                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                       No. 11-1731
                                     _______________

                                     RICKY MUNEZ,

                                                  Appellant

                                             v.

                            UNITED STATES OF AMERICA

                                     _______________

                     On Appeal from the United States District Court
                              For the District of New Jersey
                         (D.C. Civil Action No. 1-09-cv-03860)
                     District Judge: Honorable Jerome B. Simandle
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 17, 2011
                                  _______________

             Before: RENDELL, AMBRO, and NYGAARD, Circuit Judges

                         (Opinion filed:    November 30, 2011)
                                    _______________

                                        OPINION
                                     _______________

AMBRO, Circuit Judge

       Ricky Munez appeals the denial of his petition for a writ of habeas corpus. In his

petition, he asserts an ineffective assistance of counsel claim, arguing that his counsel’s
failure to notice the Government’s violations of the Interstate Agreement on Detainers

Act (“IADA”) prejudiced his case. For the reasons that follow, we affirm.

I.     Background

       Munez was serving a sentence in New Jersey state prison when a federal grand

jury indicted him. He was charged with one count of conspiracy to distribute five or

more grams of cocaine base (“crack”), in violation of 21 U.S.C. §§ 841 and 846. The

District Court appointed an attorney for him, and authorities brought him from the state

prison to the federal courthouse and back six times. 1 Each round trip took no more than a

day; Munez spent each night in the state prison. He ultimately pled guilty to the federal

drug charge, for which the District Court sentenced him to 188 months in prison, to run

concurrently with his state sentence.

       Munez subsequently filed a habeas corpus petition claiming that his appointed

trial counsel had been ineffective. He cited, among other grounds, his trial counsel’s

failure to notice the Government’s violation of the IADA. The Government now

concedes that it violated the IADA. Had these violations been raised, they would have

required the District Court to dismiss the charge against Munez, possibly with prejudice.

       After an evidentiary hearing on this issue, the District Court denied relief. In its

thorough opinion, the Court reasoned that it did not need to reach the “deficiency” prong

of ineffective assistance analysis because Munez’s claim foundered on the “prejudice”


1
  The six trips were for Munez’s initial appearance, his arraignment, a status conference,
a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure, a motions
hearing, and his sentencing.


                                              2
prong. Specifically, it held that the outcome of Munez’s case would have been the same

even if his counsel had raised the IADA violations because (1) the Court would have

dismissed the drug charge without prejudice and, (2) after reindictment, Munez would

have pled guilty again. Nonetheless, the District Court granted a certificate of

appealability pursuant to 28 U.S.C. § 2253(c). For the reasons given by the District

Court, we affirm.

II.    Discussion

       The District Court had jurisdiction under 28 U.S.C § 1331. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a). On appeal from a denial of a habeas petition, we

exercise plenary review over the District Court’s legal conclusions and apply a clearly

erroneous standard to its findings of fact. United States v. Lilly, 536 F.3d 190, 195 (3d

Cir. 2008).

       The IADA codifies an agreement that 48 states (including New Jersey), the

District of Columbia, and the Federal Government have entered. See 18 U.S.C. App. 2

§ 2. It provides uniform procedures for handling prisoners who are imprisoned in one

state but face charges in another state. In particular, it contains an “antishuttling”

provision under which the second state must complete the prisoner’s trial before returning

him to the first state. See id. at Art. IV(e). If it fails to do so, the court of the second state

(in which the prisoner faces fresh charges) must dismiss the indictment. Id. There is no

exception for technical or de minimis violations; the rule applies even if the second state

interrupts the first state’s imprisonment for just a few hours. Alabama v. Bozeman, 533

U.S. 146, 149 (2001).


                                                3
       The Federal Government is a “state” for IADA purposes. See 18 U.S.C. App. 2

§ 2 Art. II(a); United States v. Thompson, 562 F.2d 232, 234 n.2 (3d Cir. 1977) (en banc).

In general, courts must dismiss with prejudice cases in which prosecutors have violated

the antishuttling rule. However, if the United States is the receiving “state,” as it is here,

then courts may dismiss the case with or without prejudice. 18 U.S.C. App. 2 § 9(1).

The IADA lists three factors that courts may consider in deciding whether to dismiss a

case without prejudice: (1) “the seriousness of the offense;” (2) “the facts and

circumstances of the case which led to the dismissal;” and (3) “the impact of a

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

administration of justice.” Id.

       The crux of Munez’s ineffective assistance claim is that a court probably would

dismiss the drug charge with prejudice because of the Government’s IADA violations.

To show that his counsel was ineffective, Munez must prove two things: that his

counsel’s performance was deficient and that the deficiency prejudiced his case.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Both deficiency and prejudice are

required, so a failure on either prong undermines the claim. The District Court

considered only prejudice, as do we. To show prejudice, Munez must show “that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. In this case, that means that Munez

must show a reasonable probability that had his counsel raised the IADA violations, then

either (1) the District Court would have dismissed his case with prejudice or (2) it would

have dismissed his case without prejudice and he would not have pled guilty after


                                               4
reindictment. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[T]o satisfy the ‘prejudice’

requirement [in the guilty plea context], 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.”). Munez bases both arguments on the strength of

his IADA claim. We consider each in turn.

       A.     Dismissal with Prejudice

       Munez satisfies Strickland’s prejudice prong if there is a reasonable probability

that the District Court would have dismissed his case with prejudice had it known of the

Government’s IADA violations. Imagining itself in that scenario, the Court’s

“unequivocal answer” was that its “dismissal would have been without prejudice.”

Munez v. United States, No. 09-cv-3860, 2011 WL 221655, at *6 (D.N.J. Jan. 20, 2011).

We agree that the District Court very likely would have dismissed Munez’s case without

prejudice.

       The first of the three factors that the IADA asks us to consider is the seriousness of

the offense. The charge that Munez faced was serious. When he was indicted, intent to

distribute more than five grams of cocaine base carried a minimum sentence of five

years, with a maximum of 40. See Fair Sentencing Act of 2010, Pub. L. No. 111-220,

§ 2(a)(2), 124 Stat. 2372, 2372 (increasing threshold from 5 to 28 grams). Sentencing

ranges are one indication of a crime’s seriousness, and five years is among the harsher

mandatory minimums for nonviolent crimes. See 18 U.S.C. § 2381 (imposing a five-year

mandatory minimum for treason); United States v. McKinney, 395 F.3d 837, 841 (8th Cir.

2005) (holding that a firearm crime was “serious” for IADA purposes in part because it


                                             5
carried a maximum sentence of ten years). Moreover, as the District Court noted,

Munez’s 12 felony convictions leave him with almost three times the number of criminal

history points necessary to place him in the top Sentencing Guidelines category.

       With the second IADA factor, we consider whether the circumstances would

typically lead to dismissal. The Government violated the IADA in this case because an

administrative assistant filed Munez’s detainer on the “Unsentenced Prisoner” form,

whereas Munez was a sentenced prisoner. He was not alone. The Deputy United States

Marshal for Camden, New Jersey later uncovered the same mistake in five other recent

cases there. Munez contends that there is a reasonable probability that a court would

dismiss his case with prejudice to discourage similar oversights in the future. Such

negligence by the Marshals Service is a problem, and we do not condone it. However,

the Marshals Service swiftly took steps to remedy the problem. It trained its staff,

amended its initial appearance checklist to cover potential IADA problems, and changed

its writ forms in consultation with the U.S. Attorney’s Office. Furthermore, the oversight

in these cases was neither intentional nor systematic. Therefore, in this case, we believe

that the Government’s errors here are not enough to overwhelm the other factors

supporting a dismissal without prejudice.

       The third and final IADA factor concerns what effect a reprosecution would have

on the agreement on detainers and on the administration of justice. In some cases, it is

important that the state corrections system retain unbroken control over a prisoner, as

when the prisoner is in a rehabilitation program. This is not such a case. Moreover,

because the federal courthouse was only about 40 miles from the New Jersey prison,


                                             6
there was no break in Munez’s communication with his attorney. Indeed, Munez met

with his attorney at both locations several times. The New Jersey and Federal

Governments effectively administered justice alongside one another, without any of the

delays or uncertainties that the IADA targets.

        We decline the lengthy analogy that Munez offers between his case and United

States v. Pope, 183 F. Supp. 2d 773 (D. Md. 2001). Pope is to our knowledge the only

case in which a district court has dismissed an indictment with prejudice for the United

States’ violations of the IADA since § 9 was added in 1988. The defendant in Pope

suffered from a mental illness that may have gone untreated (the facts were uncertain)

because of the Government’s IADA violations, a fact not present here. See id. at 778.

Moreover, Pope’s maximum sentence was 10 years, which the District Court

distinguished from cases with maximum sentences of 19 and 20 years. Id. at 777.

Munez’s maximum sentence was 40 years. Finally, the Marshals Service in Maryland at

the time kept no written documentation of a prisoner’s right to remain in federal custody.

Id. In our case, by contrast, the Marshals Service in New Jersey had procedures in place,

but an administrative assistant got them wrong. While we do not disagree with the

reasoning of Pope, these distinctions are sufficient to lead to the opposite result in our

case.

        For these reasons, Munez has not shown that there is a reasonable probability that

the District Court would have dismissed his indictment with prejudice had it known of

the IADA violations. We thus turn to the other ground with which Munez seeks to

satisfy the Strickland prejudice prong.


                                              7
       B.     Going to Trial after Reindictment

       Munez claims that even if the District Court had dismissed his case without

prejudice, the outcome would have been different because he would not have pled guilty

when the Government reindicted him. The only card that Munez would hold in that

scenario that he did not hold at his actual guilty plea is the IADA violation. He cites this

as the reason that he would plead not guilty, “given the potential for success on appeal”

of his IADA claim. Munez Br. at 23.

       However, as discussed above, the IADA claim had limited potential for success on

appeal. Moreover, had Munez pled not guilty, he would have faced the threat of a much

longer sentence, in part because of less overlap with his New Jersey sentence. His

chances of winning at trial were slight, as the Government had a strong case, including

three audio-recorded drug buys without any apparent procedural blemish. Perhaps for

these reasons, Munez was shaky on this question at his evidentiary hearing. The District

Court “carefully observed [Munez] . . . . His self-interest in the matter, his evasive or

even illogical demeanor while testifying, and his self-contradictions undermine his

insistence that he would have gone to trial in this case after reindictment.” Munez, 2011

WL 221655, at *7. The record does not contradict the District Court’s observations, and

we defer to the Court’s assessment of credibility based on demeanor. See United States

v. Brown, 631 F.3d 638, 643 (3d Cir. 2011).

                                      *   *   *   *   *

       Because Munez has not shown a reasonable probability that the outcome of his

case would have differed had his counsel raised the Government’s IADA violations,


                                              8
either because the District Court would have dismissed it with prejudice or because he

would have pled not guilty, we need not reach the deficiency prong of ineffective

assistance analysis. We therefore affirm.




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