United States v. Pleau

• Decision Date: 21 May 2012
• Docket Number: 11–1782.,Nos. 11–1775,s. 11–1775
• Citation: 680 F.3d 1
• Parties: 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. In re Jason Wayne Pleau, Petitioner. Lincoln D. Chafee, in his capacity as Governor of the State of Rhode Island, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

680 F.3d 1

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.In re Jason Wayne Pleau, Petitioner.Lincoln D. Chafee, in his capacity as Governor of the State of Rhode Island, Intervenor.

Nos. 11–1775, 11–1782.

United States Court of Appeals, First Circuit.

Heard April 4, 2012.

Decided May 7, 2012.

Order denying motion to stay mandate May 21, 2012.

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.

Before LYNCH, Chief Judge, TORRUELLA, BOUDIN, HOWARD and THOMPSON, Circuit Judges.

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 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 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 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, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), which resolves the first question and frames the second in a way that clearly dictates the answer.

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...