United States v. Pleau

with whom

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, 98 S.Ct. 1834, 56 L.Ed.2d 329 (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, — U.S. -, 130 S.Ct. 2295, 2313, 176 L.Ed.2d 1070 (2010) (quoting New Jersey v. New York, 523 U.S. 767, 811, 118 S.Ct. 1726, 140 L.Ed.2d 993 (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. 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, 98 S.Ct. 1834.

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.

I.

There is no question that the IAD is an *9interstate 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, 98 S.Ct. 1834. 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, 98 S.Ct. 1834 (alterations omitted). “[T]here is no indication whatsoever that the participation of the United States was to be a limited one.” Id. at 355, 98 S.Ct. 1834.

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, 98 S.Ct. 1834. 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, 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 *10Island’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, 98 S.Ct. 1834). Based on this clear statement from Mauro, the panel held that

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 “rejected] 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 5. 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 5. 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 5.11 The majority then posits a catch-all ratiocination, pursuant to which it concludes that Rhode Island’s arguments “fail[ ] the test of common sense,” id. at 7. 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 7-8.

With respect, I find all of these arguments flawed.

II.

We first turn to the Supremacy Clause argument, the recurrent “Big Brother” ar*11gument 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 “[ujnder the Supremacy Clause ... the habeas statute — like any other valid federal measure — overrides any contrary position or preference of the state....” Maj. Op. at 6. 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 & federal statute enacted by Congress.” 130 S.Ct. at 2312 (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 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 pris*12oners, considerably restricted the power of federal courts to act.15 This 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, 122 S.Ct. 1864, 152 L.Ed.2d 962 (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

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 *13before 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

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, 98 S.Ct. 1834.

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, 98 S.Ct. 1834. 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 by the United States ivith Congress’ approval, id. at 353-55, 98 S.Ct. 1834, 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, 98 S.Ct. 1834. 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 arraigned in federal court and entered pleas of not guilty to the relevant charges. Id. Their trial was *14delayed, and because of overcrowding in federal facilities, they were returned to state custody. Id. at 344-45, 98 S.Ct. 1834. 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, 98 S.Ct. 1834. 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, 98 S.Ct. 1834. At this point Ford requested a speedy trial on federal charges pending in the Southern District of New York, sending letters to this effect to the District Court and the U.S. Attorney for that District. Id. at 346, 98 S.Ct. 1834. 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, 98 S.Ct. 1834.

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 IY(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, 98 S.Ct. 1834. 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 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, 98 S.Ct. 1834.

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 *15States to obtain state prisoners.” Id. at 349, 98 S.Ct. 1834 (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, 98 S.Ct. 1834. As the Court emphasized:

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, 98 S.Ct. 1834 (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, 98 S.Ct. 1834.22

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, 98 S.Ct. 1834 (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:

[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 detain-er 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 *16court 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 dearly 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, 98 S.Ct. 1834 (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 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 ... rejected] 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 5. 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 5 (citing Mauro, 436 U.S. at 363-64, 98 S.Ct. 1834). 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. 5: “We are unimpressed ....,” Mauro, 436 U.S. at 363, 98 S.Ct. 1834. Yet when one reads and analyzes what was actually stated by 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, 98 S.Ct. 1834. 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 *17State’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 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, 98 S.Ct. 1834 (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, 98 S.Ct. 1834.24 Since treating an ad prosequendum 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, 98 *18S.Ct. 1834 (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, 98 S.Ct. 1834 (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 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 7.26

IV.

The majority takes the position it does because it fears that “[wjere Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution, and the use of the efficient detainer system badly compromised.” Maj. Op. at 7. 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 U.S. at 364 n. 30, 98 S.Ct. 1834. See also id. at 362 n. 26, 98 S.Ct. 1834 (“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.

*19V.

Lastly, I do not believe that Governor Chafee’s