Walter Leroy Moody, Jr. v. Warden Holman CF , 887 F.3d 1281 ( 2018 )


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  •                Case: 18-11229    Date Filed: 04/18/2018     Page: 1 of 24
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-11229
    ________________________
    D.C. Docket No. 1:18-cv-00063-CG-B
    WALTER LEROY MOODY, JR.,
    Petitioner - Appellant,
    versus
    WARDEN HOLMAN CF,
    Respondent - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    ________________________
    (April 18, 2018)
    Before WILSON, MARTIN, and JORDAN, Circuit Judges.
    JORDAN, Circuit Judge:
    Walter Leroy Moody, Jr. faces execution on April 19, 2018, in Alabama for
    the 1989 murder of Eleventh Circuit Judge Robert Vance. After the Alabama
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    Supreme Court set an execution date, Mr. Moody filed a counseled petition for a
    writ of habeas corpus pursuant to 
    28 U.S.C. § 2241
    . He named the warden of the
    Alabama facility where he is currently incarcerated as the respondent, and asserted
    in two related claims that under federal law Alabama cannot legally carry out his
    scheduled execution. He argued that before Alabama can put him to death, he
    must first be returned to the custody of the United States to serve federal sentences
    of life imprisonment which had been imposed on him at an earlier time. If Mr.
    Moody is correct, Alabama will never be able to execute him because he will die in
    federal prison.
    The district court ruled that Mr. Moody lacked Article III standing and that
    he failed to obtain Eleventh Circuit authorization for his second claim, which
    amounted to an unauthorized second or successive habeas corpus petition under 
    28 U.S.C. § 2254
    . See 
    28 U.S.C. § 2244
    (b)(2)–(3). It therefore dismissed his case
    without prejudice. When Mr. Moody appealed, we expedited briefing and invited
    the United States to present its views. We heard oral argument on April 12, 2018.
    We affirm the dismissal of Mr. Moody’s § 2241 petition, but on different
    grounds. We conclude that Mr. Moody has standing, and that his second claim
    does not constitute an unauthorized second or successive § 2254 petition. We also
    hold, however, that Mr. Moody’s claims fail on the merits, and we remand the case
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    to the district court with instructions to enter a judgment dismissing those claims
    with prejudice.1
    I
    In December of 1989, Mr. Moody mailed four package bombs to locations
    in Alabama, Georgia, and Florida. Two of those bombs detonated, killing United
    States Circuit Judge Robert Vance at his home in Alabama and civil rights attorney
    Robert Robinson at his office in Georgia.
    A federal jury convicted Mr. Moody of 71 charges related to the bombings,
    and the district court sentenced him in August of 1991 to seven consecutive terms
    of life imprisonment and a concurrent term of 400 years.                 The district court
    remanded Mr. Moody “to the custody of the United States Marshal,” D.E. 1, Exh.
    A at 3, and he was incarcerated at the United States Penitentiary in Marion,
    Illinois. His federal convictions and sentences were affirmed on direct appeal. See
    United States v. Moody, 
    977 F.2d 1425
     (11th Cir. 1992).
    After the federal proceedings, a grand jury in Jefferson County, Alabama,
    indicted Mr. Moody for the murder of Judge Vance and the injuries sustained in
    the explosion by his wife, Helen Vance. To secure custody of Mr. Moody for
    prosecution in Alabama, a state circuit court issued a writ of habeas corpus ad
    prosequendum on February 17, 1992. That writ ordered the United States Marshal
    1
    We are grateful for the assistance provided by counsel for Mr. Moody, Alabama, and the United
    States, and thank them for their excellent work.
    3
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    and the Sheriff of Jefferson County to “produce the body of” Mr. Moody before
    the court for a hearing, and for a trial then scheduled for May 4, 1992. See D.E. 1,
    Exh. B. The writ also contemplated that Alabama authorities would return Mr.
    Moody to federal custody once the state proceedings were over. It stated that “at
    the conclusion of said hearing the body of . . . [Mr.] Moody . . . be returned to the
    custody of the United States Marshal in the U.S. Penitentiary, Marion, Illinois, all
    in accordance with the regulations and directions of the United States Marshal.”
    
    Id.
     Several days later, the writ was executed and Mr. Moody was brought from
    Marion to Jefferson County.
    An Alabama jury found Mr. Moody guilty of capital murder and assault, and
    in February of 1997 the trial court sentenced him to death for Judge Vance’s
    murder. In December of 1998 the United States Marshal for the Southern District
    of Alabama filed a detainer with the Alabama Department of Corrections. The
    detainer acknowledged that Mr. Moody was in Alabama custody and requested as
    follows: “Prior to [Mr. Moody’s] release from your custody, please notify this
    office at once so that we may assume custody of [him] for service of his Federal
    sentence of imprisonment.” D.E. 1, Exh. G. The detainer also stated that “[t]he
    notice and speedy trial requirements of the Interstate Agreement on Detainers Act
    do NOT apply to this [d]etainer.” 
    Id.
     The Alabama Department of Corrections
    acknowledged receipt of the federal detainer on December 22, 1998. The detainer
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    did not request that Mr. Moody be transferred to federal custody once his state
    court proceedings were completed.
    Mr. Moody appealed his state convictions and sentences, but the Alabama
    Court of Criminal Appeals affirmed. See Moody v. State, 
    888 So. 2d 532
     (Ala.
    Crim. App. 2003), writ denied, 
    888 So. 2d 605
     (Ala. 2004). After pursuing state
    post-conviction remedies, Mr. Moody sought federal habeas corpus relief pursuant
    to 
    28 U.S.C. § 2254
    . The district court denied Mr. Moody’s § 2254 petition, and
    we affirmed. See Moody v. Commissioner, 682 F. App’x 802 (11th Cir. 2017).
    Mr. Moody has been on death row at Holman Correctional Facility in
    Atmore, Alabama, for the last 20 years. He has never been returned to the United
    States Penitentiary in Marion, Illinois. In this court, the United States has stated—
    in writing and at oral argument—that it has no objection to Alabama maintaining
    custody of Mr. Moody for the purpose of carrying out the death sentence.
    II
    Mr. Moody argues on appeal that he is entitled to habeas relief under § 2241
    because Alabama’s wrongful retention of him violates the writ of habeas corpus ad
    prosequendum (through which he was transferred to Alabama for prosecution),
    federal law, and his constitutional right to due process. See Petition at 6–11. He
    relies on 28 C.F.R § 527.31(c), which provides that a state requesting transfer of a
    federal prisoner pursuant to a writ of habeas corpus ad prosequendum must state in
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    its request that it “will return the inmate to [federal] custody promptly on
    conclusion of the inmate’s appearance in the state or local proceeding for which
    the writ is issued.” See also 4B U.S. Op. Off. Legal Counsel 719, 728, 
    1980 WL 20978
     (1980) (explaining that “[a] non-IAD agreement to transfer custody to a
    state for purposes of prosecution should include all legally available safeguards of
    both the prisoner’s and the government’s interests”). He also contends that he is
    serving his federal sentences in a designated state facility, and that, as a result,
    Alabama cannot execute him until his federal sentences of life imprisonment are
    completed. See 
    18 U.S.C. § 3621
    (a) (“A person who has been sentenced to a
    [federal] term of imprisonment . . . shall be committed to the custody of the Bureau
    of Prisons until the expiration of the term imposed, or until earlier released for
    satisfactory behavior pursuant to the provisions of [18 U.S.C. §] 3624.”).
    Our review of Mr. Moody’s § 2241 claims is de novo. See, e.g., Williamson
    v. Fla. Dep’t of Corr., 
    805 F.3d 1009
    , 1016 (11th Cir. 2015); Santiago-Lugo v.
    Warden, 
    785 F.3d 467
    , 471 (11th Cir. 2015). The same plenary standard of review
    governs two questions antecedent to the merits: whether Mr. Moody has standing,
    and whether his second claim constitutes an unauthorized second or successive
    § 2254 petition. See CAMP Legal Def. Fund, Inc. v. City of Atlanta, 
    451 F.3d 6
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    1257, 1268 (11th Cir. 2006) (standing); Stewart v. United States, 
    646 F.3d 856
    ,
    858 (11th Cir. 2011) (second or successive petition). 2
    A
    In a number of cases where prisoners have challenged the order in which
    they were to serve sentences imposed by different sovereigns, we have said that
    they lacked “standing.” See, e.g., DeLong v. United States, 
    474 F.2d 719
    , 720 (5th
    Cir. 1973) (“It is settled that where one sovereign surrenders a prisoner to another
    sovereign for trial, sentencing, and execution of the sentence before he is to be
    returned to the custody of the sovereign first having jurisdiction, the prisoner has
    no standing to attack the agreement between sovereigns[.]”); Chunn v. Clark, 
    451 F.2d 1005
    , 1006 (5th Cir. 1971) (“a prisoner has no standing to contest an
    agreement between two sovereigns concerning the temporary exchange of custody
    of the prisoner on a writ of habeas corpus ad prosequendum, or their agreement as
    to the order of his prosecution and execution of sentences”). The district court,
    relying on these cases, ruled that Mr. Moody lacked Article III standing to pursue
    2
    We asked the parties to brief whether or not Mr. Moody needs a certificate of appealability to
    assert his claims on appeal. We agree with the parties that no certificate is needed because the
    district court dismissed Mr. Moody’s § 2241 petition for lack of subject-matter jurisdiction—i.e.,
    lack of Article III standing. See Hubbard v. Campbell, 
    379 F.3d 1245
    , 1247 (11th Cir. 2004) (“a
    certificate [of appealability] is unnecessary to permit us to review the district court’s order of
    dismissal”). Alabama recognizes that Hubbard is binding, but argues that it was wrongly
    decided. To avoid any issues should a certificate be required, we alternatively grant one on both
    of Mr. Moody’s claims. See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003) (permitting the
    issuance of a certificate of appealability if the petitioner shows that “reasonable jurists could
    debate whether . . . the petition should have been resolved in a different manner or that the issues
    presented were adequate to deserve encouragement to proceed further”) (quotation marks
    omitted).
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    the relief requested in his § 2241 petition and dismissed his case without prejudice
    for lack of subject-matter jurisdiction.
    Mr. Moody challenges this ruling on appeal, while Alabama defends it. The
    United States, for its part, submits that Mr. Moody has standing. Given the
    language in some of our prior cases, we can understand why the district ruled the
    way that it did. Nevertheless, the district court’s understanding of our precedent—
    while reasonable—was mistaken.
    The Supreme Court has cautioned that federal courts “must not ‘confuse
    weakness on the merits with absence of Article III standing.’” Ariz. St. Leg. v.
    Ariz. Indep. Redistricting Comm’n, 
    135 S. Ct. 2652
    , 2663 (2015) (quoting Davis v.
    United States, 
    564 U.S. 229
    , 249 n.10 (2011)) (alteration adopted). At times, these
    “distinct concepts can be difficult to keep separate.” Bond v. United States, 
    564 U.S. 211
    , 218 (2011). But “standing in no way depends on the merits of the
    plaintiff’s contention that particular conduct is illegal.” Warth v. Seldin, 
    422 U.S. 490
    , 500 (1975). See also Pedro v. Equifax, Inc., 
    868 F.3d 1275
    , 1279 (11th Cir.
    2017) (explaining that Article III standing “must be addressed prior to and
    independent of the merits of a party’s claims”) (emphasis added). Cf. Chafin v.
    Chafin, 
    568 U.S. 165
    , 174 (2013) (“Ms. Chafin argues that the case is moot
    because the [d]istrict [c]ourt lacks the authority to issue a re-return order under the
    [Hague] Convention or pursuant to its inherent equitable powers.             But that
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    argument—which goes to the meaning of the Convention and the legal availability
    of a certain kind of relief—confuses mootness with the merits.”).
    In Bond, the Supreme Court faced a similar issue due to loose language in its
    own precedent.     In Tennessee Electric Power Company v. Tennessee Valley
    Authority, 
    306 U.S. 118
     (1939), the Court had treated “standing” and the lack of a
    “cause of action” as interchangeable concepts, explaining that a power company
    lacked “standing” because it had “no right to sue for an injunction.” Bond, 
    564 U.S. at 218
     (quoting Tenn. Elec., 
    306 U.S. at 142
    ). Bond explained that viewing
    these concepts as interchangeable caused confusion, and that its “decisions since
    Tennessee Electric ha[d] been careful to use the terms ‘cause of action’ and
    ‘standing’ with more precision.” Bond, 
    564 U.S. at 218
    .
    Heeding that warning, we too have endeavored to treat the concepts
    distinctly as well. See, e.g., Culverhouse v. Paulson & Co., Inc., 
    813 F.3d 991
    , 994
    (11th Cir. 2016) (explaining that, to decide standing, “the court must be careful not
    to decide the questions on the merits,” and holding that the district court should
    have dismissed the case for failure to state a claim, rather than for lack of subject-
    matter jurisdiction). The reference in our earlier cases to lack of standing is
    therefore best seen as shorthand for holding that the prisoners in question, as a
    matter of substantive law, did not have a claim that would entitle them to habeas
    relief. See Morse v. United States, 
    267 U.S. 80
    , 82 (1925) (explaining that the
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    complaint of a prisoner concerning a dispute between two jurisdictions in which he
    has been charged is “not reviewable on habeas corpus”).
    Because it relied on the language in our prior cases, the district court did not
    analyze the familiar three-part test for Article III standing: injury-in-fact,
    causation, and redressability. See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    ,
    560–61 (1992). We proceed to conduct that analysis here, keeping in mind that
    “when standing becomes an issue on a motion to dismiss, general factual
    allegations of injury resulting from the defendant’s conduct may be sufficient to
    show standing.” Bishoff v. Osceola Cnty., 
    222 F.3d 874
    , 878 (11th Cir. 2000).
    First, Mr. Moody has alleged an injury-in-fact. He claims that Alabama is
    wrongfully exercising custody of him and that it refuses to return him to the
    custody of the United States to serve his federal sentences of life imprisonment.
    And he contends that, if Alabama is not required to relinquish custody, he will
    imminently suffer an injury—his scheduled execution. We think it is beyond
    dispute that the potential loss of life is a cognizable injury for purposes of Article
    III. As Judge Learned Hand put it in an almost identical case many decades ago:
    “Obviously [a petitioner facing execution by the state] has actually the greatest
    possible interest in serving the remainder of his federal sentence.” United States
    ex rel. Buchalter v. Warden of Sing Sing Prison, 
    141 F.2d 259
    , 259 (2d Cir. 1944).
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    Second, Mr. Moody has alleged causation.           He asserts that Alabama’s
    refusal to return him to the custody of the United States in accordance with federal
    law is what will cause his execution. This easily establishes that Mr. Moody’s
    injury (the imminent loss of life due to execution) is “fairly traceable to the
    challenged action” of Alabama (the failure to return him to the federal
    government).    See Lujan, 
    504 U.S. at 560
     (alterations adopted).          “Proximate
    cause,” after all, “is not a requirement of Article III standing[.]” Lexmark Int’l,
    Inc. v. Static Control Components, Inc., 
    134 S. Ct. 1377
    , 1391 n.6 (2014).
    Third, Mr. Moody has alleged redressability. If Mr. Moody is correct and
    succeeds in obtaining an order (such as an injunction) requiring Alabama to return
    him to the custody of the United States, his injury would be redressed because—
    given his federal sentences of life imprisonment—he would not (absent a pardon or
    early release) be executed. We therefore conclude that Mr. Moody has sufficiently
    pled that his injury is likely to be redressed by a favorable decision. See Lujan,
    
    504 U.S. at 561
    . See also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs.
    (TOC), Inc., 
    528 U.S. 167
    , 185–86 (2000) (“[F]or a plaintiff who is injured or
    faces the threat of future injury due to illegal conduct ongoing at the time of suit, a
    sanction that effectively abates that conduct and prevents its recurrence provides a
    form of redress.”).
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    Alabama contends that Mr. Moody has not pled an injury, that he “has no
    real, personal stake in the outcome of these proceedings,” and that “[i]f a prisoner
    has no right to serve his sentences in any particular order, then he cannot receive
    redress.” Those arguments, however, are not persuasive because they conflate the
    standing of Mr. Moody with the merits of his claims. There is no Article III
    requirement that Mr. Moody “demonstrate a connection between the injur[y] [he]
    claim[s] and the . . . rights being asserted.” Duke Power Co. v. Carolina Envt’l
    Study Grp., Inc., 
    438 U.S. 59
    , 78 (1978) (rejecting argument that injuries that did
    not “directly relate[ ] to the constitutional attack” could not “supply a predicate for
    standing”). Article III also does not demand that the redress sought by a plaintiff
    be complete.     See I.L. v. Alabama, 
    739 F.3d 1273
    , 1282 (11th Cir. 2014)
    (concluding that relief that would “redress (at least in part) the plaintiff’s injury
    [was] enough for standing purposes”). If Alabama were correct, then a plaintiff
    who ultimately loses on the merits (and by definition did not have a substantive
    right to relief) would never have had standing to pursue his or her claims in the
    first place. The law does not countenance, much less demand, such a result. See
    Bell v. Hood, 
    327 U.S. 678
    , 682 (1946) (“Jurisdiction . . . is not defeated . . . by the
    possibility that the averments might fail to state a cause of action on which
    petitioners could actually recover.”). Cf. Chafin, 
    568 U.S. at 174
     (explaining that
    an argument regarding “the legal availability of a certain kind of relief” goes to the
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    merits, and that the “prospects of success are therefore not pertinent to the
    mootness inquiry”).
    B
    “[C]hallenges to the execution of a sentence, rather than the validity of the
    sentence itself, are properly brought under § 2241.” Antonelli v. Warden, 
    542 F.3d 1348
    , 1352 (11th Cir. 2008). We conclude that the district court erred in ruling
    that Mr. Moody’s second claim under § 2241 amounted to an unauthorized second
    or successive § 2254 habeas corpus petition within the meaning of § 2244(b)(2)–
    (3). The second claim goes to the execution, i.e., the manner of carrying out, Mr.
    Moody’s Alabama sentences, and not to the validity of those sentences.
    As the Supreme Court has explained, “[a] § 2254 petitioner is applying for
    something: His petition ‘seeks invalidation (in whole or in part) of the judgment
    authorizing the prisoner’s confinement[.]’ . . . Thus, both § 2254’s text and the
    relief it provides indicate that the phrase ‘second or successive’ [in § 2244(b)] must
    be interpreted with respect to the judgment challenged.” Magwood v. Patterson,
    
    561 U.S. 320
    , 332 (2010) (quoting Wilkinson v. Dotson, 
    544 U.S. 74
    , 83 (2005))
    (emphasis removed). The second claim in Mr. Moody’s § 2241 petition does not
    seek to vacate or set aside any of the Alabama convictions and sentences. Instead,
    the claim requests that those sentences (including the death sentence for the murder
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    of Judge Vance) be carried out only after Mr. Moody serves the sentences first
    meted out by the United States.
    We recognize, of course, that if Mr. Moody is ultimately successful in his
    § 2241 petition, and if he fully serves his federal sentences, he will effectively
    prevent Alabama from ever executing him. But that is not because the Alabama
    sentence of death is claimed to be legally invalid under federal law. It is because
    of the order in which the two sovereigns must (in Mr. Moody’s view) carry out
    their respective sentences, and because of the length of the federal sentences. If
    Mr. Moody, for example, had been sentenced to a total of 20 years in prison for his
    federal offenses, his transfer to federal custody after the Alabama proceedings
    were complete would not have prevented Alabama from carrying out the death
    penalty because Alabama would have obtained custody of Mr. Moody again once
    his federal sentences were fully served.
    C
    This brings us to the merits. Three Supreme Court cases from the 1920s set
    the stage for our review of Mr. Moody’s claims on appeal.
    In Ponzi v. Fessenden, 
    258 U.S. 254
     (1922), a habeas corpus case, a prisoner
    in federal custody following his conviction on federal charges sought to challenge
    his transfer to state custody to face state charges through a writ of habeas corpus ad
    prosequendum issued by a state court. The Supreme Court affirmed the denial of
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    habeas relief. It explained that, “[u]ntil the end of his [federal] term and discharge,
    no state court could assume control of [the prisoner’s] body without the consent of
    the United States.”     
    Id. at 261
    .     Although there was “no express authority
    authorizing the transfer of a federal prisoner to state court” for purposes of a state
    prosecution, the Supreme Court held that the Attorney General could consent to
    such a transfer, “provided it d[id] not prevent enforcement of the sentence of the
    federal court or endanger the prisoner.” 
    Id. at 262, 263
    . Because an Assistant
    Attorney General—at the direction of the Attorney General—had “stated in open
    court that the United States had no objection to the issuance of the writ, or to the
    production” of the prisoner for trial in state court, 
    id. at 256
    , the prisoner could not
    obtain habeas relief. See also 
    id. at 260
     (explaining that a prisoner who is alleged
    to have violated the law of two or more sovereigns “may not complain if one
    sovereignty waives its strict right to exclusive custody of him . . . that the other
    may also subject him to conviction of [a] crime against it,” because this
    determination “addresses itself solely to the discretion of the sovereignty making it
    and [ ] its representatives with power to grant it”).
    Another habeas corpus case, Morse, followed a couple of years later. The
    issue in Morse was whether defendants who were traveling to Washington, D.C.,
    for trial on federal charges could be arrested in New York on separate federal
    charges pending there. See 
    267 U.S. at 82
    . The Supreme Court rejected the
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    defendants’ Fifth Amendment due process claims. First, the “principle that when
    the jurisdiction of a court has attached, it must be respected as exclusive until
    exhausted, is a rule of comity, having a wide application in civil cases but a limited
    one in criminal cases.” 
    Id.
     Second, “if there be a violation of the rule of comity
    here, it primarily concerns only the courts or the sovereignty which is their
    common superior and cannot avail the [defendants] indicted for crimes in different
    jurisdictions. Moreover, their constitutional rights are not affected; and if there
    was any error in any respect, it is not reviewable on habeas corpus.” 
    Id.
    On the heels of Morse came Kelley v. Oregon, 
    273 U.S. 589
     (1927), which
    arrived in the Supreme Court on a writ of error. In that case the Court held that a
    prisoner who is subject to an unexpired sentence of a term of years and a
    subsequent sentence of death for different crimes in the same jurisdiction cannot
    demand that he not be executed until the initial unexpired sentence is completed.
    The Court explained that the prisoner “has no vested constitutional right to serve
    out his unexpired sentence.” 
    Id. at 593
    .
    None of these Supreme Court cases directly control here. Ponzi and Morse
    are distinguishable because they did not involve the service of sentences imposed
    by different sovereigns, and because Ponzi suggests that the consent of the United
    States to have a convicted federal prisoner tried in state court should not prevent
    enforcement of an initial (and unexpired) federal sentence; Kelley is
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    distinguishable because it involved two sentences imposed by the same sovereign.
    Nevertheless, the cases provide important background, as they indicate (a) that
    primary jurisdiction in the criminal realm is a matter of comity that can be waived
    by the first sovereign in favor of the second sovereign, and (b) that a prisoner does
    not have a right cognizable in habeas corpus to complain about the order of his
    prosecutions or sentences. See generally B. Van Arsdale et al., Federal Procedure
    § 22:52 (Feb. 2018) (“[A] defendant who has violated the laws of both the United
    States and a state . . . cannot complain of one sovereign[’s] waiver of its right to
    exclusive custody of the defendant for vindication of its laws or choose the manner
    or order in which the sovereign proceeds.”) (citations omitted).
    The writ of habeas corpus ad prosequendum that brought Mr. Moody into
    Alabama’s custody provided that he would be returned to federal custody once the
    state proceedings were completed. See D.E. 1, Exh. B. The language of the writ
    was consistent with 
    28 C.F.R. § 527.31
    (c), the federal regulation cited by Mr.
    Moody. So in one sense it may be said that Alabama wrongfully retained custody
    of Mr. Moody once the Alabama criminal proceedings were complete.
    But the detainer which the United States lodged with Alabama in 1998
    acknowledged that Mr. Moody was in state custody and requested only that
    Alabama provide the United States with notice “prior to [Mr. Moody’s] release
    from [Alabama] custody” so that it could then “assume custody of [him] for
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    service of his Federal sentence of imprisonment.” D.E. 1, Exh. G. The language
    of the detainer suggests that in the late 1990s the United States had decided to have
    Alabama keep custody of Mr. Moody for an indefinite period of time. See Causey
    v. Civiletti, 
    621 F.2d 691
    , 693 (5th Cir. 1980) (“Perhaps the federal government
    had the power to require that Causey’s federal sentence be served first,
    immediately after the state prosecution was completed, but it did not choose to do
    so. This is evidenced by its issue of a detainer to the Florida Department of
    Corrections instructing that department to notify the United States Marshal[’s]
    Service when Causey was released from state custody, so that his federal sentence
    could then be served.”).
    To the extent the detainer is ambiguous, the United States has told us, in
    writing and at oral argument, that it does not object to Alabama keeping custody of
    Mr. Moody for the purpose of carrying out the death sentence for the murder of
    Judge Vance. See Ponzi, 
    258 U.S. at 256
    . That representation eliminates the need
    for an evidentiary hearing to ascertain the position of the federal government. Cf.
    Lebosky v. Saxbe, 
    508 F.2d 1047
    , 1050–52 (5th Cir. 1975) (remanding for an
    evidentiary hearing to determine in part whether Louisiana had demanded, or the
    United States had agreed, that a prisoner be taken back into federal custody
    pursuant to a detainer). The question is whether the United States can waive its
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    primary custody of Mr. Moody and permit Alabama to proceed. We agree with
    the United States and Alabama that the answer to that question is yes.
    A number of federal and state cases hold that someone in Mr. Moody’s
    precise situation cannot delay his execution by the second sovereign until he
    finishes serving a non-capital sentence imposed by the first sovereign. See
    Buchalter, 141 F.2d at 259–60 (habeas corpus case – the Attorney General
    surrendered custody of a convicted federal prisoner to state authorities for
    execution on a subsequent state murder conviction); Poland v. Stewart, 
    117 F.3d 1094
    , 1097–98 (9th Cir. 1997) (habeas corpus case – the Attorney General
    transferred custody of a convicted federal prisoner to state court, where he was
    convicted of murder and sentenced to death, and chose to leave him in state
    custody); Pitsonbarger v. Gramley, 
    103 F.3d 1293
    , 1300, 1303 (7th Cir. 1996),
    vacated, 
    522 U.S. 802
     (1997), reinstated in relevant part, 
    141 F.3d 728
    , 734 (7th
    Cir. 1998) (habeas corpus case with a claim under the Illinois version of the
    Interstate Agreement on Detainers Act – the governor of Nevada, the state in
    which the prisoner was first convicted and sentenced to terms of life imprisonment,
    entered into an agreement with the governors of Illinois and Missouri that the
    prisoner would be housed in whatever state subsequently imposed the death
    penalty, and that if there was no death sentence, the prisoner would be returned to
    Nevada); State v. Thornton, 
    929 P.2d 676
    , 684 (Ariz. 1996) (direct appeal with a
    19
    Case: 18-11229       Date Filed: 04/18/2018       Page: 20 of 24
    claim under Arizona’s version of the Interstate Agreement on Detainers Act – the
    prisoner was sentenced to death in Arizona but was not returned to the custody of
    the United States to finish serving his unexpired federal sentence). We have not
    been able to find any contrary authority, and Mr. Moody has not pointed us to
    any. 3
    The rationale of these cases is that the prisoner does not have a cognizable
    federal right to require the first sovereign to take back custody and have him
    complete its unexpired sentence. Judge Learned Hand put it this way in Buchalter,
    a case which is in all relevant respects identical to Mr. Moody’s:
    Obviously, he [the prisoner] has actually the greatest possible interest
    in serving the remainder of his federal sentence, and the only question
    is whether that is an interest that the law recognizes: i.e., whether it is
    a ‘right.’ It is not. . . . If it was unlawful for the Attorney General to
    surrender custody of the prisoner, and to make it impossible for any
    further execution of the federal sentence, it was not a wrong for him,
    for that sentence was imposed only in the interest of the United States,
    not in any degree whatever as a benefit to the relator. He has been
    deprived of nothing to which he was entitled; if the United States has
    been so deprived, he may not vicariously assert its rights.
    141 F.2d at 259–60.
    3
    The main case cited by Mr. Moody, In re Liberatore, 
    574 F.2d 78
    , 87–90 (2d Cir. 1978), held
    that a federal court which had found a person serving a state sentence to be in civil contempt
    could not judicially suspend the pending state sentence in favor of the newly-imposed federal
    contempt sentence. Although there is language in the opinion indicating that a loan of a prisoner
    by the first sovereign cannot affect the running of the sentence imposed by that sovereign, see 
    id.
    at 89–90, the case did not involve any waiver by the first sovereign of its right to have its
    sentence carried out without interruption.
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    Case: 18-11229    Date Filed: 04/18/2018   Page: 21 of 24
    If these cases were the only ones on the books, we would have to decide
    whether to follow them as persuasive. Our own precedent, however, forecloses
    Mr. Moody’s substantive assertion that the Alabama execution cannot be carried
    out until the federal sentences of life imprisonment are completed.
    Decided about 20 years ago, Remeta v. Singletary, 
    85 F.3d 513
     (11th Cir.
    1996), involved a Florida prisoner who committed a series of murders in Florida
    and Kansas. He pled guilty in Kansas to three homicides and received several
    consecutive life sentences. He was then extradited to Florida, where he was
    convicted and sentenced to death for another murder occurring there. See 
    id. at 515
    . After pursuing post-conviction relief in Florida, he filed a petition for a writ
    of habeas corpus in federal court, asserting among other things that under Florida’s
    version of the Interstate Agreement on Detainers Act he could not be executed and
    had to be returned to Kansas. His argument was based in part on the fact that he
    had signed an extradition waiver which provided that he would be returned to
    Kansas following the criminal proceedings in Florida. See 
    id.
     at 516–17.
    We assumed that the waiver was not knowing and intelligent, but held that
    the prisoner was not entitled to habeas relief even if Kansas had not expressly
    agreed to leave him in Florida’s custody: “Even if we were to assume that Florida
    has failed to honor its statutory commitment to Kansas under the IAD, . . . this
    appears to be a matter exclusively between Florida and Kansas. The resolution of
    21
    Case: 18-11229   Date Filed: 04/18/2018   Page: 22 of 24
    an IAD dispute between these two states (if such a dispute exists) may necessitate
    that Kansas seek an injunction to force Florida to abide by its agreement, return
    [the prisoner], and allow him to serve out his Kansas sentence. This is not a matter
    for federal habeas review.” 
    Id. at 519
    .
    Remeta is consistent with a number of Former Fifth Circuit cases—many of
    which were cited by the district court—explaining that a person who has violated
    the laws of two sovereigns cannot choose (or have a federal court direct) which
    sentence he serves first, as long as the first sovereign consents to have the second
    sovereign take custody. See Causey, 
    621 F.2d at
    692–94; DeLong, 
    474 F.2d at 720
    ; Chunn, 
    451 F.2d at 1006
    ; Montos v. Smith, 
    406 F.2d 1243
    , 1245 (5th Cir.
    1969); Zerbst v. McPike, 
    97 F.2d 253
    , 254 (5th Cir. 1938). Remeta is also in
    accord with the general law in our sister circuits. See, e.g., Jeter v. Keohane, 
    739 F.2d 257
    , 258 (7th Cir. 1984); Williams-El v. Carlson, 
    712 F.2d 685
    , 686 (D.C.
    Cir. 1983).
    Here the United States does not object to Alabama retaining custody of Mr.
    Moody for the purpose of carrying out the death sentence.                Under the
    circumstances, Mr. Moody does not have a cognizable right to demand otherwise,
    and the statutes he relies on—
    18 U.S.C. §§ 3585
    (a) & 3621(c)—do not purport to
    remove or eliminate the United States’ authority to decide whether a federal
    prisoner will serve his subsequently-imposed state sentence first. Cf. Finley v.
    22
    Case: 18-11229       Date Filed: 04/18/2018       Page: 23 of 24
    United States, 
    266 F.2d 29
    , 29 (5th Cir. 1959) (rejecting the claim that a federal
    prisoner could not be sent to state court for trial on pending state charges: “In the
    absence of objections from the United States, the probationer cannot object. The
    question is one of comity between the United States and the State of Georgia. The
    sovereign having prior jurisdiction and custody may waive that right and permit
    another sovereign to proceed.”).4
    III
    Mr. Moody has Article III standing to challenge Alabama’s exercise of
    custody given his previously-imposed federal sentences, and his second claim does
    not amount to an unauthorized second or successive § 2254 habeas corpus petition.
    The district court therefore erred in dismissing Mr. Moody’s § 2241 petition for
    lack of subject-matter jurisdiction. But we “may affirm on any ground supported
    4
    At oral argument, Mr. Moody asserted that his due process rights were violated under the
    principles articulated in Justice O’Connor’s concurring opinion in Ohio Adult Parole Authority v.
    Woodward, 
    523 U.S. 272
    , 288–89 (1998) (O’Connor, J., concurring in part and concurring in the
    judgment) (asserting that a “prisoner under sentence of death remains a living person and
    consequently has an interest in his life,” and that as a result “some minimal procedural
    safeguards apply to a clemency proceeding”). But the due process claim he asserted in his §
    2241 petition was that he was not given an opportunity to challenge the writ of habeas corpus ad
    prosequendum before it was served. See D.E. 1 at 7 n.7. If that is the argument, the claim had to
    be asserted soon after he was placed in Alabama’s custody, or when the United States filed the
    detainer instructing Alabama to provide it with notification of Mr. Moody’s release. Although
    we do not address the issue, we note that some courts have rejected the proposition that a
    sovereign which submits or receives a writ of habeas corpus ad prosequendum must provide the
    prisoner in question with notice and an opportunity to be heard before the writ is complied with.
    See Stewart v. Bailey, 
    7 F.3d 384
    , 391–93 (4th Cir. 1993); Corgain v. Miller, 
    708 F.2d 1241
    ,
    1251–52 (7th Cir. 1983). See also Atkinson v. Hanberry, 
    589 F.2d 917
    , 919–20 (5th Cir. 1979)
    (holding that a federal prisoner has no constitutional right to a hearing before his transfer to a
    state prison pursuant to an interstate detainer).
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    Case: 18-11229     Date Filed: 04/18/2018   Page: 24 of 24
    by the record,” Trotter v. Sec’y, Dep’t of Corr., 
    535 F.3d 1286
    , 1291 (11th Cir.
    2008), and we agree with Alabama’s alternative argument below that Mr. Moody’s
    claims fail on the merits. We therefore affirm the dismissal of Mr. Moody’s
    petition, and remand with instructions that the district court convert the dismissal
    into one with prejudice. See Culverhouse, 813 F.3d at 994 (concluding that the
    district court erred in concluding that the plaintiff lacked standing, but affirming its
    dismissal for failure to state a claim).
    APPEAL AFFIRMED ON MERITS                                   GROUNDS           AND
    REMANDED WITH INSTRUCTIONS.
    24