Two Habeas Updates

The first update comes from the US and the second from the UK.


I’ve been keenly following the case of United States v. Pleau from Rhode Island. Detailed posts here and here. On Wednesday, the First Circuit re-heard the case in an en banc sitting and audio of the oral arguments were released here. I’ve listened to them and I was happy to hear several judges express concern over just what I discussed here—that the panel ruling would just encourage US Attorneys to skip an IAD request and file a habeas petition under § 2241(c)(5) in the first instance. What I found fascinating was the US Attorney’s take; as he explained it, filing only the habeas writ would be “taking a risk.” Basically, filing a detainer insures that the prisoner won’t be released from state prison custody back into the world but rather transferred straight from one jurisdiction’s custody to the federal authorities. So, if you file the habeas writ first, there’s a chance that you may be too late and have to go out and arrest the guy from scratch.

Of course, this is a weird argument in the instant case. As you might remember, Pleau is serving a life sentence in Rhode Island…the reason the feds want him is the fact that he could be exposed to the death penalty if federally convicted. Long story short, the risk that Pleau would be released before transfer of custody is null here.*  Naturally, I think the US Attorney’s position is forward-looking; an attempt to explain why there is still incentive to file IAD requests first.

Even for the hypothetical future cases, I’m still not sure I’m buying his explanation. If the guy you want is in custody then file the § 2241 and get him. If he’s released before you can get the writ issued, just get an arrest warrant and go arrest him. It just doesn’t seem like much of a hardship. The whole point here is that the US Attorney attempted to explain why his office didn’t have a new incentive to just use habeas and skip the IAD…and I found his explanation unpersuasive. And to make a long story short, I don’t know how the en banc panel will rule. The questioning was more lukewarm that I anticipated and I don’t have an especially good feel for what the outcome will be.


The second update is in the case of Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & anor, [2011] EWCA Civ 1540. I went over this British habeas case in some detail here. Well, a follow-up came down here on February 23, 2012. As you might remember, the Court of Appeal granted habeas and required the UK to make an attempt to get Yunus back from US custody. All that was required, however, was a good faith attempt. It looks the government made good on that requirement because apparently the US Justice Department responded, indicating its belief that it maintained custody over Yunus and that it would not turn him over.** Accordingly, the Court of Appeal found that the UK had done all that was required of them. The full judgment is here and is fairly short. It’s worth reading. I’m not nearly familiar enough the appellate procedure in the British courts to know if this ruling can be appealed to the UKSC but I’ll keep my eye open for any further developments.

-Zachary Cloud

* I’m assuming—perhaps entirely falsely—that Pleau won’t qualify for early release under his current sentence.

** There’s some contention over this. The prisoner’s attorney points out that the US letter doesn’t explicitly refuse and loses on her push for the UK to go back and get a clear ‘yes’ or ‘no’ from the US government. The lords were not convinced that the US correspondence could be read as anything other than a refusal to turn over the prisoner. See [2012] EWCA Civ 182, [10], [20].


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