement on Detainers Act. See Mauro, 436 U.S. at 343. The
congressional approval of this interstate compact transformed the
compact into federal law. Cuyver, 449 U.S. at 438. An interstate
compact that requires congressional approval, such as the IAD,
needs this approval because consent by the United States must be
given before there can be an "encroach[ment] or interfer[ence] with
the just supremacy of the United States." Id. at 440 (citations
omitted). There should thus be no question that in entering into
the IAD as an equal "State," Mauro, 436 U.S. at 354, the United
States was, for purposes of the subject matter of the IAD,
relinquishing any superior sovereign rights that may have
preexisted the Agreement.
-16-
participation of the United States was to be a limited one." Id.
at 355.
The consequence of Congress's deliberate adoption of the
IAD is that "the United States is bound by the Agreement when it
activates its provisions by filing a detainer against a state
prisoner and then obtains his custody by means of a writ of habeas
corpus ad prosequendum." Id. at 349. In the present case, the
United States activated the provisions of the IAD -- and thus bound
itself to the IAD's terms -- by lodging a detainer against Pleau,
who at the time was serving an 18-year prison sentence in the
custody of the State of Rhode Island for parole violations. The
detainer filed by the United States was related to a federal
indictment issued for alleged federal crimes involving the same
acts that were the subject of state-law charges pending in Rhode
Island at the time.9
After lodging the detainer, the United States sent a
request for custody to Rhode Island. The Governor of Rhode Island,
9
Pleau is presently serving an 18 year sentence of
imprisonment for parole and probation violations in Rhode Island.
He agreed to plead guilty to the state crimes for which he was
charged and to accept a sentence of life imprisonment without the
possibility of parole. See Br. for Amicus Curiae Governor Lincoln
S. Chafee in Support of Pet'r, Ex. A (letter from Pleau to Rhode
Island Assistant Attorney General offering to plead to sentence of
life without parole on state charges). After Pleau agreed to the
plea and sentence, but before the United States first requested
custody of Pleau, the Rhode Island Attorney General dismissed the
charges against Pleau without prejudice. See Katie Mulvaney,
Faceoff Looms Over Suspect; Courts, Providence Journal, June 28,
2011, at 1.
-17-
Lincoln Chafee ("Governor Chafee" or the "Governor"), invoking his
authority under Article IV(a) of the IAD, refused to surrender
Pleau to the federal authorities. Governor Chafee cited state
public policy grounds for his rejection, namely Rhode Island's
longstanding opposition to the death penalty as an appropriate
punishment, a penalty to which Pleau would be exposed if convicted
on federal charges.
Undeterred by the Governor Chafee's refusal, the United
States then proceeded to attempt an end run around its commitments
under the IAD by seeking the production of Pleau pursuant to a writ
of habeas corpus ad prosequendum. The district court granted the
writ, but a duty panel of this court (with one dissent) stayed its
execution pending Pleau's appeal, and Governor Chafee later
intervened. The same panel (again with one dissent), pursuant to
advisory mandamus, issued a writ of prohibition enforcing Governor
Chafee's right to refuse to transfer Pleau. See United States v.
Pleau, 662 F.3d 1 (1st Cir. 2011).
The panel noted Mauro's holding that "'once a detainer
has been lodged' . . . 'it clearly would permit the United States
to circumvent its obligations under the [IAD] to hold that an ad
prosequendum writ may not be considered a written request for
temporary custody.'" Pleau, 662 F.3d at 10 (quoting Mauro, 436
U.S. at 362). Based on this clear statement from Mauro, the panel
held that
-18-
once the federal government has elected to
seek custody of a state prisoner under the
IAD, it is bound by that decision. Any
subsequent ad prosequendum writ is to be
considered a written request for temporary
custody under the IAD and, as such, subject to
all of the strictures of the IAD, including
the governor's right of refusal.
Pleau, 662 F.3d at 12.
As alluded to, the en banc majority rejects this outcome,
denies the writ of prohibition, and vacates the stay of the
execution of the habeas writ. The substance10 of the majority's
opinion is, first of all, that Mauro "reject[ed] the suggestion
that, if the Court upheld the time limit on the IAD proceeding
[under Article IV(c)], a state could in some other case frustrate
a writ of habeas corpus by refusing to surrender a prisoner to
federal court." Maj. Op. at 7. According to the majority's
opinion, the Court "merely preserved for the holding states any
pre-existing authority they had to refuse requests." Id. at 8.
The majority next contends that it "is patent" that Rhode Island
lacks authority "to dishonor an ad prosequendum writ issued by a
federal court . . . [by virtue of] the Supremacy Clause, U.S.
Const. art. VI, cl. 2." Id. at 9.11 The majority then posits a
10
For present purposes I deem it unnecessary to discuss the
preliminary and procedural matters referred to in the first five
pages of the majority's opinion.
11
The Supremacy Clause, U.S. Const. art. VI, cl. 2, provides:
"This Constitution, and the laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the
-19-
catch-all ratiocination, pursuant to which it concludes that Rhode
Island's arguments "fail[] the test of common sense," id. at 11.
Lastly, as a sequel to this argument, it proceeds to adopt the
Government's scenario of inevitable horribles which allegedly will
follow if the United States is made to comply with what it agreed
to as a signatory State under the IAD. Id. at 13.
With respect, I find all of these arguments flawed.
II.
We first turn to the Supremacy Clause argument, the
recurrent "Big Brother" argument that is used by the federal
government when it attempts to push its weight against the States.
In this case it is only one of several smoke screens behind which
the majority attempts to shield the weakness of the Government's
position, and it is the most baseless of all the reasons given for
overturning the panel opinion.
The majority states that "[u]nder the Supremacy
Clause . . . the habeas statute -- like any other valid federal
measure -- overrides any contrary position or preference of the
state . . . ." Maj. Op. at 9. However, this statement is a red
herring. Again, as recently stated by the Supreme Court in Alabama
v. North Carolina, "an interstate compact is not just a contract;
it is a federal statute enacted by Congress." 130 S. Ct. at 2312
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."
-20-
(emphasis added). See also n.3, ante. Thus, the issue presented
is not, as framed by the majority, one of conflict between a
federal law and Rhode Island's contrary position or preference.
Rather, because the IAD is a federal statute, just like the habeas
statute is a federal statute, the issue here is how two federal
statutes interact, a determination in which the Supremacy Clause
plays no part. That question is answered by reading both federal
laws and by determining, in the first place, whether there is any
conflict that arises from reading the plain language of each
statute. As will be presently discussed, there is nothing in the
habeas corpus statute as presently articulated, or any of its
predecessors going back to the Judiciary Act, that supercedes,
contravenes, or downgrades the provisions of the IAD vis-a-vis the
habeas corpus legislation.12
The federal habeas corpus writ was first authorized to be
issued by federal courts pursuant to Section 14 of the Judiciary
12
For this reason, the cases the majority refers to in which
the Supremacy Clause was invoked to enforce treaties or Federal
civil rights laws in the face of non-compliance by States are
completely inapposite. See Maj. Op. at 8-9. This is not a case
involving "State interposition to defeat federal authority." Id.
at 9. This is a case in which a State governor exercised a right
expressly given to him by federal law. As noted in the panel
majority opinion, "the federal government may 'waive the federal
sovereign's strict right to exclusive custody of a prisoner' in
favor of state custody." Pleau, 662 F.3d at 13 n.9 (quoting Poland
v. Stewart, 117 F.3d 1094, 1098 (9th Cir. 1997)). This is
precisely what the United States did by joining the IAD and
invoking it in Pleau's case. The Supremacy Clause is not even
implicated, much less violated, when the United States voluntarily
waives its right to custody in favor of a State.
-21-
Act of 1789.13 Since then habeas corpus practice has been
formalized into a singular federal statute, 28 U.S.C. § 2241 et
seq., which law has been amended on various occasions over the
years, the last major amendment taking place in 1996 as part of the
Anti-Terrorism and Effective Death Penalty Act.14 A perusal of
these federal acts, including through the present rendition of the
statute, reveals no text which would allow one to conclude that the
federal habeas corpus statute trumps any other federal statute,
particularly one enacted for specific application to specific
circumstances such as the IAD.
Although not directly relevant to the case before us, I
believe it is worth pointing out that the amendments to § 2254
enacted by Congress in 1996, which deal in part with the issuance
of habeas corpus writs by federal courts involving state prisoners,
considerably restricted the power of federal courts to act.15 This
13
See Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82
(1789) ("And be it further enacted, That all the before mentioned
courts of the United States, shall have power to issue writs of .
. . habeas corpus . . . .").
14
See Pub. L. 104-132 (1996). For a concise history of the
writ throughout its history since the Judiciary Act up to 1996, see
Carbo v. United States, 364 U.S. 611, 614-619 (1961).
15
Among the restrictions placed on the power of federal courts
to issue writs involving persons in state custody, the writ is not
to issue unless the state court proceedings "(1) resulted in a
decision that was contrary to, or involved, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in 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.
-22-
action clearly reflects Congress's concern16 with the issues raised
by the dual sovereignty that is the basis of our form of
government. See Fed. Maritime Comm'n v. S.C. State Ports Auth.,
535 U.S. 743, 751-52 (2002) ("Dual sovereignty is a defining
feature of our Nation's constitutional blueprint . . . ."). Even
in cases where the supremacy of federal legislation over a state
law is an issue, a situation which is clearly not in the case
before us, application of this principle requires a light touch,
not the overbearingness17 of a sledge hammer.18
16
See, e.g., Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir. 1996)
(Easterbrook, J.) (noting that with AEDPA "[Congress intended] to
move back in [the] direction" of limiting federal court habeas
review); Erwin Chemerinsky, Reconceptualizing Federalism, 50 N.Y.
L. Sch. L. Rev. 729, 731 (2005-2006) (citing to AEDPA as one of a
number of recent shifts towards States' rights). Cf. Wood v.
Milyard, -- U.S. --, No. 10-9995 (decided Apr. 24, 2012) (upholding
authority of State to waive statute of limitations defense under
AEDPA, and holding that "it is an abuse of discretion" by a Court
of Appeals "to override a State's deliberate waiver of a
limitations defense").
17
The majority opinion interjects a modicum of unnecessary
federal arrogance, one which unfortunately permeates this entire
controversy, when it states that "[t]he Supremacy Clause operates
only in one direction." Maj. Op. at 11.
18
We further digress to interject that the crimes Pleau is
alleged to have committed -- armed robbery and murder of a private
citizen on the way to making a deposit in the bank -- are
quintessential state crimes, and betray on their face no hint of
any uniquely federal interest. See United States v.
Jiménez-Torres, 435 F.3d 3, 13-15 (1st Cir. 2006) (Torruella, J.,
concurring) (objecting to the unwarranted extension of federal
criminal jurisdiction over traditionally state crimes). In the
present case, extending federal jurisdiction over a crime with at
most, de minimis impact on interstate commerce, is stretching that
concept beyond the bounds of Congress's constitutional power. Cf.
United States v. Lopez, 514 U.S. 549 (1995). Moreover, given that
-23-
Finding no specific language in any past or present
configurations of the habeas statute that informs us as to the
issues before us, we turn to the second, and central, federal
statute that concerns us, the IAD. This is a federal statute that
deals with a specific issue: the attainment by one sovereign State
of the body of a person in the custody or control of another
sovereign State. We are not disappointed in our search, for we
find relevant language within the four corners of this federal
statute regarding what happens when these issues come into play.
The pertinent part of this legislation, Article IV(a) of the IAD
specifically states:
[U]pon presentation of a written request for
temporary custody . . . to the appropriate
authorities of the State in which the prisoner
is incarcerated . . . there shall be a period
of thirty days after receipt by the
appropriate authorities before the request be
honored, within which period the Governor of
the sending State may disapprove the request
for temporary custody or availability, either
upon his own motion or upon motion of the
prisoner.19
Pleau has already agreed to plead guilty to state crimes and to a
life sentence without possibility of parole, it is frankly unclear
what it is that the federal government hopes to gain by its
overkill. This is particularly manifest in light of the truly
extraordinary costs that will have to be invested by the federal
government if it continues to pursue this capital litigation,
something that in these times of economic restraint seems unduly
wasteful of limited resources.
19
18 U.S.C. app. § 2 (2012).
-24-
We need go no further, for there is nothing equivocal in
this language nor is there anything else in this federal statute
which contravenes or dilutes the discretion that Congress has
granted to a State Governor pursuant to this interstate agreement,
one which the United States joined as a co-equal "State."20 See
Mauro, 436 U.S. at 354.
The United States became unequivocally bound by all of
the provisions of the IAD upon its filing of a detainer against
Pleau with the Rhode Island authorities. See id. at 349. These
provisions include a grant, by the United States to the other
signatory States, of the right to refuse a request for custody.
There is nothing in the express language of the IAD, or its
legislative history, to indicate that the grant of rights agreed to
20
A comprehensive view of the IAD confirms that the United
States is a coequal State for purposes of Article IV(a). Congress
amended the IAD after Mauro to add specific exceptions treating the
United States differently from other parties with respect to some
parts of the IAD, but not article IV(a). See Pub. L. No. 100-960,
Title VII, § 7059, 102 Stat. 4403 (1988) (codified at 18 U.S.C.
app. 2 § 9). For example, Section 9 of the IAD, "Special
Provisions When the United States is a Receiving State," states
that a dismissal of "any indictment, information or complaint may
be with or without prejudice" when the United States is a receiving
state. 18 U.S.C. app. 2 § 9(1). In contrast, when any other party
to the IAD is a
receiving State, such a dismissal "shall" be with prejudice. Id.
§ IV(e). Section 9 does not indicate that the United States can
disregard or override a sending State's denial of its request for
temporary custody. And aside from Section 9's enumerated
exceptions, Congress has stuck with the IAD's definition of the
United States as a "State" on the same footing as other receiving
states. See Mauro, 436 U.S. at 354; see also 18 U.S.C. app. 2 § 2
art. II.
-25-
by the United States with Congress' approval, id. at 353-55, is
trumped in any way by other federal statutes, including the habeas
corpus statute. Thus, we proceed to discuss the majority's
interpretation of the Supreme Court's holding in Mauro, an
interpretation which inevitably leads them to their erroneous
conclusions.
III.
As is true with most cases, Mauro cannot be read by
isolating those parts that may conveniently support a predestined
point of view. Properly considered, a case needs to be read and
analyzed in all its parts and in a coordinated fashion.
Unfortunately, this the majority fails to do.
In Mauro, the Supreme Court had before it two related
cases, both of which have relevance to the present appeal because
they establish "the scope of the United States' obligations under
the [IAD]." Id. at 344. In the first of these cases, Case No.
76-1596, the question presented was whether a writ of habeas corpus
ad prosequendum constituted a "detainer" under the IAD, whose
filing with state authorities triggered the application of the
provisions of that statute. Id. Respondents Mauro and Fusco were
serving state sentences in New York's penal system when the U.S.
District Court for the Eastern District of New York issued ad
prosequendum writs directing the state prison authorities to turn
them over to the federal authorities. Id. Mauro and Fusco were
-26-
arraigned in federal court and entered pleas of not guilty to the
relevant charges. Id. Their trial was delayed, and because of
overcrowding in federal facilities, they were returned to state
custody. Id. at 344-45. Both respondents were later returned to
federal custody pursuant to new ad prosequendum writs, but not
before they had filed motions to dismiss the federal indictments,
alleging that the United States had violated Article IV(e) of the
IAD by returning them to state custody without first trying them on
the federal indictment.21 The district court granted the motions,
ruling that the ad prosequendum writs were in effect detainers,
whose filing by the United States triggered application of the
provisions of the IAD, Article IV(e) of which required dismissal of
the indictment. Id. at 345. This decision was affirmed by the
Court of Appeals for the Second Circuit. 544 F.2d 588 (2d Cir.
1976).
In the second case, No. 77-52, the respondent, Ford, was
arrested in Chicago on two federal warrants. Ford was turned over
to state authorities in Illinois for extradition to Massachusetts
on unrelated Massachusetts state charges. Mauro, 436 U.S. at 345-
46. At this point Ford requested a speedy trial on federal charges
pending in the Southern District of New York, sending letters to
21
Article IV(e) requires dismissal of an indictment against a
prisoner who is obtained by a receiving State, if he is returned to
his original place of imprisonment without being tried on the
indictment underlying a detainer by which custody was secured. 18
U.S.C. app. § 2 (2012).
-27-
this effect to the District Court and the U.S. Attorney for that
District. Id. at 346. After Ford was transferred to
Massachusetts, the U.S. Attorney in New York lodged a detainer with
Massachusetts state officials. Ford was found guilty at his trial
on the Massachusetts state charges. Thereupon, Massachusetts
produced Ford in the U.S. District Court for the Southern District
of New York pursuant to an ad prosequendum writ. Id. After Ford
pled not guilty to the federal charges, his trial date was
sequentially postponed for 17 months at the government's or court's
initiative. At some point Ford formally moved for dismissal of the
federal charges on constitutional speedy trial grounds, which
motion was denied by the district court. Id. In the meantime Ford
had been returned to Massachusetts, where he remained until he was
returned to New York for trial pursuant to another ad prosequendum
writ. Id. at 347.
At the beginning of the trial Ford renewed his motion to
dismiss on speedy trial grounds, which claim was again rejected by
the district court. Id. He was found guilty, whereupon he
appealed, alleging violation of Article IV(e) of the IAD because he
was not tried within 120 days of his initial arrival in the
Southern District of New York. Id. at 347-48. The Second Circuit
reversed the conviction and dismissed the indictment, 550 F.2d 732(2d Cir. 1977), holding: (1) that since the government had filed a
detainer, thus triggering the provisions of the IAD to which the
-28-
government was a party, (2) the subsequent ad prosequendum writ
constituted a "written request for temporary custody" under Article
IV(a) of the IAD, (3) which required that trial be commenced within
120 days of the prisoner's arrival in the receiving state, and
therefore (4) the delay in trial mandated dismissal of the federal
charges. See Mauro, 436 U.S. at 348.
The Supreme Court granted certiorari in both cases, which
were consolidated for the purpose of considering "whether the
Agreement governs use of writs of habeas corpus ad prosequendum by
the United States to obtain state prisoners." Id. at 349 (emphasis
added). The Court held "[i]n No. 76-1596 . . . that such a writ
. . . is not a detainer within the meaning of the Agreement and
thus does not trigger the application of the Agreement." Id.(emphasis added). However, the Court then ruled "in No. 77-52
. . . that the United States is bound by the Agreement when it
activates its provisions by filing a detainer against a state
prisoner and then obtains his custody by means of a writ of habeas
corpus ad prosequendum." Id. (emphasis added).
Given this clear statement, I cannot fathom how a serious
argument can be made that the United States is not fully bound by
all the provisions of the IAD. Indeed, the Court in Mauro
specifically rejected the argument that the United States "became
a party to the [IAD] only in its capacity as a 'sending State.'"
Id. at 353-54. As the Court emphasized:
-29-
The statute itself gives no indication that
the United States is to be exempted from the
category of receiving States. To the
contrary, Art. VIII states that "[t]his
agreement shall enter into full force and
effect as to a party State when such State has
enacted the same into law."
Id. at 354 (emphasis in the original). Referring to the IAD's
"brief legislative history," the Court noted that "there is no
indication whatsoever that the United States' participation in the
Agreement was to be a limited one." Id. at 355.22
Having clearly established that the United States is
bound by all terms of the IAD, the Court then proceeded to consider
this question: under what circumstances is the IAD invoked, such
that the United States becomes bound by its terms? The Court
answered this question straightforwardly: "Once the Federal
Government lodges a detainer against a prisoner with state prison
officials, the Agreement by its express terms becomes applicable
and the United States must comply with its provisions." Id. at
361-62 (emphasis added). The Court then made clear that once the
IAD has been invoked, what is ostensibly an ad prosequendum writ is
treated as a "request for temporary custody" under the IAD:
22
In fact, neither Senator Roman Hruska (R. Neb.), who
commented briefly in favor of the passage of the IAD, "nor anyone
else in Congress drew a distinction between the extent of the
United States' participation in the Agreement and that of the other
member States, an observation that one would expect had the Federal
Government entered into the Agreement as only a sending State."
Id.-30-
[O]nce a detainer has been lodged, the United
States has precipitated the very problems with
which the Agreement is concerned. Because at
that point the policies underlying the
Agreement are fully implicated, we see no
reason to give an unduly restrictive meaning
to the term "written request for temporary
custody." It matters not whether the
Government presents the prison authorities in
the sending State with a piece of paper
labeled "request for temporary custody" or
with a writ of habeas corpus ad prosequendum
demanding the prisoner's presence in federal
court on a certain day; in either case the
United States is able to obtain temporary
custody of the prisoner. Because the detainer
remains lodged against the prisoner until the
underlying charges are finally resolved, the
Agreement requires that the disposition be
speedy and that it be obtained before the
prisoner is returned to the sending State. The
fact that the prisoner is brought before the
district court by means of a writ of habeas
corpus ad prosequendum in no way reduces the
need for this prompt disposition of the
charges underlying the detainer. In this
situation it clearly would permit the United
States to circumvent its obligations under the
Agreement to hold that an ad prosequendum writ
may not be considered a written request for
temporary custody.
Id. at 362 (emphasis added).
We thus come to the crux of the majority's interpretation
of Mauro, which requires, according to its views of that case and
the IAD, the rejection of Governor Chafee's contentions23 that: (1)
the filing of a detainer by the United States triggered the right
of Governor Chafee under Article IV(a) to refuse to surrender a
23
Since Pleau's arguments are essentially identical to Governor
Chafee's, we will refer to them as Governor Chafee's arguments.
-31-
prisoner within 30 days of a request for custody; and (2) allowing
the United States to circumvent this provision by seeking the
production of the prisoner by the use of a subsequent ad
prosequendum writ in effect voids that statutory provision and
renders ineffective an important right in the Agreement. The
majority's view of Mauro rests, at least partially, on its
statement that "Mauro . . . reject[ed] the suggestion that, if the
Court upheld the time limit on the IAD proceeding, a state governor
could in some other case frustrate a writ of habeas corpus by
refusing to surrender a prisoner to federal court." Maj. Op. at
6. There is simply no backing in Mauro, or elsewhere, for this
contention.
The majority claims that "the Court distinguished between
the time limits of Article IV(c) triggered by the detainer and
Article IV(a)'s reservation of the governor's power to withhold
consent." Maj. Op. at 7-8 (citing Mauro, 436 U.S. at 363-64). It
is true that the particular circumstances of Mauro implicated the
IAD's time limit provisions. However, nothing in Mauro suggests
that the Court's holding is limited such that an ad prosequendum
writ is treated as a "written request" for Article IV(c) purposes
but not for Article IV(a) purposes. The majority contends that
such a limiting principle is found in the passage from Mauro that
it quotes on p. 8: "We are unimpressed . . . .," Mauro, 436 U.S. at
363. Yet when one reads and analyzes what was actually stated by
-32-
the Court in the cited passage, it becomes clear that the
majority's reading of it is wrong.
To understand the true meaning of this passage, we must
first read it in its full context. The Mauro court first stated
its conclusion that "it clearly would permit the United States to
circumvent its obligations under the Agreement to hold that an ad
prosequendum writ may not be considered a written request for
temporary custody." 436 U.S. at 362. Then, in the next paragraph
of the opinion, the Court addressed some of the arguments the
Government had raised in opposition to the conclusion the Court had
just announced. It is in this context that the passage in question
appears:
The Government points to two provisions of the
Agreement which it contends demonstrate that
"written request" was not meant to include ad
prosequendum writs; neither argument is
persuasive. First, the government argues that
under Article IV(a) there is to be a 30-day
waiting period after the request is presented
during which the Governor of the sending State
may disapprove the receiving State's request.
Because a writ of habeas corpus ad
prosequendum is a federal-court order, it
would be contrary to the Supremacy Clause, the
United States argues, to permit a State to
refuse to obey it. We are unimpressed. The
proviso of Art. IV(a) does not purport to
augment the State's authority to dishonor such
a writ. As the history of the provision makes
clear, it was meant to do no more than
preserve previously existing rights of sending
States, not to expand them. [Fn. 28. Both
Committee Reports note that "a Governor's
right to refuse to make a prisoner available
is preserved . . . ." The Council of State
-33-
Governments discussed the provision in similar
terms: "[A] Governor's right to refuse to make
the prisoner available (on public policy
grounds) is retained.] If a State never had
authority to dishonor an ad prosequendum writ
by a federal court, then this provision could
not be read as providing such authority.
Accordingly, we do not view the provision as
being inconsistent with the inclusion of writs
of habeas corpus ad prosequendum within the
meaning of "written requests."
Id. at 363 (bold emphasis added; underlined emphasis in original)
(internal citations omitted).
When the passage is read in context, its meaning is
plain. The Court did not say that it was "unimpressed" with the
possibility that a state could disobey an ad prosequendum writ that
was treated as a request for custody under the IAD. Instead, the
Court said it was "unimpressed" with the Government's argument,
which was that treating an ad prosequendum writ as a request for
custody under the IAD, pursuant to which the state could refuse to
obey, would create a Supremacy Clause problem. The Court was
"unimpressed" with the Government's argument because Article IV(a)
did not expand the rights of the states in this respect but merely
"preserved" and "retained" previously existing rights of a Governor
"to refuse to make the prisoner available (on public policy
grounds)." Id. at 363 n.28.24 Since treating an ad prosequendum
24
As noted by the majority, see Maj. Op. at 9 n. 2, the report
of the Council of State Governments states the following: "The
possibility [of the Governor withholding consent] is left open
merely to accommodate situations involving public policy which
occasionally have been found in the history of extradition"
-34-
writ as a written request did not expand States' rights in any way,
it could not have implicated the Supremacy Clause in any way.
Moreover, if anything, the statement regarding the
possibility of dishonoring of the writ by State authorities is
patently conditional, and not a statement as to the actual state of
the law. "If" there was no pre-existing right to refuse, then
Article IV(a) did not create it.25 Id. at 363 (emphasis added).
However, as the Court specified and emphasized in Footnote 28,
which immediately precedes this conditional "if," the Governor's
right to refuse to make the prisoner available was "preserved" and
"retained". Id. at 363 n.28 (emphasis in original).
The United States's interpretation of Article IV(a), as
adopted by the majority, would balkanize that provision. According
to that view, the Government would be bound by Mauro as to what is
meant by "written request for temporary custody" once a detainer
(citation omitted). The majority suggests that because public
policy considerations had in the past arisen in the extradition
context, a state's right of refusal was limited to that context.
However, the Supreme Court in Mauro apparently deemed the
extradition context irrelevant, as neither the Court's discussion
nor its quote from the Council report mentions extradition. This
makes sense: just because public policy considerations had arisen
in the extradition context does not justify limiting a state's
right of refusal to the extradition context.
25
This conditional language was used because there was no issue
before the Court in Mauro regarding a refusal by a governor to turn
over a state prisoner, much less a refusal to turn over a state
prisoner upon the filing of a detainer, and thereafter attempting
to circumvent a governor's refusal by using a habeas writ. Thus,
the majority's claim that Mauro decides this issue against Pleau
and Governor Chafee contentions is unsustainable.
-35-
has been filed with the state authorities, but would be free to
disregard those other parts of Article IV(a) that it now finds
inconvenient to follow. Such an unprincipled reading of the IAD
and Mauro is not only unwarranted and unprecedented, but borrowing
from the majority, "fails the test of common sense." Maj. Op. at
12.26
IV.
The majority takes the position it does because it fears
that "[w]ere Pleau and Governor Chafee to prevail, Pleau could be
permanently immune from federal prosecution, and the use of the
26
In fact, the Mauro Court was well aware of the danger of
allowing the government to pick and choose which parts of the IAD
it wanted to obey. This is made clear by the manner in which the
Court rejected the second of the two arguments that the government
had raised against treating an ad prosequendum writ as a request
for custody:
The Government also points out that the speedy trial
requirement of Art. IV (c) by its terms applies only to
a "proceeding made possible by this article . . . ."
When a prisoner is brought before a district court by
means of an ad prosequendum writ, the Government argues,
the subsequent proceedings are not made possible by Art.
IV because the United States was able to obtain prisoners
in that manner long before it entered into the Agreement.
We do not accept the Government's narrow reading of this
provision; rather we view Art. IV (c) as requiring
commencement of trial within 120 days whenever the
receiving State initiates the disposition of charges
underlying a detainer it has previously lodged against a
state prisoner. Any other reading of this section would
allow the Government to gain the advantages of lodging a
detainer against a prisoner without assuming the
responsibilities that the Agreement intended to arise
from such an action.
Id. at 363-64 (emphasis added).
-36-
efficient detainer system badly compromised." Maj. Op. at 13.
However, as the Mauro Court noted, the United States has a simple
way of avoiding the type of problem it created for itself in this
case:
[a]s our judgment in No. 76-1596 indicates,
the Government need not proceed by way of the
Agreement. It may obtain a state prisoner by
means of an ad prosequendum writ without ever
filing a detainer; in such a case, the
Agreement is inapplicable. It is only when
the Government does file a detainer that it
becomes bound by the agreement's provisions.
436 at 364 n.30. See also id. at 362 n.26 ("These problems, of
course, would not arise if a detainer had never been lodged and the
writ alone had been used to remove the prisoner, for the writ would
have run its course and would no longer be operative upon the
prisoner's return to state custody."). It was the United States's
choice to proceed against Pleau by invoking the IAD. The
consequences of allowing the United States to avoid its obligations
under a validly-enacted compact are surely graver than the
consequences of allowing Rhode Island's justice system to prosecute
Pleau.
V.
Lastly, I do not believe that Governor Chafee's
references to Ponzi v. Fessenden, 258 U.S. 254, 260-62 (1922),
McDonald v. Ciccone, 409 F.2d 28, 30 (8th Cir. 1969), Stamphill v.
Johnson, 136 F.2d 291, 292 (9th Cir. 1943), cert. denied, 320 U.S.
766 (1943), or Lunsford v. Hudspeth, 126 F.2d 653, 655 (10th Cir.
-37-
1942), can be dismissed as cavalierly as is attempted by the
majority in its claim that they are not of help in deciphering the
correct answer to the questions presented by the present appeal.
Maj. Op. at 10 & n.3. Nor do I agree with the majority's
conclusion that the holding in United States v. Scheer, 729 F.2d
164, 170 (2d Cir. 1984), which is clearly favorable to Governor
Chafee's position, is either dicta or "properly described as a
misreading of Mauro." Maj. Op. at 11-12. A balanced appraisal of
these cases, when they are actually read and analyzed, creates some
doubt as to the majority's dismissal.
In Scheer the Second Circuit passed upon the very issue
before us: the effect on Article IV(a) of the IAD of a habeas writ
filed subsequent to a detainer. A federal grand jury in Vermont
indicted Scheer for several alleged violations of federal firearms
statutes. 729 F.2d at 165. Thereafter, on March 15, 1982, Scheer
was arrested in California on state criminal charges. Id. While
Scheer was in jail awaiting disposition of the state charges, the
federal authorities learned of his whereabouts, and in April,
pursuant to the IAD, filed a detainer with the California
authorities on the federal charges pending in Vermont. Id. On May
27 Scheer pled guilty to the California charges and was sentenced
to 16 months imprisonment. At this point, Scheer contacted the
U.S. Attorney's Office in Vermont requesting a prompt resolution of
the federal charges, following this request with a June 7 telegram
-38-
substantially repeating this petition. Id. In the meantime, on
May 28, the government secured an ad prosequendum writ from the
District Court in Vermont, which was executed on June 5 when U.S.
Marshals took custody of Scheer and proceeded to bring him to
Vermont. Id. After Scheer was arraigned in the District of
Vermont, a series of motions and incidences followed, with Scheer's
trial date finally set for March 2, 1983. Id. at 165-66. Prior
thereto, Scheer filed a motion to dismiss claiming that the
government had violated several provisions of the IAD. Id. at 166.
The motions were denied and immediately thereafter Scheer was tried
and found guilty. Id. This outcome was set aside and a new trial
was granted, before which Scheer entered a plea of guilty,
reserving the right to appeal his claims under the IAD. Id.Although Scheer alleged violations of Article IV(a), (b),
and (c), only the disposition regarding paragraph (a) is of direct
interest to this appeal. Scheer argued that Article IV(a) was
violated because the U.S. Marshals transferred him to Vermont less
than 30 days after the issuance of the ad prosequendum writ. Id.
at 170. The court ultimately rejected this argument on the ground
that Scheer had waived his right to contest the transfer. Id. at
170-71. However, in so ruling, the court clarified the
relationship between an ad prosequendum writ and the IAD:
The 30-day provision was plainly inserted into
the law to permit the . . . Governor of the
sending state to order that the prisoner not
be transferred. 11 Cong. Rec. 14,000, 38,841.
-39-
Although it could be argued that the proviso
applies only to "State" parties to the
Agreement and not the United States, that
position is difficult to justify since the
definition of "State" in the Act includes the
United States. What little legislative
history exists indicates that the United
States and the District of Columbia became
full parties to the Agreement with the States
. . . More significantly, the Supreme Court
has indicated that Article IV(a) envisions
that following the filing of a written notice
of request for custody "[f]or the next 30
days, the prisoner and prosecutor must wait
while the Governor of the sending State, on
his own motion or that of the prisoner,
decides whether to disapprove the request."
Cuyler v. Adams, 449 U.S. 433, 444 (1981).
The Government urges that we hold the 30-day
period not violated because the writ of habeas
corpus ad prosequendum was not abrogated by
the United States becoming a party to the Act.
We recognize that the historic power of a
federal court to issue such a writ to secure a
state prisoner for federal trial has existed
since Chief Justice Marshall held it was
included under the rubric of habeas corpus
. . . . Nonetheless, employing that rationale
would be treating the federal government's
participation in the IAD on a different
footing than that of the States. Further, the
Supreme Court has held that once a detainer
has been lodged as here, it triggers the
procedural rules of the ACT so that the later
filing of a writ of habeas corpus ad
prosequendum is simply equivalent to a
"written request for temporary custody" and
may not be used as a basis for the federal
government to avoid its obligations under the
Act. United States v. Mauro, 436 U.S. at 362.
Thus the power of the writ seems unavailing
once the government elects to file a detainer
in the course of obtaining a state prisoner's
presence for disposition of federal charges.
729 F.2d at 170 (emphasis added).
-40-
Ponzi, on which several of the cases cited by Chafee and
Pleau are based, also bears closer analysis than is given by the
majority. The majority points out that Ponzi "neither held nor
said that a state governor may invoke comity principles to disobey
a federal habeas writ." Maj. Op. at 10. But nor did Ponzi say the
opposite: that a state governor may not disobey a federal writ.
Ponzi is important because, since it is a pre-IAD case, its
explanation of the principle of comity sheds light on the rights
that existed prior to the Agreement, which were "preserved" and
"retained" by the State governors under Article IV(a). Mauro, 436
U.S. at 363 n.28 (emphasis in original). As Chief Justice Taft
explained in Ponzi:
The chief rule which preserves our two systems
of courts from actual conflict of jurisdiction
is that the court which first takes the
subject-matter of the litigation into its
control, whether this be person or property,
must be permitted to exhaust its remedy, to
attain which it assumed control, before the
other court shall attempt to take it for its
purpose. The principle is stated by Mr.
Justice Matthews in Covell v. Heyman . . . as
follows:
"The forbearance which courts of coordinate
jurisdiction, administered under a single
system, exercise toward each other whereby
conflicts are avoided, by avoiding
interference with the process of each other,
is a principle of comity, with perhaps no
higher sanction than the utility which comes
from concord; but between the state courts and
those of the United States it is something
more. It [is] a principle of right and law,
and therefore, of necessity. It leaves
nothing to discretion or mere convenience.
-41-
These courts do not belong to the same system,
so far as their jurisdiction is concurrent:
and although they coexist in the same space,
they are independent, and have no common
superior. They exercise jurisdiction, it is
true, within the same territory, but not in
the same plane; and when one takes into its
jurisdiction a specific thing, that res is as
much withdrawn from the judicial power of the
other, as if it had been carried physically
into a different territorial sovereignty."
258 U.S. at 260 (quoting Covell v. Heyman, 111 U.S. 176, 182
(1884)).
The cases that the majority claims "misread[]" Ponzi,
Maj. Op. at 9, do nothing of the sort. In Lunsford, the Tenth
Circuit cited Ponzi for the
now axiomatic rule of law that a sovereignty,
or its courts, having possession of a person
or property cannot be deprived of the right to
deal with such person or property until its
jurisdiction and remedy is exhausted and no
other sovereignty, or its courts, has the
right or power to interfere with such custody
or possession . . . As an easy and flexible
means of administering justice and of
affording each sovereignty the right and
opportunity to exhaust its remedy for wrongs
committed against it, there has evolved the
now well established rule of comity which is
reciprocal, whereby one sovereignty having
exclusive jurisdiction of a person may
temporarily waive its right to the exclusive
jurisdiction of such person for purposes of
trial in the courts of another sovereignty
. . . The privileges granted by this flexible
rule of comity should and must be respected by
the sovereignty to which it is made available,
and this respectful duty is reciprocal,
whether federal or state . . . .
-42-
Lunsford, 126 F.2d at 655. Similarly, in Stamphill, the Ninth
Circuit relied on Ponzi for the proposition that
[t]here is no doubt that the state of
Oklahoma, having first acquired jurisdiction
over the appellant, was entitled to retain him
in custody until he had finished his sentence
and could not be required to surrender him to
the custody of the United States marshal for
trial in the federal court for an offense
committed in violation of federal law.
136 F.2d at 292. In McDonnell, in turn, the Eighth Circuit relied
on both Stamphill and Lunsford for the proposition that although
the federal court in Texas could issue a writ of habeas corpus ad
prosequendum, "[t]he release by the state authorities . . . is
achieved as a matter of comity and not of right." 409 F.2d at 30.
In light of Ponzi's reference to a "principle of comity . . .
between the state courts and those of the United States" that is a
"principle of right and law, and therefore, of necessity," 258 U.S.
at 260 (quoting Covell, 111 U.S. at 182), I fail to see how
Stamphill, Lunsford, and McDonnell can be said to have "misread"
Ponzi in any way.
VI.
The sum and summary of all of the matters that I have
punctuated leads to an inevitable and straightforward outcome, one
which, like the forest for the trees, is ignored by some. We are
confronted with two federal statutes -- the IAD and the habeas
corpus statute, 28 U.S.C. § 2241. We have a Supreme Court case --
-43-
Mauro -- that plainly explains how these statutes interact. From
these three guideposts, the proper legal route is easily charted:
1. The IAD is an interstate compact which, upon
Congressional approval, the United States joined
as an equal member with 48 other States, this
Agreement becoming federal law.
2. The filing of a detainer against Pleau by the
United States triggered the application of the
full Agreement, including all of the rights that
the United States granted to other States under
the Agreement.
3. Under Mauro, because the United States triggered
the IAD before seeking an ad prosequendum writ,
the writ is treated as a request for custody
under the IAD.
4. Because the writ is treated as a request for
custody under the IAD, Governor Chafee had the
right under Article IV(a) to refuse to transfer
Pleau.
I cannot agree with the contrary result reached by the
majority. The Supremacy Clause does not justify the majority's
result because the Supremacy Clause is not implicated here. Mauro
cannot justify the result because Mauro, properly read, supports
the panel's original opinion. The equities of the case, even if
they weighed in favor of the United States (and they do not),
cannot justify the majority's result because this court has no
authority to ignore the express terms of the IAD.
I respectfully dissent.
-44-