The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on Mr. Ricky Munez's petition for habeas corpus pursuant to 28 U.S.C. § 2255. This Court rejected the other two grounds of the Petition in its Opinion of July 21, 2010. Munez v. United States, Civil No. 09-3860, 2010 WL 2925917 (D.N.J. July 21, 2010) (Munez I) (rejecting Grounds I and III relating to variance between the criminal complaint and the indictment as well as calculation of sentencing guidelines). Petitioner's final basis for relief, contained in Ground II of the Petition, asserts that his counsel was ineffective for failing to have his indictment dismissed.
His counsel could have done so because the United States repeatedly violated the Interstate Agreement on Detainers Act (IADA) when shuttling Mr. Munez between state and federal detention. See id. at *5; 18 U.S.C. App. 2 § 9. The Court appointed counsel and held an evidentiary hearing on November 15, 2010 in this matter, pursuant to Rule 8 of the Rules Governing § 2255 Proceedings, to determine whether Petitioner was prejudiced by his former counsel's failure to have the indictment dismissed. Proof of such prejudice requires a showing that the Court would have dismissed the indictment with prejudice to re-indictment or that Petitioner would not have pleaded guilty upon re-indictment. For the reasons explained below, the Court will deny the petition.
The IADA is a compact between forty-eight states, the federal government, and the District of Columbia (Mississippi and Louisiana are not parties to the agreement). See 18 U.S.C. App. 2. Among other things, the Agreement "creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that 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). It also "provides for expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his sentence in the sending State." Id.
Article IV(e) of the IADA, the "anti-shuttling" provision, is triggered when the receiving state lodges an official detainer against the defendant. United States v. Mauro, 436 U.S. 340, 349 (1978). It provides that if a trial is not had on any indictment, information, or complaint before the defendant is returned to his original place of imprisonment, such charges must be dismissed with prejudice. 18 U.S.C. app. 2, Art. IV(e). The purpose of Article IV(e) is two-fold: to ensure the defendant is given a speedy trial, and to minimize interruption of the defendant's ongoing rehabilitation or prison treatment program. Bozeman, 533 U.S. at 155. The duration or number of times the prisoner is removed from the sending state is irrelevant; any violation of the anti-shuttling provision must result in dismissal. Bozeman, 533 U.S. at 154-155. In so holding, the Supreme Court reasoned that the Agreement's language was intended to be absolute, and that to hold otherwise would mean any violation could be considered "technical," "de minimis," or "harmless" error, rendering the provision useless. Id.
Under the IADA, the federal government is treated as if it were a state, and so the anti-shuttling provision applies to transfers between state and federal custody, even within a single state. 18 U.S.C. App. 2, § 2; United States v. Thompson, 562 F.2d 232, 234 n.2 (3d Cir. 1977) (rejecting argument that statute only applies to interstate transfers). However, Congress has amended the statute so that when the United States is the receiving State, as in the present case, charges may be dismissed with or without prejudice. See 18 U.S.C. App. 2, § 9.
Petitioner was charged with conspiracy to possess with intent to distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (distribution) and 21 U.S.C. § 846 (conspiracy). Even though he was serving a state sentence at South Woods State Prison in Bridgeton, New Jersey on the date his federal indictment was filed, his detainer incorrectly stated that he was an unsentenced state prisoner. As a result, Petitioner was shuttled between state and federal custody six times during the course of his federal proceedings, of which four such day-trips to federal court violated the IADA when he was returned to New Jersey prison without his federal charges being disposed of.*fn1
There is no dispute that an IADA violation occurred each time Petitioner was returned to South Woods before his sentencing. The issue was not spotted or raised by Petitioner, his former counsel, the Assistant United States Attorney, or the Court, during the pendency of his criminal charges. As explained in the Court's prior Opinion on this matter, the conceded violation of the anti-shuttling provision of the IADA would have resulted in dismissal, if raised, but the dismissal could be with or without prejudice. Munez I, at *5. Petitioner's entitlement to relief therefore turns on whether dismissal would have been with prejudice, and if not, whether he would have pleaded guilty upon being re-indicted.
The Court convened a hearing to allow Petitioner to make these showings. The November 15, 2010 evidentiary hearing centered on two issues. First, it examined the extent of the IADA problem in the United States Marshal's Office and what steps were taken to remedy the problem - which goes to whether dismissal would have been with prejudice, as explained below; and second, it examined Petitioner's testimony that he would have proceeded to trial if his case had been dismissed without prejudice and then re-indicted.
The extent of IADA violations present in this district was put at issue by Petitioner's argument that vacating the sentence was the only remedy adequate to deter such widespread violations. At the hearing, Deputy United States Marshal Terence Merrigan testified that after learning of this matter he discovered in February 2010 that there had been a total of six violations of the anti-shuttling provisions of the IADA in the Camden vicinage in recent cases (including this case) but he could not speak to violations elsewhere in the district or in closed cases. (Tr. of Nov. 15, 2010 H'rg 11-12). Deputy Marshal Merrigan traced the error to an administrative assistant in the Marshal's Office who had mistakenly used the incorrect detainer form entitled "Detainer Against Unsentanced Prisoner" (Form USM-16A) (Ex. U.S.-1), rather than the proper form of detainer for Munez's situation as a sentenced state prisoner, entitled "Detainer Against Sentenced State Prisoner" (Form USM-17A) (Ex. U.S.-2). (Id. at 11.) After Munez's petition was filed, Merrigan promptly reported it to his superiors in Newark, who conducted training for office personnel in Trenton and Camden so that violations would not recur. (Id. at 14.)
At the November hearing, Mr. Munez also testified that had the indictment been dismissed, and if he had been re-indicted, he would not have agreed to plead guilty. (Id. at 41-42.) ...