United States v. Pleau

United States Court of Appeals
For the First Circuit
No. 11-1775

UNITED STATES OF AMERICA,

Appellee,

v.

JASON WAYNE PLEAU,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

No. 11-1782
IN RE: JASON WAYNE PLEAU,

Petitioner.

PETITION FOR A WRIT OF PROHIBITION TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before
Torruella, Boudin, and Thompson,
Circuit Judges.

Robert B. Mann, with whom Mann & Mitchell, David P. Hoose, and
Sasson, Turnbull & Hoose, was on brief for appellant-petitioner.
Claire Richards, Chief Legal Officer, on brief for amicus
curiae Governor Lincoln D. Chafee in support of appellant-
petitioner.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief for
appellee.
October 13, 2011

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 TORRUELLA, Circuit Judge. Petitioner Jason Wayne Pleau

is accused of the armed robbery and murder of a gas station manager

in Rhode Island. Pleau is currently serving an eighteen-year

sentence in Rhode Island state prison for parole and probation

violations, and has agreed to plead guilty to state charges

stemming from the robbery and murder and to accept a sentence of

life imprisonment without the possibility of parole. The issue

presented in the current petition is whether the United States,

after being rebuffed by the state of Rhode Island in its attempt to

take custody of Pleau under the Interstate Agreement on Detainers

(IAD), 18 U.S.C. App. § 2, may compel the same result by means of

a writ of habeas corpus ad prosequendum. The issue is brought to

us accompanied by a statement by Rhode Island Governor Lincoln

Chafee that he would not transfer Pleau to federal custody because

doing so would expose Pleau, a Rhode Island citizen, to a potential

death sentence on federal charges, in contravention to Rhode

Island's longstanding rejection of capital punishment.

The petition presents a question of first impression in

this court, as it appears that never before has a state governor

denied a federal request for custody under the IAD. For the

reasons stated below, we hold that the federal government is

entitled to choose between the IAD and an ad prosequendum writ in

seeking custody of a state prisoner for purposes of a federal

prosecution, but that once the federal government has put the gears

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of the IAD into motion, it is bound by the IAD's terms, including

its express reservation of a right of refusal to the governor of

the sending state.

I. Background.

A. Facts & procedural posture.

On September 20, 2010, Pleau, along with two others,

allegedly robbed a Woonsocket, RI gas station manager who was on

his way to the bank to deposit the day's receipts. Pleau is

alleged to have shot the victim, David Main, to death during the

robbery. On November 18, 2010, the United States filed a criminal

complaint in the United States District Court for the District of

Rhode Island, and an arrest warrant was issued. Shortly

thereafter, on November 22, the United States Marshals Service

lodged a detainer with the warden of Rhode Island's Adult

Correctional Institution, High Security Unit in Cranston, Rhode

Island, where Pleau is currently serving a sentence for parole and

probation violations. Pleau and his alleged cohorts were then

indicted for robbery affecting interstate commerce, 18 U.S.C. §

1951(a); conspiracy to commit robbery affecting interstate

commerce; and possessing, using, carrying, and discharging a

firearm in relation to a crime of violence, 18 U.S.C. §§

924(c)(1)(A) and (j)(1). The indictment noted that Pleau and his

co-defendants are eligible for the death penalty, and specified

statutory aggravating factors.

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 In order to facilitate Pleau's prosecution under the

federal indictment, the district court entered an order

transmitting the United States' request for temporary custody of

Pleau under the IAD on May 25, 2011. Approximately one month

later, Rhode Island Governor Lincoln Chafee denied the request for

custody, citing Article IV(a) of the IAD, which states, in

pertinent part, that after a request for temporary custody has been

made, "there shall be a period of thirty days . . . within which

period the Governor of the sending State may disapprove the request

for temporary custody or availability, either upon his own motion

or upon motion of the prisoner." 18 U.S.C. App. § 2, art. IV(a).

Pursuant to 28 U.S.C. § 2241(c)(5), the federal government then

petitioned the district court for a writ of habeas corpus ad

prosequendum, a form of habeas used to secure a defendant's

presence in court. Pleau filed a motion opposing the request on

the same day.

On June 30, the district court granted the Government's

request, holding that Pleau lacked standing to challenge the

issuance of the writ and denying his claim on the merits as well.

The district court, noting that "[i]t appears that this is the

first time a governor has dishonored a request by the United

States" under the IAD, held that when the IAD "has been invoked and

a detainer lodged against a state prisoner, Article IV may afford

the governor of the sending State the right to dishonor the request

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to transfer . . . but, in all events does not empower him, or his

agents, to disobey a federal court's writ of habeas corpus ad

prosequendum as to that prisoner." United States v. Pleau, No. CR.

10-184-1S, 2011 WL 2605301, at *3 (D.R.I. June 30, 2011). The

court issued the writ requiring Pleau's presence in federal court

on Friday, July 8, 2011 at 11:00 a.m. for arraignment.

Pleau filed a motion in this court to stay execution of

the writ as well as a motion seeking a writ of prohibition. On

July 7, 2011, we granted a stay, directing the parties to file

briefs and setting the case for oral argument. Governor Chafee

appeared before this court first as an amicus curiae supporting

Pleau, and later as an intervenor-appellant.

B. The IAD and habeas corpus ad prosequendum

Before turning to the merits, we briefly sketch the

background of the IAD and ad prosequendum writs, as well as the

standards governing the use of writs of mandamus and prohibition.

The IAD, adopted by Congress in 1970, is an agreement

between forty-eight states, the District of Columbia, Puerto Rico,

the Virgin Islands, and the United States. United States v.

Currier, 836 F.2d 11, 13-14 (1st Cir. 1987). The IAD was intended

to "encourage the expeditious and orderly disposition" of

outstanding charges against a defendant based on untried

indictments, informations, or complaints from multiple

jurisdictions, 18 U.S.C. App. § 2, art. I, and to "provide

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cooperative procedures among member States to facilitate such

disposition." United States v. Mauro, 436 U.S. 340, 351 (1978).

To obtain custody under the IAD, the requesting state

must first file a "detainer" with the state with custody, notifying

the custodial state of the untried charges pending against the

prisoner. See United States v. Kenaan, 557 F.2d 912, 915 (1st Cir.

1977) ("A detainer is a formal notification, lodged with the

authority under which a prisoner is confined, advising that the

prisoner is wanted for prosecution in another jurisdiction."). To

actually obtain custody, the requesting state must additionally

file with the sending state a written request for custody, at which

point the latter state has thirty days in which to determine

whether to honor the request. 18 U.S.C. App. § 2, art. IV(a);

Mauro, 436 U.S. at 351-52.

Like requests for custody under the IAD, writs of habeas

corpus ad prosequendum are creatures of statute. Ad prosequendum

writs were first interpreted as arising out of the First Judiciary

Act, 1 Stat. 81-82 (1789), by Chief Justice Marshall in Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 98 (1807). In that case, Chief

Justice Marshall distinguished varieties of habeas, describing

habeas corpus ad prosequendum as the form of the writ "which

issue[s] when it is necessary to remove a prisoner, in order to

prosecute, or bear testimony, in any court, or to be tried in the

proper jurisdiction wherein the fact was committed." Id. The

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present-day writ arises under 28 U.S.C. § 2241(c)(5). See Kenaan,

557 F.2d at 916 ("A federal writ of habeas corpus [ad prosequendum]

under § 2241 is . . . a federal court order, commanding the

presentation of a prisoner for prosecution or as a witness in a

federal court. It is judicially controlled by the federal district

court, which may issue it for the production of a prisoner when 'it

is necessary to bring him into court to testify or for trial.'"

(quoting 28 U.S.C. § 2241(c)(5))). See also Carbo v. United

States, 364 U.S. 611, 613-20 (1961) (discussing the history of ad

prosequendum writs).

C. Writs of prohibition.

The All Writs Act, 28 U.S.C. § 1651(a), empowers federal

courts to issue extraordinary (or "prerogative") writs where

"necessary or appropriate in aid of their respective

jurisdictions." Writs of mandamus instruct lower courts to take

certain specified acts; writs of prohibition instruct them to

refrain from doing so. See In re Perry, 859 F.2d 1043, 1044 n.1

(1st Cir. 1988); In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993).

As such, writs of mandamus and writs of prohibition are mirror

images of each other, and "derive from the same statutory basis and

incorporate the same standards." In re Justices of the Superior

Court Dep't of the Mass. Trial Court (In re Mass. Trial Court), 218

F.3d 11, 15 n.3 (1st Cir. 2000). We therefore "make no distinction

between them," In re Atl. Pipe Corp., 304 F.3d 135, 138 n.1 (1st

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Cir. 2002), and "will continue the practice of referring to them

interchangeably." In re Mass. Trial Court, 218 F.3d at 15 n.3.

Like mandamus, a writ of prohibition is a "drastic

remedy, to be used sparingly and only in unusual circumstances." In

re Mass. Trial Court, 218 F.3d at 15 (internal quotation marks

omitted). The standards for determining when it is appropriate to

issue a writ of mandamus or prohibition reflect the writs'

anomalous character. The First Circuit has acknowledged two

subspecies of mandamus writs: supervisory and advisory.1

Supervisory mandamus is used "to correct an established trial court

practice that significantly distorts proper procedure." United

States v. Horn, 29 F.3d 754, 769 n.19 (1st Cir. 1994). This form

of mandamus "is ordinarily appropriate in those rare cases in which

the issuance (or nonissuance) of an order presents a question anent

the limits of judicial power, poses some special risk of

irreparable harm to the appellant, and is palpably erroneous." Id.

at 769. Supervisory mandamus requires the petitioner to "show both

that there is a clear entitlement to the relief requested, and that

1
Although the cases discussing the supervisory/advisory
distinction do so in the context of writs of mandamus, given that
writs of prohibition are "merely the obverse" of writs of mandamus,
In re Atl. Pipe Corp., 304 F.3d at 138 n.1, we presume that the
supervisory/advisory distinction applies in the context of writs of
prohibition as well. See, e.g., In re Sony BMG Music Entm't, 564
F.3d 1, 9-10 (1st Cir. 2009) (exercising our "advisory mandamus
authority" to issue a writ "prohibit[ing] enforcement of the
challenged order")(emphasis added).

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irreparable harm will likely occur if the writ is withheld." In re

Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995).

By contrast, advisory mandamus is not directed at

"established" practices, Horn, 29 F.3d at 769 n.19, but rather at

resolving issues that are "novel, of great public importance, and

likely to recur." Id. at 769. A case may be fit for advisory

mandamus when it presents a "systematically important issue as to

which this court has not yet spoken." In re Atl. Pipe Corp., 304

F.3d at 140; see also In re Mass. Trial Court, 218 F.3d at 15 n.4;

In re The Justices of the Supreme Court of P.R., 695 F.2d 17, 25

(1st Cir. 1982) (recognizing advisory mandamus as appropriate when

"[t]he issue presented is novel in this circuit, it is important,

and . . . may well recur before further appellate review is

possible"). Advisory mandamus has its roots in the Supreme Court's

acknowledgment that federal courts of appeal have "the power to

review . . . basic, undecided question[s]." Schlagenhauf v.

Holder, 379 U.S. 104, 110 (1964); see also Note, Supervisory and

Advisory Mandamus Under the All Writs Act, 86 Harv. L. Rev. 595,

596 (1972) (describing Schlagenhauf as holding that "in certain

prescribed circumstances, the courts of appeals could properly

decide 'novel and important' questions of law brought to them on

petitions for mandamus").

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 III. Discussion

A. Standing.

As an initial matter, we note that Governor Chafee's

intervention in the present appeal moots a simmering dispute

between the original parties -- Pleau and the United States -- as

to whether Pleau had standing to contest the issuance of the habeas

writ. The district court noted that it is "axiomatic" that "a

state prisoner is without standing to contest a federal court's

issuance of a writ of habeas corpus ad prosequendum." Pleau, 2011

WL 2605301, at *2 (emphasis in original) (internal quotation marks

omitted) (quoting Derengowski v. U.S. Marshal, 377 F.2d 223, 223

(8th Cir. 1967)). The district court rejected Pleau's argument,

renewed on appeal, that the Supreme Court's recent decision in Bond

v. United States, 131 S. Ct. 2355 (2011), implies that he does have

standing as he is challenging "governmental action taken in excess

of the authority that federalism defines," id. at 2363-64. See

Pleau, 2011 WL 2605301, at *2.

The United States insists that Pleau does not have

standing "to interfere with agreements (or disagreements) between

executives concerning custody transfers," in part because a state

prisoner "may not complain if one sovereignty waives its strict

right to exclusive custody of him," as "[s]uch a waiver is a matter

that addresses itself solely to the discretion of the sovereignty

making it and of its representatives with power to grant it."

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Ponzi v. Fessenden, 258 U.S. 254, 260 (1922). At oral argument,

the United States represented that if Pleau does not have standing,

then this case is left with "no legitimate party."

However, Governor Chafee has since sought and been

granted leave to intervene in this case in order to "fully

vindicate his rights under the IAD." Governor Chafee, like Pleau,

argues that once the United States has invoked the IAD, it may not

later circumvent the IAD's express allocation of a right of refusal

to the governor of the sending state by means of an ad prosequendum

writ. Given that no one contests that Governor Chafee, as the

representative of Rhode Island, has standing to raise such a claim,

the concerns regarding whether Pleau does or does not have standing

to challenge the issuance of the ad prosequendum are now moot, and

we express no opinion on the merits of that issue.

B. Which writ?

The United States insists that Pleau's arguments2 do not

meet the standards for mandamus. The United States argues that

Pleau cannot establish (a) that he is "clearly entitled" to relief,

or (b) that he is likely to suffer irreparable harm. In mounting

this argument, the United States evidently presupposes that the

applicable writ is supervisory in character. However, as noted

above, supervisory mandamus is directed at correcting "established"

2
Because Governor Chafee's and Pleau's arguments are
substantially similar, we treat them as one and the same.

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trial court practices. Horn, 29 F.3d at 769 n.19. The parties, as

well as the district court, have represented that Governor Chafee's

denial of the United States' IAD request for custody over Pleau --

which precipitated the current appeal -- is the first time that a

state has denied an IAD request by the federal government. The

issue presented by this petition thus does not concern an

established trial court practice, but is rather novel and a matter

of first impression. It is thus more properly viewed under the

rubric of advisory, rather than supervisory, prerogative writs.

The standard for an advisory writ of prohibition does not

overlap with that for a supervisory writ. See Horn, 29 F.3d at 769

(recognizing that advisory mandamus may lie "even though all the

usual standards [of supervisory mandamus] are not met") (emphasis

added). It is therefore not incumbent upon Pleau to show

irreparable harm or clear entitlement to relief. See In re Sony

BMG Music Entm't, 564 F.3d 1, 4 (1st Cir. 2009) ("When advisory

mandamus is in play, a demonstration of irreparable harm is

unnecessary."); In re Atl. Pipe Corp., 304 F.3d at 139 (noting that

a showing of a risk of irreparable harm and palpable error

"typically apply only to supervisory mandamus") (emphasis in

original). The applicable standard is, rather, whether the issue

raised by Pleau is novel, of great or systemic importance, and

likely to recur prior to effective review.

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 We believe the question presented meets all three

criteria. Governor Chafee's denial of the United States' request

for custody of Pleau appears to be unprecedented. The question of

whether a state governor retains his or her prerogative under the

IAD to deny a subsequent request for custody, even when that occurs

under the guise of an ad prosequendum writ, has never been squarely

considered by the First Circuit. Nor, for reasons we explain more

fully below, is Supreme Court precedent dispositive on this point.

The question raised by Pleau's petition is novel.

The question is also of great and systemic importance.

As Governor Chafee made clear in a statement released on the same

day as his denial of the IAD request, he opposes transferring Pleau

to federal custody on grounds of Rhode Island's "longstanding

policy" against capital punishment. While Governor Chafee's

refusal to allow the federal government to seek the execution of a

Rhode Island citizen "in no way minimize[s] the tragic and

senseless nature" of Main's murder, he stated that he could not "in

good conscience" allow the federal government to ride roughshod

over Rhode Island's "conscious[] reject[ion]" of execution as an

acceptable form of state punishment. Pleau had, at this point,

already indicated his agreement to plead guilty to the state

charges and accept a sentence of life without the possibility of

parole. Therefore, the only additional punishment that a federal

conviction might bring would appear to be authorization to kill

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Pleau. The present case thus presents a stark conflict between

federal and state policy prerogatives on a matter of literally

life-and-death significance.3

Finally, given the unsettled character of the question

presented, the numerous states and territories that are party to

the IAD, and the fact that, as the United States has represented to

us, thousands of ad prosequendum writs are issued each year, it is

not unreasonable to suspect that the question presented in the

instant petition is likely to recur. Indeed, insofar as the United

States is correct that the typical criminal defendant lacks

standing to challenge the issuance of an ad prosequendum writ --

whether issued before or after the invocation of the IAD -– the

question presented "may well recur before further appellate review

is possible." In re The Justices of the Supreme Court of P.R., 695

F.2d at 25.

Moreover, Governor Chafee’s invocation of the IAD and

intervention in this case present a unique opportunity for review

3
We pause to note that the crimes Pleau is alleged to have
committed -- armed robbery and murder -- are quintessential state
crimes, and betray on their face no hint of any uniquely federal
interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15
(1st Cir. 2006) (Torruella, J., concurring) (objecting to
unwarranted extension of federal criminal jurisdiction over
traditionally state crimes). Moreover, given that Pleau has
already agreed to plead guilty to state charges and accept a life
sentence without the possibility of parole, it is frankly unclear
what is to be gained from pursuing federal charges in this case,
particularly in light of the truly extraordinary costs of capital
litigation.

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of this slippery issue: the Governor unquestionably has standing,

where Pleau might or might not. The Governor's standing, though,

might evaporate if Pleau were transferred, in which case it is

unclear what remedy might be available to the Governor. This means

that on direct appeal, if Pleau also lacks standing to challenge

his transfer under the IAD (as the United States insists) then this

question will evade effective review.4 In the end, we very well

might not be able to consider this easily duplicable and important

question if not now.

We conclude that Pleau's petition meets the standard for

an advisory writ of prohibition. As prerogative writs such as

writs of prohibition are discretionary rather than mandatory, we

now turn to consider whether the writ should issue.

C. The merits.

Article VI, Clause 2 of the Constitution, otherwise known

as the Supremacy Clause, states in part that "the Laws of the

United States . . . shall be the supreme Law of the Land . . . any

4
Other cases, including Mauro, have addressed IAD questions on
direct appeal, although always in the context of a prisoner
asserting his own rights under the IAD, such as his speedy trial
rights. See, e.g., Mauro, 436 U.S. at 348; New York v. Hill, 528
U.S. 110, 118 (2000) (holding that the defendant's speedy trial
right under the IAD had been waived). No case has ever addressed
the IAD on appeal in the context of a prisoner standing in for a
sending-state governor who refuses a transfer under Article IV of
the IAD. Cf., e.g., id. at 118 n. 3 (recognizing that "the sending
State may have interests distinct from those of the prisoner," and
noting that the Hill case "does not involve any objection from the
sending State"). We repeat that this situation is unique.

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Thing in the Constitution or Laws of any State to the Contrary

notwithstanding." As we have previously noted, a federal court's

authority to issue a writ of habeas corpus ad prosequendum is

grounded on a federal statute, 28 U.S.C. § 2241(c)(5). Prima

facie, it might well be the case that a state's refusal to honor an

ad prosequendum writ would normally raise serious issues under the

Supremacy Clause.

However, that is not the case now before us. Governor

Chafee has not asserted a free-standing right to ignore federal ad

prosequendum writs. Governor Chafee asserts, rather, that he is

authorized under Article IV(a)5 of the IAD to decide whether to

honor a request for custody made by a receiving state, and that an

ad prosequendum writ that post-dates the invocation of the IAD is,

under federal law, treated as just such a written request. We have

previously explained that, as a "congressionally sanctioned

interstate compact within the compact clause, the [IAD] is a

federal law subject to federal construction." Currier, 836 F.2d at

13 (citation omitted). Therefore, the case now before us involves

two federal statutes and the question of how they may be

interpreted such that each is given effect in a manner that is

consistent with the operation of the other.

5
Section 2 of the Interstate Agreement on Detainers Act "sets
forth the agreement as [originally] adopted by the United States
and by other member jurisdictions." Mauro, 436 U.S. at 343 n. 1.
Provisions of the Agreement will be referred to by their article
numbers as set forth in 18 U.S.C. App. § 2.

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 The United States insists that Pleau's petition has

already been foreclosed by the Supreme Court's decision in Mauro,

in which the Court stated that Article IV(a) of the IAD "does not

purport to augment the State's authority to dishonor" an ad

prosequendum writ, and that "[i]f a State has never had authority

to dishonor an ad prosequendum writ issued by a federal court, then

this provision could not be read as providing such authority."

Mauro, 436 U.S. at 363. Several other circuits have subsequently

arrived at similar conclusions. See United States v. Trafny, 311

F. App'x. 92, 95-96 (10th Cir. 2009); United States v. Graham, 622

F.2d 57, 59-60 (3d Cir. 1980); United States v. Bryant, 612 F.2d

799, 802 (4th Cir. 1979).6 But see United States v. Scheer, 729

F.2d 164, 170 (2d Cir. 1984) (stating that "the historic power of

the [ad prosequendum] writ seems unavailing once the government

elects to file a detainer in the course of obtaining a state

prisoner's presence for disposition of federal charges.")

We are not as confident that Mauro is quite as clear as

claimed by the United States. After all, Mauro had two core

holdings which were necessary to resolving the cases consolidated

before the Court, and both of these holdings undermine rather than

6
Significantly, in none of these cases did the governor of the
sending state actually disapprove the federal government's IAD
request or seek to block transfer under a subsequent ad
prosequendum writ. See Trafny, 311 F. App’x at 94 (state governor
acquiesced in defendant’s transfer to United States’ custody within
thirty days of the issuance of the ad prosequendum writ); Graham,
622 F.2d at 58 (same); Bryant, 612 F.2d at 801 (same)

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support the United States' position. First, the Court held that

the United States is a party to the IAD not just as a sending

state, but as a receiving one as well, and that it is therefore not

exempt from the restrictions the IAD places on receiving states.

Mauro, 436 U.S. at 354. Second, the Court held that while the

federal government could choose to seek custody over a state

prisoner by means of an initial habeas writ or under the IAD, once

an effective IAD detainer had been lodged, "the Agreement by its

express terms becomes applicable and the United States must comply

with its provisions." Id. at 362. "[O]nce a detainer has been

lodged," the Court noted, "the policies underlying the [IAD] are

fully implicated," and thus there is "no reason to give an unduly

restrictive meaning to the term 'written request for temporary

custody.'" Id. Under these circumstances, "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." Id. Both of

these holdings indicate that the United States stands, for purposes

of the IAD, on an equivalent footing with other states, and that,

once it has invoked the IAD, it is bound by the terms thereof,

including Article IV(a).

Moreover, the interpretation of Mauro advanced by the

United States is not in any way self-evident. First, the portion

of Mauro cited by the United States occurs directly after the Court

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announced the rule that subsequent ad prosequendum writs are to be

treated as written requests under the IAD. See Mauro, 436 U.S. at

362-63. We do not believe the portion of Mauro cited by the

Government must be read as stipulating a somewhat mysterious and

implicit carve out to the rule the Supreme Court had just

announced. Rather, it is at least equally plausible to understand

the Mauro majority as reaffirming that although states did not

historically have the power to ignore federal habeas writs at will

and were not granted that power by the IAD, nevertheless, under

certain circumstances, what is ostensibly a federal ad prosequendum

writ is in effect a request for temporary custody under the IAD,

and -- under those circumstances -- subject to the restrictions

imposed on such requests.

Second, Mauro’s suggestion that a governor lacks the

power to reject an ad prosequendum writ acting as a request for

temporary custody under the IAD occurs only in a conditional

phrase: “If a State has never had authority to dishonor an ad

prosequendum writ issued by a federal court, then this provision

could not be read as providing such authority.” 436 U.S. at 363

(emphasis added). We do not read this conditional language as

overriding Mauro’s clear holding that an ad prosequendum writ

following a detainer is a “request for custody” subject to the IAD.

Once the IAD is invoked, it applies in its entirety.

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 We have on one occasion suggested a contrary result in

dicta. See Kenaan, 557 F.2d at 916 n.8. However, Kenaan's dictum,

which predates Mauro, has since been superseded by more recent

authority. In Currier, we relied on Mauro for the proposition that

"once a detainer is lodged against a prisoner, any subsequent writ

issued against that same prisoner is a 'written request for

temporary custody' under the Agreement." 836 F.2d at 14 (citing

Mauro, 436 U.S. at 361-64). We did not rely on Mauro for the

proposition that any subsequent ad prosequendum writ is equivalent

to a request for temporary custody -- except as to Article IV(a).

Our language in Currier was clear and without qualification, and it

plainly follows therefrom that subsequent ad prosequendum writs

are, qua IAD requests, subject to the sending state's right of

refusal under Article IV(a) of the IAD. Although Currier is

distinct insofar as the governor in that case did not seek to

challenge a subsequent ad prosequendum writ, we nevertheless note

that Currier's interpretation of Mauro remains good law in this

circuit.

Our result is further borne out by longstanding

principles of statutory interpretation. First, we note that the

IAD specifically excepts the United States from certain

requirements, but not from a governor's right to refuse a transfer.

The maxim expressio unius est exclusio alterius comes to mind: in

determining the effect of an amendment to existing statutory law,

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"[e]xceptions strengthen the force of the general law and

enumeration weakens it as to things not expressed." 2A Norman J.

Singer & J.D. Shambie Singer, Sutherland Statutory Construction §

47:23 (7th ed. 2010). In the context of the IAD, Congress amended

the IAD after Mauro to add specific exceptions treating the United

States differently from other parties.7 Pub. L. No. 100-960, Title

VII, § 7059, 102 Stat. 4403 (1988) (codified at 18 U.S.C.

App. § 9). Aside from these enumerated exceptions, though,

Congress has stuck with the IAD's definition of the United States

as a “state” on the same footing as other receiving states. See

Mauro, 436 U.S. at 354; see also 18 U.S.C. App. § 2, art. II.

Because Congress specifically amended the IAD to add these express

exceptions, we can safely deduce that Congress did not intend to

make any others. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 188

(1978) (concluding that under maxim expressio unius est exclusio

alterius, enumerated exceptions are the only exceptions intended

within the Endangered Species Act); see also Alabama v. Bozeman,

533 U.S. 146, 153 (2001) (concluding that “the language of the

7
For example, if a receiving state other than the United States
does not hold a trial before returning the person to the sending
state, the "indictment, information or complaint" from the
receiving state "shall" be dismissed with prejudice. 18 U.S.C.
App. § 2, art. IV(e). In contrast, under § 9 of the IAD, "Special
provisions when United States is a Receiving State," if the United
States is the receiving sate, then the dismiss of the "indictment,
information or complaint may be with or without prejudice." 18
U.S.C. App. § 9(1) (emphasis added). Section 9 does not indicate
that the United States can disregard or override a sending state's
denial of its request for temporary custody.

-22-
[IAD] militates against an implicit exception, for it is

absolute”).

Second, notwithstanding the United States’ argument that

the IAD’s purpose compels deviation from its plain language, it is

axiomatic that we must apply the statute as written. See Carchman

v. Nash, 473 U.S. 716, 729 (1985) (rejecting an interpretation of

the IAD that would elevate its purposes over its plain language);

see also Bozeman, 533 U.S. at 153 (noting that in the IAD, as

elsewhere, the word "shall" indicates a command). The IAD plainly

mandates that a governor be allowed to reject a transfer request,

so we must give effect to that command regardless of the statute's

stated purpose.8

Indeed, in an earlier line of cases, we tried deviating

from the IAD’s language in order to comport with its purpose, but

the Supreme Court abrogated the entire line. See United States v.

Kelley, 402 F.3d 39, 42 (1st Cir. 2005) (stating that there can be

8
The IAD unambiguously states: "there shall be a period of
thirty days after receipt by the appropriate authorities before the
request be honored, within which period the Governor of the sending
State may disapprove the request." 18 U.S.C. App. § 2, art. IV(a).
The United States argues that this thirty-day period has no
practical import -- that a prisoner can readily be transferred
within the thirty days whether the sending-state governor approves,
acquiesces, or disapproves. We reject this interpretation, which
would render the mandatory thirty-day period meaningless. See
United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.
1985) ("All words and provisions of statutes are intended to have
meaning and are to be given effect, and no construction should be
adopted which would render statutory words or phrases meaningless,
redundant or superfluous.").

-23-
"no exceptions to finding violations of the IAD for 'technical' or

'de minimis' missteps" and recognizing that Bozeman overruled our

earlier contrary holdings); see also Bozeman, 533 U.S. at 152-56.

Because the IAD provides that a sending-state governor may refuse

to transfer a prisoner, and because Congress specifically excepted

the United States from IAD provisions not including this one, the

United States must honor a governor’s denial of its request. It

is, after all, a request, not an order or a mandate.

One last note remains to be sounded. The United States

has argued that even if Article IV(a) governs ad prosequendum writs

issued after invocation of the IAD, nevertheless disapproval of a

written request under the IAD "may be premised only upon the

requesting sovereign's failure to comply with IAD rules that are

designed to safeguard the process and assure that the request is

genuine." The United States insists that Governor Chafee's

objection to the transfer of Pleau on grounds of Rhode Island's

abhorrence of the death penalty is "not a valid basis" for refusing

the request, and that allowing a governor to refuse an IAD request

on public policy grounds "would be directly at odds with the IAD's

goal of ensuring fast and orderly transfers." The United States

cites no cases in support of this proposition, but rests its

argument on the statutory text, which states that a requesting

sovereign "shall be entitled to have a prisoner against whom he has

-24-
lodged a detainer . . . made available." 18 U.S.C. App. § 2, art.

IV(a) (emphasis added).

The United States' textual argument is unconvincing. It

is true that Article IV(a) states that a requesting sovereign

"shall be entitled" to have a prisoner made available to him after

a detainer has been lodged. However, the United States neglects to

mention that a few lines later, Article IV(a) explicitly qualifies

this statement, and states that this is "provided . . . [t]hat

there shall be a period of thirty days . . . within which period

the Governor of the sending State may disapprove the request for

temporary custody or availability." 18 U.S.C. App. § 2, art.

IV(a). See also Mauro, 436 U.S. at 363 n.28 (noting that the IAD

retained a governor's right to refuse a transfer request on public

policy grounds). It is uncontroversial that a governor may block

a prisoner’s transfer to a receiving state other than the United

States, and we have already explained why Article IV(a) applies

with equal force to the United States. As to the issue of

timeliness, the IAD specifies a thirty-day time frame for a

governor to decide whether or not to grant the request, and so long

as a decision is rendered in that time frame, it is entirely

unclear how it would matter to the speed of a transfer what reason

a governor had for accepting or rejecting a transfer request.

The United States’ attempt to circumvent the IAD with an

ad prosequendum writ weighs in favor of our rejection of its claim

-25-
for physical custody of Pleau. In RaShad v. Walsh, 300 F.3d 27

(1st Cir. 2002), we held that Massachusetts was negligent in

failing to lodge a detainer with Texas after Massachusetts had

indicted a Texas prisoner, even though the IAD does not explicitly

require a receiving state to lodge a detainer with a sending state.

Id. at 37. We reasoned that “[h]olding otherwise would allow a

state to circumvent the IAD with impunity.” Id. at 37-38. We also

noted that there was no evidence Massachusetts deliberately tried

to circumvent the IAD; therefore, the only import of

Massachusetts’s failure was to “cut[] in favor of the petitioner’s

speedy trial claim.” Id. at 37. Here, the United States has gone

much further. It has been seeking an ad prosequendum writ

specifically in order to dishonor Governor Chafee’s denial of its

request for custody, as was his right under the IAD. If

Massachusetts’s inadvertent disregard for the IAD hurt its case,

the United States certainly cannot base its claim for custody of

Pleau on a blatant attempt to sidestep the IAD - a federal law that

the United States itself invoked when it filed a detainer with the

state of Rhode Island. The logic of RaShad applies with even

greater force where the state (i.e. the United States) in violation

of the IAD is the one that invoked it in the first place by filing

a detainer. To grant the United States custody of Pleau “would

allow [the United States] to circumvent the IAD with impunity.”

Id. at 37-38.

-26-
 For these reasons, we hold that once 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.

The 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. But once the federal government has chosen to proceed

under the auspices of the IAD, it may not seek to erase the memory

of that decision by means of an ensuing habeas writ.9

9
The dissent implies that our result would effectively
“empower[] a state governor to veto a federal court habeas writ,”
which Congress never intended to do. See Diss. Op. at 1.
Respectfully, this criticism misapprehends the scope of our
holding. We do not hold that a state has a general right to
disregard a properly granted ad prosequendum writ; such a broad
holding would conflict with the Supremacy Clause and with the
Supreme Court’s statement in Mauro that “[t]he proviso of Art.
IV(a) does not purport to augment the State’s authority to dishonor
[an ad prosequendum] writ.” 436 U.S. at 363. Rather, we hold that
in the circumstances present here, the United States gave up its
right to seek an ad prosequendum writ. The question is not, as the
dissent suggests, what Congress empowered the various states to do;
rather, the question is what Congress bound the United States to
do. By passing the IAD, Congress obligated the United States to
choose either the IAD mechanism or the ad prosequendum mechanism
and then accept the consequences of that choice. Thus, when the
United States invoked the IAD to gain custody of Pleau, it lost its
right to seek an ad prosequendum writ simply because it was
dissatisfied with the result of the IAD process. Holding the
United States to an agreement that was accepted by Congress neither
violates the Supremacy Clause nor upsets the post-Civil War balance
of power between the states and the federal government. Contra

-27-
 IV. Conclusion

As we have recently noted, prerogative writs such as

mandamus and prohibition "are strong medicine and . . . should be

dispensed sparingly." In re Sony BMG Music Entm't, 564 F.3d at 4.

However, that should not be taken to imply that the writ "has

fallen into desuetude." Horn, 29 F.3d at 770 n.20. Indeed, just

two years ago, we issued an advisory writ enjoining a district

court from broadcasting on the internet a non-evidentiary motions

hearing in a copyright infringement case. See In re Sony BMG Music

Entm't, 564 F.3d at 9-10. The novel and challenging issues

presented in the present case are at least as important. In light

of Governor Chafee's exercise of his right of refusal enshrined in

Article IV(a) of the IAD, we issue a writ of prohibition

Diss. Op. at 35-36.
Indeed, the federal government may "waive the federal
sovereign's strict right to exclusive custody of a prisoner" in
favor of state custody. Poland v. Stewart, 117 F.3d 1094, 1098
(9th Cir. 1997) (tracking the language of Ponzi, 258 U.S. at 260).
Such a waiver is merely a specific manifestation of the general
rule that the federal government may waive its sovereignty, either
through executive acts, see, e.g., City of Newark v. United States,
254 F.2d 93, 95 n.1 (3rd Cir. 1958) (citing The Siren, 74 U.S. (7
Wall.) 152, 154 (1868), for the principle that "whenever the United
States brings an action as plaintiff, it waives its sovereignty and
assumes the status of a private individual for the purposes of
counterclaim or defenses"), or legislative acts, see, e.g., United
States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (noting that
the Federal Tort Claims Act creates "sweeping" waiver of federal
sovereign immunity). The IAD creates a legislative waiver of
federal sovereignty in the prisoner-custody context by defining the
federal government as a state, subject to certain exceptions. And
to the extent a state acts in accordance with a federal law that
includes a waiver of sovereignty, it can hardly be said to offend
the Supremacy Clause.

-28-
instructing the parties that the June 30, 2011 writ of habeas

corpus ad prosequendum is to be treated in every respect as a

written request for temporary custody under the IAD, and that the

United States is bound by the IAD’s terms, including the governor’s

right to refuse a transfer request.10

Petition granted.

-Dissenting Opinion Follows-

10
Pleau seeks an interlocutory appeal in addition to or
alternatively to the writ of prohibition. Because we issue the
writ, we need not address Pleau’s request for interlocutory review.

-29-
 BOUDIN, Circuit Judge, dissenting. Congress would surely

be surprised to be told that it had empowered 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 penalty that might be imposed if

a federal conviction resulted. Of course, Congress has not

provided states with any such veto power, and the Supreme Court has

already made this clear in United States v. Mauro, 436 U.S. 340

(1978).

A federal grand jury indicted Jason Pleau on December 14,

2010, charging him with federal felonies11 related to the September

20, 2010, robbery and murder of a gas station manager making a bank

deposit in Woonsocket, Rhode Island. Pleau was in Rhode Island

state custody on parole violation charges when the indictment came

down, and is now serving an 18-year sentence there for parole and

probation violations.

To secure Pleau's presence in the federal prosecution,

the federal government invoked the Interstate Agreement on

Detainers Act ("IAD"). Pub. L. No. 91-358, 84 Stat. 1397 (1970)

(codified as amended at 18 U.S.C. app. 2 § 2 (2006)). The IAD

provides what is supposed to be an efficient shortcut to achieve

11
Conspiracy to commit robbery affecting commerce, 18 U.S.C.
§ 1951(a) (2006), robbery affecting commerce, id., and use of a
firearm during and in relation to a crime of violence resulting in
death, id. § 924(c)(1)(A), (j)(1).

-30-
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 to secure the state prisoner for

a federal prosecution. 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 in such situations. E.g., Carbo v. United States,

364 U.S. 611, 615-16, 618 (1961). The federal habeas statute

codifying this common law practice authorizes the writ to be issued

by 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) (2006). This habeas

statute, currently in force, long predated the IAD, Carbo, 364 U.S.

at 614-19.

Pursuant to the habeas statute, the federal district

court in Rhode Island ordered Pleau to be delivered into federal

custody. Pleau, 2011 WL 2605301, at *4. Pleau, who at that stage

had no standing under existing precedent to challenge the writ,12

12
E.g., Weekes v. Fleming, 301 F.3d 1175, 1180 n.4 (10th Cir.
2002), cert. denied, 537 U.S. 1146 (2003); Weathers v. Henderson,
480 F.2d 559, 559-60 (5th Cir. 1973) (per curiam); Derengowski v.

-31-
nevertheless appealed and petitioned this court for a writ of

prohibition to bar the district court from enforcing the habeas

writ. Over a dissent, the panel majority granted a stay of the

habeas writ and Pleau remains today in state custody many months

after the government first sought his appearance in federal court.

Unless he is produced, he cannot be tried on the federal charges.

An expedited appeal followed in which the Rhode Island

governor was granted belated intervention. The panel majority has

now held that the state's refusal to grant consent under the IAD

effectively disables as well the grant of the subsequently filed

traditional habeas corpus ad prosequendum writ. This conclusion is

remarkable both because Mauro held that lack of state consent would

not affect the force of the habeas writ vis-à-vis the state and

because it effectively thwarts a federal prosecution authorized by

the United States Attorney and a federal grand jury.

Were the panel's position to prevail, Pleau could be

permanently immune from federal prosecution. He is currently

serving an 18-year term in Rhode Island prison and, if exempted now

from answering the federal charges in the district court, could

well agree to a life sentence under Rhode Island law for the

robbery and murder. See Br. for Amicus Curiae Governor Lincoln D.

U.S. Marshal, Minneapolis Office, Minn. Div., 377 F.2d 223, 223-24
(8th Cir.), cert. denied, 389 U.S. 884 (1967); United States v.
Horton, No. 95-5880, 1997 WL 76063, at *3 (4th Cir. Feb. 24, 1997)
(per curiam) (unpublished).

-32-
Chafee in Support of Pet'r Ex. A (letter from Pleau to Rhode Island

Assistant Attorney General offering to plead to sentence of life

without parole on state charges). Even if the term remains at 18

years, one could hardly count on necessary witnesses being

available for federal prosecution two decades from now. Instead of

a place of confinement, the state prison has been made a refuge

against the federal courts.

To reach this result, the panel majority has circumvented

standing limitations on the power of a defendant to challenge the

writ, see note 12, above, as well as ordinary practice generally

reserving prohibition and mandamus writs for clear error by the

district court. E.g., In re City of Fall River, Mass., 470 F.3d

30, 32 (1st Cir. 2006). But, passing all that, on the core issue

the panel decision adopts a reading of the federal statutes that

disregards an explicit contrary determination by the Supreme Court

in United States v. Mauro, 436 U.S. 340 (1978), on the relationship

between the writ and the IAD.

Mauro disposed of two different federal appeals but, in

the one most pertinent to Pleau, the background is easily

summarized. The federal government lodged a detainer with state

prison authorities, and then summoned the defendant from state

prison to federal court by habeas writ, first for arraignment and

(after many postponements) then for trial. The defendant

repeatedly objected that he was being denied the speedy trial

-33-
rights expressly protected by Article IV(c) of the IAD once its

procedures have been invoked. 436 U.S. at 345-48.

After the defendant's federal conviction, the circuit

court held that he had indeed been denied the speedy trial

protections of the IAD, requiring dismissal of the federal

indictment with prejudice. The Supreme Court agreed, saying that

the detainer had triggered the IAD and 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. The fact that the writ

had been used as part of the IAD process, the Court held, did not

negate the IAD's express time limitations and sanction for ignoring

them.

The Court went on, however, to expressly reject the

suggestion that a state governor could resist a writ of habeas

corpus by withholding consent to the transfer of a state prisoner

to federal court. Indeed, 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.

The former represented Congress' concern about delays in the IAD

procedure, which could adversely affect the defendant subject to

the detainer, whether invoked by the federal government or a state.

By contrast, the latter reservation merely preserved for

the holding state its traditional authority to refuse an

extradition request from another state, Mauro, 436 U.S. at 363 &

-34-
n.28; it did not curtail whatever authority the writ traditionally

gave the federal court to insist on the production of a defendant

contrary to the wishes of the state. In fact, in Mauro the federal

government had argued that applying the time limits to it could

allow a governor to invoke Article IV's consent provision to a

federal writ used after a detainer had been filed. The Court

answered:

We are unimpressed. The proviso of Art. IV(a)
does not purport to augment the State's
authority to dishonor such a writ. As the
history of the provision makes clear, it was
meant to do no more than preserve previously
existing rights of the sending States, not to
expand them. If a State has never had
authority to dishonor an ad prosequendum writ
issued by a federal court, then this provision
could not be read as providing such authority.

Id. at 363 (internal footnote omitted).

That "a state has never had authority to dishonor an ad

prosequendum writ issued by a federal court" is patent. The habeas

writ has been codified by Congress, and under the Supremacy Clause,

U.S. Const. art. VI, cl. 2, Congress' power trumps any contrary

position or preference of the state. This principle has been

regularly and famously used to compel states, including their

governors, to respect orders of federal courts in civil rights

cases such as Cooper v. Aaron, 358 U.S. 1, 18-19 (1958), and United

States v. Barnett, 376 U.S. 681 (1964).13 State interposition to

13
And this fundamental tenet of constitutional law is, of course,
not confined to the civil rights context. E.g., Puerto Rico v.

-35-
defeat federal authority is a doctrine that was thought to have

vanished with the Civil War. E.g., Gonzales v. Raich, 545 U.S. 1,

29 (2005).

That the federal statutory habeas ad prosequendum writ

overrides any state power to withhold the defendant has been

affirmed by three circuits with which the panel majority now

conflicts. United States v. Graham, 622 F.2d 57, 59 (3d Cir.),

cert. denied, 449 U.S. 904 (1980); United States v. Bryant, 612

F.2d 799, 802 (4th Cir. 1979), cert. denied, 446 U.S. 919 (1980);

Tranfy v. United States, 311 F. App'x 92, 95-96 (10th Cir. 2009)

(unpublished). A Second Circuit dictum, United States v. Scheer,

729 F.2d 164, 170 (2d Cir. 1984), to the extent it suggests

otherwise, was properly criticized as a misreading of Mauro. Id.

at 172 (Kearse, J., concurring).

Mauro did not hold, as the panel majority supposes, that

the filing of a detainer with state authorities disempowers the

habeas writ or gives the governor a veto over its use; the Court,

in the indented passage quoted above, said exactly the opposite.

Nor do general canons of construction allow a lower court panel

majority to disregard the Supreme Court's own construction of the

IAD, namely, that "[t]he proviso of Art. IV(a) does not purport to

Branstad, 483 U.S. 219, 227-29 (1987); Washington v. Wash. State
Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695-96
(1979); Sterling v. Constantin, 287 U.S. 378, 397-98 (1932); Ex
Parte Young, 209 U.S. 123, 167-68 (1908).

-36-
augment the State's authority to dishonor such a writ." 436 U.S.

at 363.

Here, a valid writ has been approved by a federal

district court but is now effectively dishonored by the state and

by the panel majority's writ of prohibition declaring that the

governor is entitled to disregard the writ. Mauro is plainly to

the contrary, and the panel majority's action cannot survive the

inevitable further review now fated for it.

-37-