F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 5, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-3144
v. (D. Kansas)
LEO D. GRAHAM, JR. (D.C. Nos. 99-CR-10023-02-JTM &
01-CV-03316-JTM)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.
Leo D. Graham, Jr. pleaded guilty in federal district court to one count of
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). He had been
serving a state sentence of imprisonment when the federal government obtained
the original indictment and lodged a detainer against him. The Interstate
Agreement on Detainers Act (“IADA”) therefore governed Mr. Graham’s delivery
to federal court and disposition of the pending charges. See 18 U.S.C. App. 2, §§
2, 9. The IADA “creates uniform procedures for lodging and executing a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
detainer, i.e., a legal order that requires a State in which an individual is currently
imprisoned to hold the individual when he has finished serving his sentence so
that he may be tried by a different State for a different crime.” Alabama v.
Bozeman, 533 U.S. 146, 148 (2001).
Mr. Graham contends that his appointed counsel did not investigate or
explain certain IADA violations pertinent to his case before advising him to plead
guilty. Mr. Graham filed a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. He alleged that his counsel’s ineffective assistance resulted
in an involuntary guilty plea. The district court denied the motion for relief, and
on appeal, this court granted a certificate of appealability. Exercising jurisdiction
under 28 U.S.C. §§ 1291 and 2253, we reverse and remand to the district court for
an evidentiary hearing on his claim of ineffective assistance of counsel.
I. BACKGROUND
A. Overview of the IADA
The IADA involves 48 states, the federal government, and the District of
Columbia. “The rights created by the IADA are statutory, not fundamental or
constitutional in nature.” Yellen v. Cooper, 828 F.2d 1471, 1474 (10th Cir. 1987).
These protections “are designed to facilitate a defendant’s rehabilitation in prison
and to avoid disruptions caused when charges are outstanding against the prisoner
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in another jurisdiction.” Id. (quotation marks omitted). The IADA “encourage[s]
the expeditious and orderly disposition . . . of charges [from other jurisdictions]
and the determination of the proper status of any and all detainers based on
untried indictments, informations, or complaints.” 18 U.S.C. App. 2, § 2, Art. 1.
It prescribes certain procedures to follow when a prisoner is serving a term of
imprisonment in a “Sending State,” and criminal charges are filed against the
prisoner in another jurisdiction (the “Receiving State”). See id., Art. II(b)-(c).
Relevant to this appeal are two IADA provisions. First, Article III of the
IADA provides that if the receiving state lodges a detainer against a prisoner in
the sending state, the prisoner must be provided a copy of this detainer and
advised of his IADA right to be brought to trial in the receiving state within 180
days. Second, the IADA prevents any receiving state from “shuttling” a prisoner
between its custody and the sending state. A receiving state must complete a trial
on all pending charges against the prisoner before returning him to the sending
state’s custody; otherwise, the court in the receiving state must dismiss the
pending charges with prejudice. Id., Art. IV(e).
Where, as here, the receiving state is the federal government, special
provisions apply. A federal court may return a prisoner to the custody of the
sending state prior to the federal trial “pursuant to an order” and “after reasonable
notice to the prisoner and the United States and an opportunity for a hearing.” Id.
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§ 9(2). Following a hearing, the federal court may dismiss the pending charge
with or without prejudice, after considering (1) “the seriousness of the offense,”
(2) “the facts and circumstances of the case which led to the dismissal,” and (3)
“the impact of a reprosecution on the administration of the agreement on detainers
and on the administration of justice.” Id. § 9(1).
B. Mr. Graham’s case history
On March 3, 1999, the federal government obtained the original indictment
against Mr. Graham and three co-defendants for armed bank robbery and related
charges. At that time, Mr. Graham was serving a 120-month sentence with the
Kansas Department of Corrections (“KDOC”). On March 10, the United States
Marshal’s Service lodged a non-IADA detainer against Mr. Graham with the
KDOC; the detainer was captioned as a “Detainer Against Unsentenced Prisoner.”
According to Mr. Graham, he was not given a copy of the federal detainer, though
he became aware of it when the KDOC entered it on his inmate record.
The government subsequently requested a writ of habeas corpus ad
prosequendum to take temporary custody of Mr. Graham. The United States
District Court for the District of Kansas issued the writ. On March 31, Mr.
Graham was transferred to federal custody from a KDOC facility, and he was
arraigned on April 2. Counsel was appointed and appeared with him at the
arraignment. The district court detained Mr. Graham pending federal trial.
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On May 3, 1999, the government filed a motion to dismiss Mr. Graham’s
indictment without prejudice. Two of Mr. Graham’s co-defendants were not yet
available for trial because of trial or sentencing proceedings in other jurisdictions.
The government sought dismissal to avoid multiple trials, expecting the other two
defendants to be available within the next few weeks. The government did not
serve Mr. Graham or his counsel with a copy of the motion, and the district court
did not hold a hearing on the motion. The next day, the court dismissed the
indictment without prejudice, and Mr. Graham was returned to KDOC custody on
May 19. According to Mr. Graham, the government did not remove the federal
detainer during his return to KDOC custody.
On January 12, 2000, the government filed a superceding indictment
against Mr. Graham and his co-defendants. The district court again issued a writ
of habeas corpus ad prosequendum. Mr. Graham was transferred to federal
custody on February 9 and arraigned. Counsel representing Mr. Graham on the
original indictment also represented him on the superceding indictment. The
district court detained Mr. Graham pending his federal trial. Through counsel he
filed several pre-trial motions, including a motion to sever trial from his co-
defendants. The district court granted the motion to sever his trial.
On July 5, 2000, Mr. Graham pleaded guilty to one count of armed bank
robbery as charged in the superceding indictment. Under the plea agreement, the
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remaining count was dismissed. Prior to sentencing, Mr. Graham sent a letter to
the district court stating that he had not been satisfied with his attorney’s failure
to investigate and explain to him his IADA rights. Mr. Graham pointed out that
he had been “under sentence” in KDOC custody when the federal government
incorrectly lodged its non-IADA detainer against him. The record does not show
that the district court responded to Mr. Graham’s letter. On October 4, 2000, the
court sentenced Mr. Graham to 188 months’ imprisonment, followed by 36
months’ supervised release. He was returned to KDOC custody on October 18,
and the federal detainer against him was cancelled.
Mr. Graham did not directly appeal his conviction or sentence. On July 27,
2001, he timely filed a § 2255 habeas motion to vacate, set aside, or correct his
sentence. Mr. Graham argued that (1) his trial counsel’s ineffective assistance
had resulted in an involuntary guilty plea; and (2) he had been denied effective
assistance of counsel at a critical stage of the proceedings, when the district court
dismissed his original indictment without prejudice on May 4, 1999. The district
court denied habeas relief in November 2001. It concluded that a violation of the
IADA was not a constitutional violation, and “[a]bsent special circumstances,
violations of the IADA are not a basis for collateral attack on a conviction.” Rec.
doc. 202, at 1 (Order, filed Nov. 20, 2001) (citing Greathouse v. United States,
655 F.2d 1032, 1034 (10th Cir. 1981)). The court did not address Mr. Graham’s
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Sixth Amendment claims.
Mr. Graham subsequently filed a motion to amend the judgment and to
make additional findings of fact. In April 2004, the district court again denied his
claims. The court, however, briefly analyzed the ineffective-assistance claim. It
stated: “The court has reviewed the record, transcripts, and pleadings, and finds
that defendant received effective assistance of counsel as defined in Strickland v.
Washington, 466 U.S. 668 (1984).” Rec. doc. 216, at 6 (Mem. and Order, filed
April 22, 2004).
Mr. Graham timely appealed the denial of habeas relief. On July 29, 2005,
this court appointed counsel for him and granted a certificate of appealability
(“COA”) on two issues:
(1) [Mr. Graham’s] contention that his guilty plea was involuntary
because his counsel rendered ineffective assistance of counsel in
failing to advise him that his rights under the IADA had been
violated; [and]
(2) [Mr. Graham’s] contention that he was denied the assistance of
counsel at a critical stage of the proceeding–namely, the
dismissal of the original indictment without prejudice.
Order, filed July 29, 2005; see also 28 U.S.C. § 2253(c)(2) (providing that a
appellate court may issue a COA “if the applicant has made a substantial showing
of the denial of a constitutional right”). As to Mr. Graham’s first claim, he asks
us to reverse the district court’s decision denying habeas relief and to vacate his
sentence based on the involuntariness of his plea agreement. In the alternative,
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Mr. Graham seeks a remand to the district court for an evidentiary hearing.
Under his second claim, he contends he is entitled to a more lenient standard of
review because the ineffective assistance of counsel implicated a critical stage of
the district court’s proceedings.
II. DISCUSSION
A. Standard of review
We review Mr. Graham’s claim of ineffective assistance of counsel de
novo. United States v. Holder, 410 F.3d 651, 654 (10th Cir. 2005). “When
reviewing a district court’s denial of a § 2255 petition, we review questions of
law de novo and questions of fact for clear error.” United States v. Harms, 371
F.3d 1208, 1210 (10th Cir. 2004) (citation omitted).
A petitioner for habeas relief is entitled to an evidentiary hearing on his §
2255 motion “[u]nless the motion and the files and records of the case
conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255. In
determining whether to remand Mr. Graham’s case for an evidentiary hearing, we
first evaluate whether his allegations, if proven, would entitle him to relief.
United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). If so, we “review the
district court’s refusal to hold an evidentiary hearing for an abuse of discretion.”
Harms, 371 F.3d at 1210.
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B. Involuntariness of plea agreement
Mr. Graham alleges that, despite his repeated requests, his defense counsel
did not investigate IADA violations and their possible impact on the validity of
his superceding indictment before advising him to plead guilty. He contends that
he was denied his Sixth Amendment right to an effective assistance of counsel,
resulting in a coerced guilty plea. According to Mr. Graham, had he been aware
of the IADA violations, he would not have pleaded guilty to armed bank robbery
and instead would have pursued dismissal of the superceding indictment with
prejudice. He contends that the plea agreement did not provide significantly less
prison time than a trial conviction.
We first address the government’s contentions that Mr. Graham has waived
any claims of statutory IADA violations because he pleaded guilty and did not file
a direct appeal. It is true that “a prisoner may waive his rights under the IADA”
by demonstrating that he “has affirmatively requested treatment in a manner
contrary to” the IADA. Yellen, 829 F.2d at 1474. While Mr. Graham’s two
claims before us are predicated on the violation of his statutory IADA rights, each
claim alleges a separate violation under the Sixth Amendment. That Mr.
Graham’s guilty plea may have foreclosed any statutory claims of IADA
violations does not affect our review of his independent constitutional claims.
We also reject the government’s argument that Mr. Graham is precluded from
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filing a § 2255 motion because he did not file a direct appeal. “[A]n ineffective-
assistance-of-counsel claim may be brought in a collateral proceeding under §
2255, whether or not the petitioner could have raised the claim on direct appeal.”
Massaro v. United States, 538 U.S. 500, 504 (2003).
We therefore review Mr. Graham’s allegation–that his counsel’s ineffective
assistance made his guilty plea involuntary–under the familiar framework of
Strickland, 466 U.S. at 686. “[T]he two-part test applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52,
57 (1985). This approach is also consistent with how other appellate courts have
analyzed prisoners’ § 2255 ineffective-assistance challenges based on IADA
violations. See, e.g., Baxter v. United States, 966 F.2d 387, 389 (8th Cir. 1992)
(applying the Strickland test to a prisoner’s § 2255 Sixth Amendment claim that
his trial counsel improperly “advised him to plead guilty when [the counsel]
should have sought dismissal of the charges under the IADA”); United States v.
Espinoza, 866 F.2d 1067, 1070 (9th Cir. 1988) (reviewing under Strickland a
prisoner’s § 2255 claim of ineffective assistance of counsel based on his trial
counsel’s failure to raise the government’s violation of the IADA).
Mr. Graham must show that his counsel’s performance was deficient, and
this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.
Under the first prong, he must demonstrate that his counsel’s representation “fell
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below an objective standard of reasonableness.” Id. at 688. Mr. Graham must
establish that his counsel’s advice to plead guilty was outside “the range of
competence demanded of attorneys in criminal cases.” Hill, 474 U.S. at 56
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Under the prejudice
prong, he “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to
trial.” Id. at 59. This prejudice inquiry resembles our inquiry for claims of
ineffective assistance from trial convictions. The assessment of an alleged
“failure to investigate or discover exculpatory evidence” or to “advise the
defendant of a potential affirmative defense” depends largely on whether the
evidence or defense “likely would have changed the outcome of a trial.” Id.
Mr. Graham’s allegations raise important questions about the effectiveness
of his counsel in advising him to plead guilty. The record establishes that (1) the
government incorrectly filed a non-IADA detainer against Mr. Graham, and (2)
under Article IV and Section 9 of the IADA, he and his counsel should have
received notice and a hearing prior to the dismissal of his original indictment
without prejudice. The court also did not consider the factors under Section 9(1)
before it dismissed the original indictment without prejudice.
The district court neither held an evidentiary hearing nor made any factual
findings before it denied the Sixth Amendment claims. Consequently, the record
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does not reveal whether Mr. Graham’s counsel ever investigated possible IADA
violations or discussed IADA issues with him prior to the plea agreement. In
further support of his claim, Mr. Graham points out a recent decision in which the
United States District Court for the District of Kansas dismissed an indictment
with prejudice after the government mistakenly filed an “unsentenced” detainer
against a state prisoner who was in fact covered by the IADA. See Queen v.
Farden, 2005 WL 1941693, at *2-3 (D. Kan. Aug. 12, 2005).
Given the seriousness of Mr. Graham’s allegations and the undeveloped
factual record, we find the Sixth Circuit’s decision in Kowalak v. United States,
645 F.3d 534 (6th Cir. 1981) relevant here. In Kowalak, a pro se prisoner
“alleged that his defense counsel did not inform him of his rights under IAD[A]
and advised [him] that he could fulfill his wish to remain in federal custody by
pleading guilty to the federal charges against him.” Id. at 537. The circuit found
it “clear that his former counsel was unaware of or chose to ignore the provisions
of the IAD[A],” and the court was especially concerned about the allegations
because they were “uncontradicted by the scant record.” Id. The Sixth Circuit
concluded that the district court had abused its discretion in not holding an
evidentiary hearing. “A Sixth Amendment claim grounded on such a credible
allegation . . . must be explored at a hearing which gives the defendant an
adequate opportunity to shoulder his burden on showing the inadequacy of his
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counsel.” Id. at 537-38.
We conclude that Mr. Graham’s record before the district court did not
“conclusively” show that he was entitled to no relief. Therefore, the district court
abused its discretion when it denied the § 2255 motion without holding an
evidentiary hearing. We remand to the district court for an evidentiary hearing
where Mr. Graham will have the burden to prove that his counsel’s ineffective
assistance rendered his guilty plea involuntary.
C. IADA hearing as a “critical stage”
Mr. Graham also contends that the dismissal of his original indictment
without prejudice constituted a “critical stage” in his criminal prosecution. If the
dismissal proceeding was a critical stage, Mr. Graham need not demonstrate
prejudice from the absence of his counsel at the proceeding. See United States v.
Cronic, 466 U.S. 648, 659 (1984) (“The presumption that counsel’s assistance is
essential requires us to conclude that a trial is unfair if the accused is denied
counsel at a critical stage of the trial.”). A stage in criminal proceedings is
“critical” when “circumstances . . . are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.” Id. at 658.
Examples of critical stages include arraignment, Hamilton v. Alabama, 368 U.S.
53, 55 (1961), post-indictment pre-trial lineup, United States v. Wade, 388 U.S.
218, 236-37 (1967), or cross-examination, Davis v. Alaska, 415 U.S. 308, 318
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(1974). A pre-trial proceeding is a critical stage if it “protect[s] the fairness of
the trial itself,” Schneckloth v. Bustamonte, 412 U.S. 218, 239 (1973), or could
affect the defendant’s substantial rights, Mempha v. Rhay, 389 U.S. 128, 134
(1967).
“[T]he right to the effective assistance of counsel is recognized not for its
own sake, but because of the effect it has on the ability of the accused to receive a
fair trial.” Cronic, 466 U.S. at 658 . “Absent some effect of challenged conduct
on the reliability of the trial process, the Sixth Amendment guarantee is generally
not implicated.” Id. Our circuit’s description of the IADA, however, indicates
that a hearing preceding dismissal of an indictment without prejudice is not a
critical stage. As we noted earlier, “the protections of the IADA are not founded
on constitutional rights, or the preservation of a fair trial, but are designed to
facilitate a defendant’s rehabilitation in prison and to avoid disruptions caused
when charges are outstanding against the prisoner in another jurisdiction.”
Yellen, 828 F.2d at 1474 (emphasis added). Moreover, Mr. Graham’s counsel in
this action acknowledges an inability “to find any decisions specifically holding
that a government motion to dismiss an indictment without prejudice is a ‘critical
stage’ in a criminal prosecution.” Aplt’s Supp. Op. Brief at 17. Thus, we decline
to characterize as a critical stage the dismissal without prejudice of Mr. Graham’s
original indictment.
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III. CONCLUSION
Accordingly, we REVERSE the district court’s denial of Mr. Graham’s §
2255 motion for relief, and we REMAND for an evidentiary hearing to determine
whether the alleged ineffective assistance of counsel made his guilty plea
involuntary. We also GRANT Mr. Graham’s unopposed “Motion to Take Judicial
Notice and to Supplement the Record on Appeal.”
Entered for the Court,
Robert Henry
Circuit Judge
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