The opinion of the court was delivered by: WEBER
Petitioner, by a motion under 28 U.S.C. § 2255, seeks the vacation of sentence on two criminal convictions for robbery under 18 U.S.C. § 2113. Petitioner asserts that the failure of trial counsel to raise any objection to violations of the Interstate Agreement on Detainers Act, 18 U.S.C.App. pp. 1395-98 (1976) (hereinafter IAD), deprived petitioner of his Sixth Amendment Right to the effective assistance of counsel. The matter was remanded to this court for the limited purpose of conducting an evidentiary hearing on this point. United States v. Williams, 615 F.2d 585, (3d Cir. 1980). We conclude that counsel's conduct of petitioner's case meets the standard of "customary skill and knowledge" required in this circuit by Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970), thereby fulfilling the constitutional requirement.
At the time of the robbery for which he was convicted Williams was on a pre-release program from the State Correctional Institution in Pittsburgh where he was serving a six to twelve year sentence for a 1973 state conviction for voluntary manslaughter. Upon the robbery arrest, Williams was returned to state custody.
On May 7, 1976, a federal detainer was lodged against Williams at the State Correctional Institution at Pittsburgh, Pa. An indictment against Williams for single violations of 18 U.S.C. § 2113(a) & (d), bank robbery and assault with a deadly weapon, was returned by a federal grand jury on June 9, 1976. State charges arising from the same incident had been filed against Williams, but were dropped upon the institution of the federal prosecution. Williams plead not guilty to the federal charges and on September 2, 1976, Williams was convicted by a jury on both counts. He was sentenced on March 21, 1977 and began serving his term of imprisonment on August 24, 1977. Williams took no appeal from his conviction and sentence.
On various occasions from May 18, 1976 to December 9, 1976, pursuant to writs of habeas corpus ad prosequendum, Williams was transferred from state custody at the State Correctional Institution in Pittsburgh to federal custody for appearance before the United States District Court in Pittsburgh in connection with the federal charges against him. On each occasion he was returned to state custody.
Subsequent to his conviction and sentencing, Williams filed this pro se motion to vacate, set aside, or reduce sentence under 28 U.S.C. § 2255, contending that such transfers were in violation of the IAD, that prior to trial he had raised the possibility of the violations with his attorney, and that his attorney's failure to raise these violations or to adequately research the issue exhibited ineffectiveness of counsel. The Third Circuit, on appeal from the denial of this motion without a hearing by this court, vacated judgment and remanded the case for a hearing on the narrow issue of whether Williams was denied his Sixth Amendment Right to effective assistance of counsel. United States v. Williams, 615 F.2d 585 (3d Cir. 1980). This court held hearings on the issue on July 31, 1980.
Williams testified that he first became aware of the IAD while in the State Correctional Institution awaiting trial on the federal charges. He raised the issue with trial counsel and they discussed it at some time prior to the trial date. Petitioner recalled that when he raised the matter, counsel expressed his belief that the IAD was inapplicable to his client's case because the act did not regulate transfers from state to federal custody which did not involve transportation across state lines. Petitioner argues that, having been informed that the violations of the IAD were a possible means of dismissing the indictment, counsel should have researched the issue and made such a motion during or after trial. The failure to do so, it is urged, constitutes ineffectiveness of counsel.
The Supreme Court addressed the issue of the IAD's application to writs of habeas corpus ad prosequendum in United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). The Court held that such a writ was not a "detainer" but a "request for temporary custody" as those terms are used in the IAD, and therefore the IAD would apply to the writ when issued after a detainer had been lodged. The Court did not reach this decision until long after Williams' conviction. Prior to the Mauro decision, the state of the law was such that the IAD was not considered applicable to transfers between state and federal custody within a single state.
The settled yardstick for measuring the adequacy of legal representation in this Circuit is "the exercise of the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). This standard does not require perfect representation, but competency in the conduct of a client's case. Id., at 736; United States ex rel Johnson v. Johnson, 531 F.2d 169 (3d Cir. 1976), cert. denied 425 U.S. 997, 96 S. Ct. 2214, 48 L. Ed. 2d 823 (1976).
The failure of counsel to anticipate an advance in the law, "even though not wholly unanticipated" in the legal field, does not automatically constitute ineffectiveness of counsel. United States v. Canniff, 521 F.2d 565, 573 (2d Cir. 1975), cert. denied 423 U.S. 1059, 96 S. Ct. 796, 46 L. Ed. 2d 650 (1976). Counsel in the instant case did fail to anticipate the shift in the law begun by the lower courts in Sorrell and Mauro which culminated in the Supreme Court's decision in Mauro. The issue then is whether counsel's failure to recognize the creation of a new application of the IAD deprived petitioner of his Sixth Amendment Right.
At the hearing held July 31, 1980, counsel testified to his understanding of the IAD at the time of the trial. He stated that he "did not believe that the procedure ... of obtaining jurisdiction over a defendant by use of the federal writ of habeas corpus ad prosequendum by itself, fell under the Detainer Act." Record, at 12. This belief was correct in light of prior practice, the question is whether counsel could have anticipated a change in the law.
The District Court opinions in Sorrell and Mauro were filed less than four months prior to Williams' trial. There is a considerable time lag between the filing of an opinion and its appearance in the advance sheets of the Reporter system, often lasting several months. It is possible that at the time Williams raised the issue with counsel, these decisions were not yet published, and therefore not easily discoverable.
Even if the decisions in Sorrell and Mauro had been published prior to Williams' trial, their precedential value would have been at least questionable. The opinions were those of trial courts of other districts and the holdings were contrary to common practice in this district, and decisions by the respective appeals courts were not made until after Williams' trial. United States v. Sorrell, 562 F.2d 227 (3d Cir. 1977) (en banc), cert. ...