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. 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, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Codifying common law practice, the statute authorizing
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 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,
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 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
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, 98 S.Ct. 1834.
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, 98 S.Ct. 1834. 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) 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, 98 S.Ct. 1834. The time limits, it said, had been accepted by the federal government when it invoked the IAD procedures. Id. at 364, 98 S.Ct. 1834.
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, 98 S.Ct. 1834; 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:
Id. at 363, 98 S.Ct. 1834 (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
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;
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, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), as in many other contexts, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695-96, 99 S.Ct. 3055, 61 L.Ed.2d 823 (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,
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 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."
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, 101 S.Ct. 278, 66 L.Ed.2d 135 (1980); United States v. Bryant, 612 F.2d 799, 802 (4th Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1855, 64 L.Ed.2d 274 (1980); Trafny v. United States, 311 Fed.Appx. 92, 95-96 (10th Cir. 2009) (unpublished).
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 construe the consent provision as if it were an open issue; 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, 98 S.Ct. 1834. 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.
The writ of prohibition is denied and the stay of the habeas writ is vacated.
It is so ordered.
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,
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.
There is no question that the IAD is an
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.
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
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
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 substance
With respect, I find all of these arguments flawed.
We first turn to the Supremacy Clause argument, the recurrent "Big Brother" argument
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 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 a 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.
The federal habeas corpus writ was first authorized to be issued by federal courts pursuant to Section 14 of the Judiciary Act of 1789.
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,
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:
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."
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 with 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.
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
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 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, 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
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:
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.
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:
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 contentions
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:
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.
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.
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.
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 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:
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.
Lastly, I do not believe that Governor Chafee's references to Ponzi v. Fessenden, 258 U.S. 254, 260-62, 42 S.Ct. 309, 66 L.Ed. 607 (1922), McDonald v. Ciccone, 409 F.2d 28, 30 (8th Cir.1969), Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.1943), cert. denied, 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457 (1943), or Lunsford v. Hudspeth, 126 F.2d 653, 655 (10th Cir. 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 6 & 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 7. 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 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:
729 F.2d at 170 (emphasis added).
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 6. 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, 98 S.Ct. 1834 (emphasis in original). As Chief Justice Taft explained in Ponzi:
258 U.S. at 260, 42 S.Ct. 309 (quoting Covell v. Heyman, 111 U.S. 176, 182, 4 S.Ct. 355, 28 L.Ed. 390 (1884)).
The cases that the majority claims "misread[ ]" Ponzi, Maj. Op. at 6, do nothing of the sort. In Lunsford, the Tenth Circuit cited Ponzi for the
Lunsford, 126 F.2d at 655. Similarly, in Stamphill, the Ninth Circuit relied on Ponzi for the proposition that
136 F.2d at 292. In McDonald, 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, 42 S.Ct. 309 (quoting Covell, 111 U.S. at 182, 4 S.Ct. 355), I fail to see how Stamphill, Lunsford, and McDonald can be said to have "misread" Ponzi in any way.
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—Mauro—that plainly explains how these statutes interact. From these three guideposts, the proper legal route is easily charted:
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.
ORDER OF COURT
Our decision in this case was released on May 7, 2012. The Clerk's Office advises that, in the ordinary course, the mandate would issue on May 29, 2012.
A petition for rehearing would plainly be fruitless since the matter has now been twice fully briefed and the issues in both rounds were the same. As for any request for a stay of mandate pending certiorari, the customary criteria are not met: even assuming a certiorari petition would present a non-frivolous question, there is no "good cause" for a stay, see Fed. R.App. P. 41(d)(2)(A), and there is a reasonable risk that the federal prosecution of Pleau will be prejudiced by any further delay in the proceedings.
The federal offenses of which Pleau is accused occurred on September 14, 2010. Although the charged crimes occurred almost two years ago, and the indictment followed less than three months later, Pleau has not yet even been arraigned in federal district court because Rhode Island, which holds Pleau as a state prisoner, has refused to deliver Pleau into federal custody to answer the federal charges. The district judge ultimately issued a writ of habeas corpus expressly authorized by federal statute requiring that Pleau be brought to federal court, 28 U.S.C. § 2241(c)(5), but that writ was in turn stayed by a majority of the original panel as a result of appellate proceedings described in our decision.
Whether a non-frivolous issue could be presented by a certiorari petition might be debated. As the en banc majority decision reads United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the state's ability to resist the writ depends entirely on a question to which the Supremacy Clause provides a plain negative answer, id. at 363, 98 S.Ct. 1834, and no previous governor appears to have defied
However, as to "good cause," Pleau's arraignment and initial proceedings looking toward an eventual trial should move forward immediately.
No threat exists of irreversible prejudice to Pleau or Rhode Island. A trial of Pleau is unlikely to occur before the Supreme Court could consider a certiorari petition, and were certiorari granted the Court could itself grant a stay of proceedings. Anyway, even if a trial occurred and Pleau and Chafee thereafter prevailed on their position, objections based on the detainer statute would not be mooted, see Mauro, 436 U.S. at 347-48, 365, 98 S.Ct. 1834, and Pleau could be returned promptly to state custody.
Accordingly, the motion to expedite issuance of the mandate is denied insofar as it may seek issuance prior to May 29, 2012; but, for the reasons stated, a stay of mandate beyond that date is denied.
TORRUELLA, Circuit Judge, with whom THOMPSON, Circuit Judge, joins, dissenting.
I respectfully dissent from the denial of the motion to stay the issuance of the mandate in this case. Federal Rule of Appellate Procedure 41(d)(2)(A) permits this Court to stay a mandate pending the filing of a petition for certiorari if the petition would "present a substantial question" and if there is "good cause for a stay." The inquiry contemplated by this rule "focuses on whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury." McBride v. CSX Transp., Inc., 611 F.3d 316, 317 (7th Cir.2010) (internal quotation marks omitted). See also 20A James W. Moore et al., Moore's Federal Practice, § 341.14 (Matthew Bender 3d ed. 2012). Both of these requirements are clearly satisfied here.
"To demonstrate a reasonable probability of success on the merits, the applicant must show a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five Justices will vote to reverse the judgment of [the Court of Appeals]." McBride, 611 F.3d at 317. Under Supreme Court Rule 10(a), the Court will consider granting certiorari if a court of appeals "has entered a decision in conflict with another United States court of appeals on the same important matter." In addition, under Supreme Court Rule 10(c), the Court will consider granting certiorari when a federal Court of Appeals "has decided an important question of federal law that has not been, but should be, settled by [the] Court, or has decided an important federal question in a
There can be no doubt that this case presents an "important question of federal law": the proper balance of power between the states and the federal government in the context of custody over prisoners. Questions of federalism and the interaction between federal government and state government authority are some of the most important legal issues that the Supreme Court must resolve. The potential impact of this case on the rights of states is significant enough that the National Governors Association and the Council of State Governments, organizations representing the governors and elected and appointed officials of all 50 states, participated in this case as amici curiae. This case also has important implications for the rights of criminal defendants, as evidenced by the appearance as amici curiae of various organizations representing criminal defense lawyers.
Resolution of this question of federal law turns in large part on the proper interpretation of a Supreme Court case, United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). A dispute regarding the proper interpretation of a Supreme Court case is clearly one that is best settled by the Supreme Court. In addition, as explained by the dissent from the en banc decision, it can be argued that the en banc decision conflicts with Mauro, a relevant decision of the Supreme Court. See 680 F.3d at 8 (Torruella, J., dissenting). Moreover, there is a split of authority among the circuits regarding the proper reading of Mauro. Compare Trafny v. United States, 311 Fed.Appx. 92, 95-96 (10th Cir.2009), United States v. Graham, 622 F.2d 57, 59-60 (3d Cir.1980), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 135 (1980), and United States v. Bryant, 612 F.2d 799, 802 (4th Cir.1979), with United States v. Scheer, 729 F.2d 164, 170 (2d Cir.1984).
Furthermore, if the Court does grant certiorari, there is a reasonable possibility that five Justices will vote to overturn the en banc majority's decision. Reasonable jurists can disagree regarding the proper interpretation of Mauro, as illustrated both by the debate within this Court and by the split in authority between the Circuits. It is by no means certain that the Supreme Court would agree with the en banc majority's decision.
There is also good cause to delay the issuance of the mandate. The majority argues that the mandate must be issued according to the normal schedule because the federal prosecution of Pleau must be allowed to resume as soon as possible. However, it is difficult to see what will be lost by allowing the Supreme Court time to decide whether or not to grant certiorari in this case. On the other hand, Rhode Island's interests could be irreparably harmed by Pleau's transfer to federal custody.
The State of Rhode Island has a public policy against the death penalty. In furtherance of this public policy, the State has an interest in preventing its citizens from being exposed to a prosecution that might result in the death penalty. Rhode Island also has an interest in upholding its sovereign right to refuse a request for a prisoner transfer, a right guaranteed by the express language of the Interstate Agreement on Detainers. Both of these interests could be irreparably harmed if Pleau is transferred before the Supreme Court has an opportunity to decide whether or not to grant certiorari. The transfer of Pleau to federal custody could moot this case entirely. In addition, as the en banc majority opinion recognized, "the governor could hardly obtain meaningful relief following
Given the importance of the issues presented in this case and the risk of irreparable harm to Rhode Island's interests, I see no reason for the majority's haste to issue the mandate. The Supreme Court may yet decide to uphold the en banc majority's opinion, but it may also decide to reinstate the original panel's decision. The most prudent course of action for this Court seems to be to leave the status quo in place while the Supreme Court decides what it wants to do. Therefore, I respectfully dissent.
Id. at 363-64, 98 S.Ct. 1834 (emphasis added).