What is the Anti-Shuttling Rule in Resolving Holds?

In resolving an out-of-state or federal detainer, the Interstate Agreement on Detainers (IAD) forbids transferring an inmate to another jurisdiction where charges are pending and then returning the inmate to the original custody state without fully resolving the charges. Penal Code § 1389, article III(d) and article IV(e).  This is the so-called the “Anti-Shuttling Rule.” If the Anti-Shuttling Rule is violated, the charges must be dismissed. Id.

The prosecutor cannot get around the Anti-Shuttling Rule by voluntarily dismissing the original charges, allowing the inmate to be returned to the custody state, and then refiling the charges anew. People v. Christensen (Ill. 1984) 102 Ill. 2d 321, 329, 465 N.E. 2d 93.

Thankfully, the IAD anti-shuttling provisions are strictly applied.  The IAD prohibits even a transfer between a state prison or jail and a federal prison or jail in the same state. People v. Reyes (1979) 98 Cal. App. 3d 524, 529-530, 159 Cal. Rptr. 572.  Even a very short transfer violates the IAD, though the IAD might not be violated if the inmate is taken to court and returned to the detainer state within the same day. Alabama v. Bozeman (2001) 533 U.S. 146, 152-1556, 121 S. Ct. 2079; 150 L. Ed. 2d 188; but see People v. Litke (1980) 112 Cal. App. 3d 489, 493, 169 Cal. Rptr. 197 (no violation where inmate was taken several times back and forth two blocks between a federal facility and the state court, but never was booked into a state facility).

However, the anti-shuttling rule does not prohibit transfer back to the original custody state on new charges filed in that state that are unrelated to the original conviction and sentence. United States v. Pursley (10th Cir. 2007) 474 F. 3d 757, 763-764.

An inmate who asks to be sent back to the state which first had custody will be deemed to have waived (given up) the right to dismissal of the charges under the IAD Anti-Shuttling Rule. United States v. Black (9th Cir. 1979) 609 F. 2d 1330, 1334; Reyes v. People (Col. 2008) 195 P. 3d 662, 665-666  (waiver of anti-shuttle provision waives all protection against future transfers during the proceedings); People v. Oiknine (1999) 79 Cal. App. 4th 21, 26-27, 93 Cal. Rptr. 2d 720; People v. Williams (1987) 194 Cal. App. 3d 124, 132, 239 Cal. Rptr. 375.  This is so even if the inmate did not know that the transfer request would waive the right to dismissal. United States v. Black (9th Cir. 1979) 609 F. 2d 1330, 1334.

It must be understood that charges are not automatically dismissed when the IAD timelines or the Anti-Shuttling Rule are violated.  An inmate must take further action to obtain a court order dismissing the charges. See, e.g., People v. Rhoden (1989) 216 Cal. App. 3d 1242, 1253-1254, 265 Cal. Rptr. 355 (inmate waived portion of IAD claim that he did not raise in the trial court).

An inmate who does not request dismissal prior to or during trial will most likely waive (give up) the right to challenge any resulting conviction. Reed v. Farley (1994) 512 U.S. 339, 347-350, 114 S. Ct. 2291; 129 L. Ed. 2d 277; Grant v. United States (6th Cir. 1996) 72 F. 3d 503, United States v. Eaddy (6th Cir. 1979) 595 F. 2d 341, 346; People v. Moody (Col. 1984) 676 P. 2d 691, 695; Drescher v. Superior Court (1990) 218 Cal. App. 3d 1140, 1147-1148, 267 Cal. Rptr. 661.

In some cases, an inmate may be able to get around the waiver problem by showing that the failure to raise the issue was due to ineffective assistance by counsel. People v. Waltson (Col. App. 2007) 167 P. 3d 163, 167-168.

Also, an inmate who pleads guilty to the charges will not be allowed to challenge any pre-plea violation of the IAD, unless perhaps the inmate can show that he or she entered the plea involuntarily or due to incompetent attorney advice. Hudson v. Moran (9th Cir. 1985) 760 F. 2d 1027, 1030.

An inmate must file the request for dismissal in the federal or out-of-state court where the charges are pending, even if they have never actually been transferred to the charging jurisdiction. Penal Code § 1389, article V(c).  For example, an inmate in a California prison who wants Nevada charges dismissed should ask the Nevada court to make the dismissal order.  The federal or out-of-state court will apply the IAD as it has been interpreted by the higher-level courts in that jurisdiction.  The court will not be required to follow California court cases interpreting the IAD, although California cases may sometimes provide helpful reasoning supporting the inmate’s position.

There is no standard form for asking a court to dismiss charges under the IAD.  An inmate who wants to get charges dismissed should write and file a motion asking for dismissal of the charges and citing the sections of the IAD that require dismissal. The inmate should attach copies of all the relevant documents – Form 661 and Form 1665 and, if available, copies of the IAD Forms III and IV that were prepared by California officials.

The inmate should send the original motion and documents to the court and send a copy of the motion and attachments to the prosecutor who filed the charges.  The inmate must include a proof of service to inform the court that the documents have been served to the prosecutor.  The public defender’s office where the charges are pending may be able to assist with filing and/or arguing the motion.  If the charges are from the federal government, then the court may dismiss the case either with or without prejudice to re-filing.

 

The court will consider the seriousness of the offense, the circumstances which led to the dismissal, and the impact of further prosecution on the administration of justice. 18 U.S.C. App. 2, § 9; United States v. Kelley (1st Cir. 2005) 402 F. 3d 39, 41; United States v. McKinney (8th Cir. 2005) 395 F. 3d 837, 840; United States v. Johnson (9th Cir. 1999) 196 F. 3d 1000, 1004.

It appears that some states require dismissal with prejudice, but that other states may allow re-filing. Penal Code § 1389, article V(c); see Pethel v. McBride (W.Va. 2006) 219 W. Va. 578, 590, 638 S.E. 2d 727 (allowing dismissal without prejudice).

Also, dismissal of charges for an IAD violation does not prohibit the federal government or other state from keeping custody and charging the inmate with new crimes that were not listed in the detainer and arose out of a different set of facts. United States v. Clark (7th Cir. 2014) 754 F. 3d 401, 408-409; Morrison v. State (Ga. 2006) 280 Ga. 222, 225-226, 626 S.E. 2d 500.

This article would not be possible without reference to the California Prison and Parole Law Handbook, prepared by the Prison Law Office in Folsom, California.  We thank them for their excellent publication.