On Rare Forms of Federal Habeas And A Hollow Victory For Rhode Island

Those who know me are aware that I’m a devoted student of federal habeas corpus, codified in 28 U.S.C § 2241 et seq. Something about collateral attacks fascinate me. But there’s a much rarer form of habeas than the typical § 2254 action we all know and love (or hate, if you’re big on federalism). That form is the writ of habeas corpus ad prosequendum. It’s codified at 28 U.S.C. § 2241(c)(5). Unlike the typical habeas petition filed after a prisoner’s judgment of sentence becomes final, these are filed before proceedings have even begun. For students of latin, the writ’s name says it all: it’s designed to facilitate prosecution.  And indeed, the subsection bears this out: “(c) The writ of habeas corpus shall not extend to a prisoner unless— (5) It is necessary to bring him into court or for trial.” So this provision is available but it’s, in relative terms, rarely used.

So why do I bring this up? What am I getting at?

Ah, I’m glad you asked. There’s been some stirring in the blawgosphere over a recent First Circuit opinion about what can only be seen as a David v. Goliath story. The original opinion can be found here.  However, it’s so ghastly typeset (by using Courier and underlining citations) that I felt it my duty to re-typset a better version for you, which can be found here. The opinion is quite informative but my explanation that follows may be a little less intimidating for the uninitiated.

Defendant-Petitioner Jason Pleau (“Defendant”) is accused of armed robbery and murder at a Rhode Island gas station. He is currently in a Rhode Island prison serving an eighteen-year sentence and has agreed to plead guilty to state charges relating to this robbery/murder for a LWOP sentence.

But the U.S. Attorneys want him too. They would like to charge him with:

  1. Robbery affecting interstate commerce. See 18 U.S.C. § 1951(a).
  2. Conspiracy to commit robbery affecting interstate commerce.
  3. Possessing, using, carrying, and discharging a firearm in relation to a crime of violence. See 18 U.S.C. §§ 924(c)(1)(A), (j)(1).

It is possible that Defendant could receive the death penalty if convicted of these crimes. Yet, to prosecute him on these charges (which stem from the same state charges to which he has agreed to plead guilty), they need to get him into federal court…and that’s a problem since he’s in a Rhode Island prison. Can they do it?

Yup, there’s an Act for that. So in theory, yes.

The Interstate Agreement on Detainers (IAD) deals with just such problems. Codified in 18 U.S.C. App. § 2, the IAD allows for authorities to request custody of an inmate from the jurisdiction said inmate is already incarcerated in. Requesting a prisoner under the IAD is typically naught but a formality. In other words, there’s no need to look back to that ad prosequendum writ; the IAD will do nicely.

But will it? We all thought it would. However, producing the prisoner is not mandatory under the IAD. Indeed, “there shall be a period of thirty days . . . [wherein] the Governor of the sending State” can refuse to honor the request. 18 U.S.C. App. § 2, art. IV(a).

And that’s just what Rhode Island’s governor did here. In a move that everyone seems to agree is of first impression, the governor refused because of Rhode Island’s “longstanding policy” against the death penalty. Handing Defendant over to the feds would open him up to that punishment – and why else would they want him considering he’ll already be LWOPing it up in RI?

Not to be deterred, the US Attorney’s office filed a § 2241(c)(5) petition in federal district court, which Defendant promptly opposed. The district court ruled that Defendant lacked standing and granted the writ. Then the governor stepped in and helped out. On appeal, he was an amicus arguing that the effectiveness of the § 2241(c)(5) petition was nullified by the peremptory IAD denial…and the First Circuit agreed! In a split panel, the majority held that:

[O]nce 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.

It seems like a win for the little guy, right? Like David has beaten Goliath? Well I’m not sure that’s at all right. Note carefully what the First Circuit says. If the federal prosecutor files an IAD request first, any subsequent § 2241(c)(5) request will be considered naught but a further written request for custody under the IAD regime. But, the court readily acknowledges that “[t]he federal government is not required to seek custody under the IAD; it may elect to seek custody by means of a habeas writ. In that case, the Supremacy Clause requires states to conform to the habeas writ.”

Right. What we have then is an incredibly narrow holding not likely to repeat itself…like ever. AUSAs, in the First Circuit at least, won’t bother going through the IAD anymore. They’ll just go straight to the ad prosequendum petition in the first instance. Why not? What sense would it make to put yourself at risk of being rejected when you can guarantee compliance? Thus, David beats Goliath but it’s a Pyrrhic victory.

Of course, it’s not clear that the battle is over. I suspect that the First Circuit will rehear the case en banc and might well reverse the panel ruling. Of course, that might not even be the end. It could potentially end up at the Supreme Court…and what an interesting case that’d be. The typical proponents of States’ rights are the same Justices who don’t like preventing states from carrying out the death penalty. When the tables are turned, could we expect someone like Justice Kennedy or Thomas to stay true to their pro-states bent and side with RI? Or would it end up being a repeat of Gonzales v. Raich, 545 U.S. 1 (2005)?

I certainly have no crystal ball. I can only see what’s in front of me but what I see is a hollow victory for Rhode Island and a rare form of habeas that’s about to become a lot less rare.

-Zachary Cloud

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