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                                                                    [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                             ________________________

                                   No. 18-90010
                             ________________________



WALTER LEROY MOODY, JR.,

                                                      Petitioner,
versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                             ________________________

                  On Emergency Petition for Writ of Habeas Corpus
                          Pursuant to 28 U.S.C. § 2241
                          ________________________

                                   (April 18, 2018)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

         Walter Leroy Moody, Jr. has filed an emergency petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Mr. Moody contends that he has been denied

due process as a result of the Attorney General’s unbridled exercise of discretion in
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waiving primary jurisdiction and allowing Alabama to maintain custody of him for

the purpose of carrying out the death penalty for a state murder conviction. He

relies upon Justice O’Connor’s concurring opinion in Ohio Adult Parole Authority

v. Woodard, 523 U.S. 272, 288–89 (1998) (O’Connor, J., concurring in part and

concurring in the judgment). Mr. Moody filed this petition directly with our court

and asks us, pursuant to Federal Rule of Appellate Procedure 2, to suspend the

operation of Rule 22(a).

                                         I

       Given that the scheduled execution is less than two days away, and that the

United States has been able to respond to the emergency petition, we grant Mr.

Moody’s motion to suspend the operation of Rule 22(a), which would have

required us to transfer the petition to the district court. Under Rule 2 we may

suspend the provisions of an appellate rule to “expedite [our] decision” or “for

good cause,” and we conclude that this standard is met here. Rule 2 cannot, of

course, be used to enlarge appellate jurisdiction, see Torres v. Oakland Scavenger

Co., 487 U.S. 312, 315–17 (1988), but that is not a concern because § 2241(a)

gives circuit judges the authority to grant writs of habeas corpus (“Writs of habeas

corpus may be granted by . . . any circuit judge within [his or her] respective

jurisdiction.”).




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      The United States argues that Rule 22(a) was rewritten as a part of AEDPA

so as to take away from circuit courts the latitude to entertain habeas petitions in

the first instance, and reasons that habeas petitions filed in the circuit courts must

be transferred to the district courts. The argument has some force, but the problem

with it is that a number of appellate rules have mandatory language (“must” or

“shall”), and Rule 2’s text—which was not substantively modified in light of

AEDPA—does not have an exception precluding the suspension of such rules.

                                          II

      On the merits, we deny Mr. Moody’s emergency petition. We assume the

parties’ familiarity with the case and given the press of time discuss only what is

necessary to set out the bases for our decision.

                                          A

      When a § 2241 habeas corpus petition is filed, the second paragraph of

§ 2243 provides that the “writ or order to show cause shall be directed to the

person having custody of the person detained.” The Supreme Court has explained

that “there is generally only one proper respondent to a given prisoner’s [§ 2241]

habeas petition,” and this is the person “with the ability to produce the prisoner’s

body before the habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004).

The “default rule is that the proper respondent [in a § 2241 petition challenging

physical custody] is the warden of the facility where the prisoner is held, not the


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Attorney General or some other remote supervisory official.” Id. at 435 (holding

that the warden of the naval brig where the prisoner was detained, and not the

Secretary of Defense, was the proper respondent in the prisoner’s § 2241 action).

      The circumstances here, however, are very unusual because Mr. Moody,

though physically in state custody, is still a federal prisoner with sentences of life

imprisonment to serve. In a sense, Mr. Moody is challenging his immediate

physical custody because he is requesting that the Attorney General be ordered to

take custody of him, or rescind any consent to have Alabama proceed, before his

scheduled execution. But he is basing his request for relief on the conduct of the

Attorney General, who does retain a measure of custody over him (by, for

example, being able to decide whether to waive primary jurisdiction).

      The default rule set forth in Rumsfeld is not absolute, see generally Brian

Means, Postconviction Remedies § 12.4 (June 2017 update), and Mr. Moody

remains under federal sentences of life imprisonment.         Because the Attorney

General, through the Bureau of Prisons, is his legal custodian insofar as those

sentences are concerned, see 18 U.S.C. §§ 4001(b)(1), 3621(a), we conclude that

he is a proper respondent under Braden v. 30th Judicial Circuit Court of Kentucky,

410 U.S. 484, 499 (1973) (allowing prisoner detained in Alabama to seek § 2241

habeas relief in Kentucky to assert speedy trial claim against pending Kentucky

indictment: “Here, for example, the petitioner is confined in Alabama, but his


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dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under

these circumstances, it would serve no useful purpose to . . . require that the

[habeas] action be brought in Alabama.”).

                                         B

      Mr. Moody suggests that the Attorney General may have a conflict of

interest due to his involvement in the state prosecution during his service as the

Attorney General of Alabama. As an initial matter, there is a decent argument that

the United States decided 20 years ago, when it filed its detainer, that Alabama

could keep custody of Mr. Moody. See Causey v. Civiletti, 621 F.2d 691, 693 (5th

Cir. 1980). If that is so, then the decision by the current Attorney General to waive

primary jurisdiction of Mr. Moody may be of little significance. Even if that is not

the case, it is not clear to us that the applicable regulations require that the

Attorney General be disqualified due to a “personal or political relationship.” See

28 C.F.R. § 45.2(a)–(c); In re Grand Jury Subpoena, 873 F.2d 170, 174–76 (7th

Cir. 1989).

      Mr. Moody’s current challenge attempts to circumvent, by couching the

problem as one of lack of standards, numerous cases which hold that a prisoner in

his position does not have a cognizable right to challenge the order in which he

serves sentences imposed by different sovereigns. See, e.g., Ponzi v. Fessenden,

258 U.S. 254, 260 (1922); McDonald v. United States, 403 F.2d 37, 38 (5th Cir.


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1968).      But some discretionary decisions by the Attorney General are

presumptively not subject to judicial review.           See, e.g., United States v. Ng, 699

F.2d 63, 71 (2d Cir. 1983) (application of “Petite Policy” for dual or successive

federal prosecution); Walker v. Reno, 925 F.Supp. 124, 133–35 (N.D.N.Y. 1995)

(decision to seek the death penalty).

       Ponzi acknowledged the discretion of the Attorney General to waive primary

jurisdiction of a federal prisoner even in the absence of statutory authority, 258

U.S. at 263, so it seems to us that where, as here, there is a valid sentence imposed

by a different sovereign, the exercise of executive discretion by the Attorney

General in ceding primary jurisdiction should not be disturbed absent allegations of

unconstitutional motive, as in the selective prosecution and substantial assistance

contexts.    See Wayte v. United States, 470 U.S. 598, 608 (1985) (selective

prosecution); Wade v. United States, 504 U.S. 181, 185–86 (1992) (substantial

assistance). Accord Heckler v. Chaney, 470 U.S. 821, 847 (1985) (Marshall, J.,

concurring in the judgment) (“If a plaintiff makes a sufficient threshold showing

that a prosecutor’s discretion has been exercised for impermissible reasons, judicial

review is available.”).    Mr. Moody does not claim that the Attorney General, in

consenting to letting Alabama proceed, acted with any unconstitutional motive

(i.e., on the basis of race, gender, religion, etc.).

                                            III


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      For the foregoing reasons, we deny Mr. Moody’s emergency § 2241

petition.

      EMERGENCY PETITION DENIED.




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