                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 3, 2008
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-3042
          v.                                              (D. Kansas)
 LEO D. GRAHAM,                                (D.C. Nos. 01-CV-3316-JTM and
                                                     99-CR-10023-JTM)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      This 28 U.S.C. § 2255 case is before us for a second time, 1 this time on

appeal from the district court’s evidentiary hearing following our remand to that

court. After conducting the evidentiary hearing, the district court determined that

defendant and appellant, Leo D. Graham, Jr., had not received ineffective

assistance of counsel, rendering his guilty plea involuntary, nor, even if his

counsel was ineffective, had Graham been prejudiced thereby. We affirm.



                                 BACKGROUND

      Much of our factual recitation is taken from our prior unpublished decision

in this case. United States v. Graham, 179 Fed. Appx. 528 (10th Cir. 2006).

Graham pled guilty 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 for bank

robbery when the federal government obtained the original indictment and lodged

a detainer against him. The Interstate Agreement on Detainers Act (“IADA”)

therefore governed 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 detainer, i.e., a legal order that requires a


      1
        We granted a certificate of appealability (“COA”) on the issue of
ineffective assistance of counsel in Graham’s first appeal of the denial of his 28
U.S.C. § 2255 petition. Because this appeal is from an adverse ruling by the
district court following our remand, the original COA remains in effect. To the
extent there is, arguendo, any technical need for a new or renewed COA, we grant
it.

                                         -2-
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).

      As we noted in our first Graham decision, two provisions of the IADA are

particularly relevant to this appeal. 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 be advised of his IADA

right to be brought to trial in the receiving state within 180 days. 2 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. 18 U.S.C. App., § 2, Art. IV(e).

      Where, as in this case, 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.

§ 9(2). In the event of an IADA violation, a federal court may dismiss a pending

charge with or without prejudice, after considering (1) “the seriousness of the

      2
       Under the IADA, the state in which a prisoner is currently serving a
sentence is the “Sending State.” The jurisdiction seeking to try the prisoner on
additional criminal charges is called the “Receiving State.”

                                          -3-
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).

      The entire history of Graham’s case is as follows: On March 3, 1999, the

federal government obtained the original indictment against Graham and three co-

defendants for armed bank robbery and related charges. As indicated, at that time

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 Graham with the KDOC. The detainer was

captioned a “Detainer Against Unsentenced Prisoner,” although Graham was in

fact serving a sentence at the time. Graham claims 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 federal government then requested a writ of habeas corpus ad

prosequendum to take temporary custody of Graham. The federal district court in

Kansas issued the writ. On March 31, 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 Graham

pending trial in federal court.

      On May 3, 1999, the government filed a motion to dismiss Graham’s

indictment without prejudice. The reason for the motion was that two of

                                         -4-
Graham’s co-defendants were not yet available for trial because of trial or

sentencing proceedings in other jurisdictions. The government thus sought

dismissal to avoid multiple trials, expecting the other two defendants to be

available within the next few weeks. The government did not serve 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 district court dismissed the indictment without

prejudice, and Graham was returned to KDOC custody on May 10. Graham

claims 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 Graham and his co-defendants, charging Graham with one count of armed

bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of using

or carrying a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1). The district court again issued a writ of habeas corpus ad

prosequendum. Graham was transferred again to federal custody on February 9

and arraigned. Counsel representing Graham on the original indictment also

represented him on the superceding indictment. The district court detained

Graham pending his federal trial. Through counsel, Graham filed several pre-trial

motions, including a motion to sever his trial from that of his co-defendants. The

district court granted the motion to sever.




                                          -5-
      On July 5, 2000, Graham pled guilty to one count of armed bank robbery as

charged in the superceding indictment. Under the plea agreement, the remaining

firearm count was dismissed. Prior to sentencing, 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. Graham pointed out in his letter

that he had been “under sentence” in KDOC custody when the federal government

incorrectly lodged its non-IADA detainer against him. The district court did not

respond to the letter. 3 On October 4, 2000, the court sentenced Graham to 188

months’ imprisonment, followed by thirty-six months of supervised release. He

was returned to KDOC custody on October 18, in order to complete service of his

state sentence, and the federal detainer against him was cancelled.

      Graham did not directly appeal his conviction or sentence. Instead, on

July 27, 2001, he timely filed a 28 U.S.C. § 2255 habeas motion to vacate, set

aside, or correct his sentence. He 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.


      3
        The district court explained at the evidentiary hearing following the
remand from our court that its policy was to “not correspond directly with anyone
who is caught up in the system. My general practice is to send their letter to their
lawyer and to say, you know, ‘We received this. You do with it what you will.’”
Tr. of Evid. Hr’g at 65, R. Vol. II. The court therefore apparently sent Graham’s
letter on to Graham’s counsel.

                                           -6-
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.” R. doc. 202, at 1 (Order, filed Nov. 20, 2001). 4 The court did not

address Graham’s Sixth Amendment claims.

      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-of-

counsel claim, stating: “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).” R. doc. 216, at 6

(Mem. and Order, filed April 22, 2004).

      Graham appealed the denial of habeas relief, and this court appointed

counsel for him and granted a COA on two issues: (1) 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) Graham’s contention that he was denied the assistance of

counsel at a critical stage of the proceeding—specifically, the dismissal of the

      4
        The order of the district court denying Graham relief in his first § 2255
petition is not a part of the record in this case. However, our prior decision
quoted from and cited that order. We accordingly rely upon our prior decision’s
representation of what the district court concluded in its order. See Graham, 179
Fed. Appx. at 531.

                                          -7-
original indictment without prejudice. In our decision addressing his appeal, we

analyzed Graham’s ineffectiveness claim under the familiar Strickland

framework, requiring a demonstration of both deficient performance by counsel,

as well as prejudice. Noting that the district court “neither held an evidentiary

hearing nor made any factual findings before it denied [Graham’s] Sixth

Amendment claims,” we concluded that the scanty record before the district court

“did not ‘conclusively’ show that [Graham] was entitled to no relief.” Graham,

179 Fed. Appx. at 534. We therefore determined that the district court had

abused its discretion when it denied Graham’s § 2255 motion without holding an

evidentiary hearing and we remanded the case 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.” Id. 5

      On remand, the district court conducted an evidentiary hearing, at which

Graham’s trial counsel for both the original and the superceding indictment

(Kevin Loeffler), another criminal defense lawyer (Kurt Kerns), and Graham

himself testified. The government acknowledged at the hearing that it had not

lodged the correct detainer under the IADA. Thus, there is no dispute that the

IADA was violated.


      5
       We also held that the dismissal of Graham’s original indictment without
prejudice was not a critical stage of the proceedings, which would have obviated
the need for him to establish prejudice from his counsel’s deficient performance.
That issue has not been raised in this appeal.

                                         -8-
      Graham’s trial counsel, Loeffler, testified that he had been appointed to

represent Graham on both the original and the superceding indictment. When

asked if, during the course of his representation of Graham, Graham had

expressed concerns about a possible IADA violation, Loeffler testified that

Graham “brought . . . up several times that he was concerned with the detainer. I

don’t know when the first time was. I know he brought it up in a letter dated . . .

May 7th or 6th that was delivered to me. I believe he brought it up in jail

conversation prior to that.” Tr. of Evid. Hr’g at 9, R. Vol. II. Loeffler further

stated that, in his letter of May 6th or 7th, Graham expressed that his particular

concern was that the detainer that was lodged against him was designated for a

person who was un-sentenced, and that Graham was under a sentence at the time.

      Loeffler testified that his records indicated he had done “research” on May

12, but did not identify the subject of his research. Id. at 11. He then stated that

he met with Graham on July 2, and that on July 3rd his records reflected that he

had done “[r]esearch on detainers.” Id. Loeffler testified that he met again with

Graham on July 4, that Graham pled guilty on July 5, and that his only

recollection was that he “told [Graham] I didn’t see there was a problem with the

detainer. I advised him to go ahead and enter a plea on the case.” Id. at 12.

Loeffler stated that he has since realized that he “probably made some

mistakes. . . . [I]t appears that there was not a hearing held; that I probably




                                          -9-
should have requested a hearing . . . when the original indictment was dismissed

to determine whether it was with prejudice or not.” Id.

      When asked if Graham had indicated to him that, had he believed that there

was an IADA violation, he (Graham) would have pursued dismissal of the

superceding indictment, Loeffler responded, “[h]e did not want to enter a plea.

He didn’t want to go to trial, and he wanted me to work out the best deal I could

for him. But he wanted the case to be dismissed. I recall that.” Id. at 14. When

asked whether, “[k]nowing what [he] know[s] now,” Loeffler would have advised

Graham to enter a plea, Loeffler responded “I think I certainly would have filed a

motion to dismiss and litigated that before I advised him to enter a plea.” Id.

      On cross-examination by government counsel, Loeffler stated his belief that

“[a]s early as May 12th . . . [he] began researching the issue of the detainer.” Id.

at 16. Loeffler further stated that, on July 4, the day before Graham entered his

guilty plea, Loeffler visited Graham and “went over the plea agreement, and I

probably tried to answer any question he had on the detainer at that time.” Id. at

18. Loeffler testified that Graham had made it clear throughout Loeffler’s

representation of Graham that Graham “d[id] not want to go to trial on the Federal

charges.” Id. at 21. Loeffler also testified that the plea agreement he negotiated

for Graham, and which Graham signed, provided for the dismissal of a firearm

charge which would have subjected Graham to an additional consecutive five-year

term of imprisonment.

                                         -10-
      Graham also presented testimony at the hearing from Kerns, another

criminal defense attorney, whom Graham presented as an expert on criminal

defense. He testified that “[i]f there’s an issue that may relate to a dismissal,

speedy trial or IADA issue, you would at least want to discuss that with the client,

discuss it with the prosecution, and either, one, litigate it or, two, get a better plea

offer in exchange for not litigating it.” Id. at 39. He further opined that the

failure to do so would “fall below the reasonable standard” for effective

representation. Id.

      Finally, Graham himself testified. He testified about his concerns

regarding the IADA: “each time we met I brought it to [Loeffler’s] attention,

asked him had he discovered anything else yet, and each time kind of just like:

‘I’m still looking.’ One time he told me, ‘I talked to the prosecutor about it.’”

Id. at 48. When asked whether he would have pled guilty had he known of his

rights under the IADA, Graham responded, “No, I wouldn’t.” Id. at 50. When

asked what he would have done, Graham replied, “I would have asked my lawyer

to file a motion to dismiss because of the violation of the I[A]DA.” Id. at 51.

During cross-examination, Graham freely admitted his guilt in the armed bank

robbery. He further conceded that, at the time he entered his guilty plea, he told

the court that he was satisfied with the representation Loeffler had given him. Id.

at 58. Government counsel then posed the following question to Graham:




                                           -11-
      If you had pursued your motion to dismiss and your motion was
      granted, but it’s granted without prejudice, meaning the case was
      dismissed, but the United States is able to refile the very same
      charges against you, at that point you have two choices: You can go
      to trial on the charges or you can ask your attorney to pursue a plea
      agreement like you did. What would you do if those are your
      choices?

Id. at 61. Graham responded, “I’d have to go for a plea agreement.” Id.

      Following the evidentiary hearing, the district court issued its memorandum

and order. The court noted that defense witness Kerns, an experienced criminal

defense attorney, testified that, had he represented Graham, “he would have filed

a motion seeking to dismiss the indictment for a violation of the IADA.” Mem. &

Order at 2, R. Vol. I, doc. 258. The court then held:

      Here, counsel advised Graham that his best course was to plead
      guilty. Given the seriousness of the charges against him, the
      substantial evidence in support of those charges, the technical nature
      of the detainer defect and the utter absence of any indicia of bad faith
      on the part of the government, and consequently given that the
      chances of obtaining a dismissal with prejudice were remote, the
      court cannot say that Graham’s counsel was deficient in failing to
      present such a motion. The court does not find that counsel’s
      performance was unreasonable under all the circumstances of the
      case.

             Further, even if counsel’s performance in failing to present a
      motion to dismiss were deemed deficient, Graham suffered no
      appreciable prejudice, since under the circumstances of the case the
      court would have denied any such motion; given the circumstances of
      ths case, a dismissal without prejudice was the only appropriate
      resolution.

Id. at 2-3. The district court went on to explain why dismissal without prejudice

would have been the appropriate disposition of this case, and then concluded that,

                                        -12-
given that “the court would not have dismissed the initial indictment with

prejudice, . . . Graham has failed to demonstrate the existence of any prejudice

arising from the putative ineffective assistance of counsel.” Id. at 4.

      Graham appeals, arguing the district court erred in concluding that (1)

Graham’s counsel’s advice to plead guilty in this case was not outside the range

of competence demanded of attorneys in criminal cases; and (2) even if counsel

was ineffective, Graham suffered no prejudice.



                                   DISCUSSION

      We review the 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).

      The Strickland test applies to Graham’s claim of ineffective assistance of

counsel. “[T]he two-part [Strickland] test applies to challenges to guilty pleas

based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 57

(1985). Under the first part of the Strickland test, Graham must show that his

counsel’s representation “fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. He must thus show that his counsel’s advice to plead




                                         -13-
guilty was outside “the range of competence demanded of attorneys in criminal

cases.” Hill, 474 U.S. at 56.

      The second part of the Strickland test, addressing prejudice,

      focuses on whether counsel’s constitutionally ineffective
      performance affected the outcome of the plea process. In other
      words, in order to satisfy the ‘prejudice’ requirement, the defendant
      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. “We may address the performance and prejudice components in any

order, but need not address both if [Graham] fails to make a sufficient showing of

one.” Fields v. Gibson, 277 F.3d 1203, 1216 (10th Cir. 2002) (quoting Boyd v.

Ward, 179 F.3d 904, 914 (10th Cir. 1999)).

      We turn directly to the prejudice part of the Strickland test. Graham

alleges he would have proceeded to trial had he been informed that there was an

IADA violation, or he would at least have sought dismissal of the indictment, and,

in any event, would not have pled guilty. We have “held that a petitioner’s ‘mere

allegation’ that he would have insisted on trial but for his counsel’s error,

although necessary, is ultimately insufficient to entitle him to relief.” Miller v.

Champion, 262 F.3d 1066, 1072 (10th Cir. 2001). “Rather, we look to the factual

circumstances surrounding the plea to determine whether the petitioner would

have proceeded to trial.” Id. Additionally, we consider the strength of the

prosecutor’s case against the petitioner in assessing whether the petitioner would,


                                         -14-
in fact, have proceeded to trial rather than pleading guilty. Id. (observing that the

Supreme Court in Hill “note[d] that courts applying this standard will often

review the strength of the prosecutor’s case as the best evidence of whether a

defendant in fact would have changed his plea and insisted on going to trial”).

      In this case, as Graham himself concedes, there was no doubt as to his guilt

with respect to the armed bank robbery charge. Thus, the prosecutor’s case was

strong, and it was highly unlikely that a trial would have resulted in an acquittal.

Further, as the district court found, had Graham refused the plea agreement

offered and attempted to pursue whatever avenue for relief was available based on

the IADA violation, the overwhelmingly likely outcome would have been a

dismissal of the indictment without prejudice. Under the IADA, in determining

whether to dismiss a pending charge with or without prejudice because of an

IADA violation, the court considers “the seriousness of the offense,” “the facts

and circumstances of the case which led to the dismissal,” and “the impact of a

reprosecution on the administration of the agreement on detainers and on the

administration of justice.” IADA, 18 U.S.C. App., § 9(1). As the district court

determined, all of those factors strongly support the conclusion that the proper

outcome in this case would have been a dismissal without prejudice. Indeed, the

district court stated that it would have dismissed the case without prejudice had

the IADA violation come to light.




                                         -15-
      Given that the indictment would have been dismissed without prejudice, the

government could, and most likely would, have simply filed another indictment,

and Graham would have been faced with deciding whether to accept a plea

agreement or go to trial. In light of his admission of guilt regarding the crime,

including his admission at the evidentiary hearing, it is highly unlikely he would

have proceeded to trial. Thus, he would have been hoping to obtain the best plea

agreement. Indeed, Graham basically testified to that effect at the evidentiary

hearing. And inasmuch as the plea agreement Graham signed following the

superceding indictment already included the dismissal of the firearm count, which

would have required an additional consecutive five-year prison term, it is difficult

to see what more favorable outcome Graham could reasonably have anticipated. 6

      In sum, we agree with the district court that Graham has shown no

prejudice, even assuming his counsel’s performance was deficient. We

accordingly affirm the denial of Graham’s § 2255 petition.




      6
       Presumably, the firearm charge would be included in any new indictment,
and Graham and the government would again negotiate whether dismissal of that
charge would be included in any new plea agreement.

                                         -16-
                          CONCLUSION

For the foregoing reasons, the order of the district court is AFFIRMED.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




                                -17-
