Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

MEMORANDUM^* 

Barry Jay Feldman appeals pro se from the district court's order denying his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (1982). We review the district court's denial of the motion de novo. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986).

A. Feldman argues that he did not knowingly and intelligently waive his sixth amendment right to counsel before invoking the right to represent himself. While the district court should normally discuss with the defendant the charges against him, the possible penalties and the dangers of self-representation, United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982), this is not required when the record as a whole discloses that the defendant's background, experience and conduct are such that he in fact knowingly and intelligently waived his right to counsel. United States v. Balough, 820 F.2d 1485, 1488 (9th Cir. 1987).

Feldman was unusually articulate and sophisticated for a pro se litigant; the district court was satisfied, with good reason, that he was well aware of what was going on and what he was doing. It is clear from the record that, although the district court did not recite the appropriate litany, Feldman was aware of the nature of the charges, the potential penalties and the hazards of proceeding pro se. By the time of trial, he had been litigating the same one-count robbery charge for eight months, having challenged three successive indictments. He had been provided with copies of the indictments which set forth the charges against him, and had cited the relevant statute in his own papers.

It is also evident that Feldman was aware of the potential penalties. Feldman knew that he could face imprisonment; indeed, that was his stated reason for wanting to rely on his own experience with the criminal justice system in selecting his trial tactics. Excerpt of Record (ER) at 30. The statute, 18 U.S.C. § 2113(a) (1982), which unambiguously stated the maximum sentences he might receive, was reproduced in the government's trial brief.

Finally, on three separate occasions the court cautioned Feldman about the dangers of self-representation. During his first arraignment the district court warned the defendant that he was "making a mistake." ER at 31. During his third arraignment the federal magistrate advised him that "you would probably do a good deal better if you let the lady represent you entirely. She is real [ly] experienced." ER at 32. Later that day, the district court questioned Feldman about whether he wanted his advisory counsel appointed to represent him fully. Finally, just prior to trial, the court reiterated that he should reconsider representing himself: "I think further that you should know, after trying cases for 20 years in this court with many pro se defendants, I cannot recall a single case in which a defendant has been successful." ER at 35-36. Moreover, on several occasions, such as in his motion for appointment of an investigator, Feldman himself referred to the handicaps he faced by refusing appointment of counsel to represent him. Feldman nevertheless proceeded with only advisory counsel; he may not now exploit his own intransigence in challenging his conviction.

B. Feldman also argues that his conviction should be vacated because the federal government failed to comply with certain provisions of the Interstate Agreement on Detainers Act (IADA), 18 U.S.C. app. Sec. 2 (1982). First, he contends that he was not notified of his right to trial within 180 days of requesting final disposition of the criminal charges underlying the detainer. IADA Sec. 2, art. III(c). Feldman's federal trial began well within 180 days of the filing of the detainer, and the failure to notify him of his speedy-trial rights was therefore harmless error.

Second, Feldman argues that because the United States Marshals Service returned him three times to state custody before he was finally tried, the federal charges should have been dismissed with prejudice under the anti-shuttling provision of the IADA. IADA Sec. 2, art. IV(e). It is well established, however, that violations of the anti-shuttling provision must be raised on direct appeal and are not reviewable by means of a section 2255 motion. Hitchcock v. United States, 580 F.2d 964, 966 (9th Cir. 1978).

Feldman contends that the government should be equitably estopped from relying on Hitchcock because failure to advise him of his rights under Article III(c) of the IADA deprived him of the opportunity to raise the shuttling issue at trial or on appeal. We reject this argument. Article III(c) provides that the defendant must be informed of his right to final disposition; it does not require that notice be given of the Article IV(e) anti-shuttling provision. Moreover, the government's failure to advise him of his rights under the IADA does not rise to the level of " 'affirmative misconduct' falling below 'some minimum standard of decency, honor, and reliability.' " Wagner v. Director, Federal Emergency Management Agency, No. 87-6108, slip op. 5657, 5667 (9th Cir. May 20, 1988) (quoting Heckler v. Community Health Servs., Inc., 467 U.S. 51, 61 (1984)). "A mere failure to inform or assist does not justify application of equitable estoppel." Lavin v. Marsh, 644 F.2d 1378, 1384 (9th Cir. 1981); see also INS v. Hibi, 414 U.S. 5, 8-9 (1973) (per curiam).

AFFIRMED.