Guerrier v. USA

Filing 6

/// ORDER denying 1 Petition to Vacate Sentence - 2255. The court declines to issue a certificate of appealability, but petitioner may seek a certificate from the Court of Appeals under Federal Rules Governing Section 2255 Proceedings. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Viggens Guerrier,
Petitioner
v.

Case No. 12-cv-153-SM
Opinion No. 2013 DNH 011

United States of America,
Government
O R D E R
Viggens Guerrier seeks relief from his conviction and
sentence under the provisions of 28 U.S.C. § 2255.

His petition

is timely, but, for the reasons given in the government’s
opposition, presents no issues of merit.

Guerrier’s sole complaint is that his trial counsel provided
ineffective assistance by failing to move for dismissal of his
federal indictment on grounds that Guerrier’s rights under the
anti-shuttling provision of the Interstate Agreement on Detainers
Act (“IADA”), 18 U.S.C. App. 2 § 2, Art. IV(e), were violated.
He says that, while he was being held in state custody, a federal
detainer was lodged against him in connection with an indictment
charging him with a Hobbs Act (robbery) crime.

He was taken into

federal custody several times (for arraignment, a suppression
hearing, etc.), and returned to state custody without obtaining a
trial.

As the government points out, however, the IADA only comes
into play when a detainer is lodged against prisoners who are
actually serving incarcerative sentences.
The terms of the [IADA] apply exclusively to prisoners
who are actually serving their sentences and not to
pretrial detainees. . . . Nor does it apply to those
who have been convicted but not sentenced. . . . As
this court recently noted: “[t]he basic purpose of the
[IADA] is to prevent interference with institutional
care and rehabilitation, and one cannot interrupt that
which has not yet started.”
United States v. Currier, 836 F.2d 11, 16 (1st Cir. 1987)
(citation omitted).

Here, Guerrier was initially taken into custody by the State
of New Hampshire on a state parole violation charge.

He was

being detained by the state pending adjudication of that charge.
Guerrier concedes in his petition that “no violation sentence was
imposed,” but argues that his original state sentence of one to
three years — the one from which he was paroled — must have been
being “served” while he was detained on the violation charges.
He does not claim that his parole was actually revoked and the
unserved term of imprisonment was reinstated at any point before
he was “shuttled” between state and federal custody.
Accordingly, Guerrier was in state custody in essentially a
pretrial, or pre-revocation, status — detained pending resolution
of the parole violation charge.

Given that status, the IADA

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afforded him no rights, because it did not apply.

See United

States v. Paige, 332 F. Supp. 2d 467, 473 (D.R.I. 2004) (even if
IADA claims were not waived, defendant, who was detained pending
parole revocation, was not a prisoner serving a sentence of
imprisonment within the meaning of the IADA; citing cases).

In addition, the petition fails for another reason.

To show

ineffective assistance of counsel, Guerrier must demonstrate not
only that defense counsel’s performance (in failing to move for
dismissal under the IADA) fell below the accepted standard of
practice, but also that he was prejudiced by that failure.
Strickland v. Washington, 466 U.S. 668, 691-92 (1984).
show neither.

He can

First, it was not incumbent upon defense counsel

to file a motion to dismiss under the anti-shuttling provisions
since the IADA’s provisions didn’t apply to petitioner.

And,

even if counsel should have filed the motion, petitioner was not
prejudiced by that failure.

This is so because when the

receiving party under the IADA is the federal government, any
dismissal of an indictment for violations of the IADA “may be
with or without prejudice.”

18 U.S.C. App. 2 § 9(1).

As the government correctly points out, petitioner was
charged with a serious and violent robbery offense involving
firearms and drug trafficking.

If defense counsel had filed a

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motion to dismiss the indictment, and if it had been found to
have merit, dismissal would unarguably have been without
prejudice and petitioner would unquestionably have been promptly
re-indicted on the same charges, and the outcome would have been
the same.

That is not the stuff of prejudice under Strickland.

As the petition, and the files and records of the case
conclusively show that the petitioner is entitled to no relief,
the petition (document no. 1) is denied.

The court declines to

issue a certificate of appealability, but petitioner may seek a
certificate from the Court of Appeals under Federal Rules of
Appellate Procedure 22.
Section 2255 Proceedings.

See Rule 11, Federal Rules Governing
The Clerk of Court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
January 28, 2013
cc:

Viggens Guerrier, pro se
Seth R. Aframe, AUSA

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