Walter Leroy Moody, Jr. v. Warden Holman CF

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[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.
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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
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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
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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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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
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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.
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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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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.
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