                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JULY 8, 2008
                             No. 07-15786
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                  D. C. Docket No. 06-00006-CV-AR-NE

MELVIN RAY,



                                                   Petitioner-Appellant,

                                  versus

DONAL CAMPBELL,
Commissioner,
TROY KING,
Attorney General,


                                                   Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (July 8, 2008)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:

       Melvin Ray, an Alabama prisoner proceeding pro se, appeals the denial of

his petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Ray argues

that he is “in custody” pursuant to an indictment pending since May 12, 2000, and

the district court erred in finding that a second indictment filed after that date acted

as a superseding indictment. He contends that the continued pendency of the

original indictment violates his right to a speedy trial.1

       When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). A

prisoner may bring an action for writ of habeas corpus if the prisoner is “in

custody” in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2241(c)(3). The Supreme Court has interpreted § 2241 as requiring a

habeas petitioner to be “in custody” under the conviction or sentence he seeks to



       1
         Ray also argues that the district court erred in stating that it appeared as if he had not
exhausted his state court remedies. Because the federal courts lack jurisdiction to address Ray’s
petition because he was not “in custody,” we need not address the issue of exhaustion.
Moreover, even though the district court granted a broad certificate of appealability (“COA”),
the district court did not make any specific findings as to exhaustion, confining its decision to the
issue of “in custody,” and, thus, review under the COA was limited to that issue alone. We
therefore, lack jurisdiction to address the issue of exhaustion because it was not included in the
COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (holding that
appellate review is limited to issues specified in the COA).

                                                  2
attack at the time his petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88

S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968).

      The Supreme Court has noted that an Alabama prisoner subject to a

Kentucky detainer placed on him because of a pending indictment is “in custody”

because the Alabama warden acts as an agent of the commonwealth of Kentucky.

Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489 n.4, 93 S.Ct.

1123, 1126 n.4, 35 L.Ed.2d 443 (1973). The Supreme Court has also held that a

petitioner under a detainer placed on the petitioner by a state was “in custody” even

though he was currently incarcerated pursuant to federal charges in a federal

penitentiary and his state sentence had yet to begin. Maleng v. Cook, 490 U.S.

488, 493, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989). The Court explained that

the state’s detainer ensured that, at the conclusion of the prisoner’s federal

sentence, he would be returned to state authorities to begin serving his state

sentence. Id. A prisoner serving consecutive sentences was “in custody” under

any one of them for purposes of § 2241. Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct.

1549, 1556, 20 L.Ed.2d 426 (1968).

      Under Alabama law, an indictment must not be quashed or dismissed

without the permission of the court and such permission must be entered on the

record. Ala. Code § 15-8-130. Reindictment for the same offense does not have



                                           3
the effect of dismissing the first indictment. Ex Parte Washington, 716 So.2d 253,

255 (Ala. Crim. App. 1998). “While it is the duty of the district attorney to decide

whether a criminal act shall be prosecuted, once a warrant or indictment has been

initiated, the trial court has the final authority regarding the ultimate disposition of

the case.” State v. McNeill, 716 So.2d 250, 253 (Ala. Crim. App. 1998). Although

only a court has the authority to dismiss an indictment, the better practice is to

bring the second indictment before the first is quashed. Johnson v. State, 479

So.2d 1377, 1381 (Ala. Crim. App. 1985). In Johnson, a second indictment was

brought after a first indictment without leave of the court. Id. The court later

quashed the first indictment, but the failure to quash the first indictment had no

affect on the validity of the second indictment. Id.

      Although, under Alabama law, the first indictment remains pending, the

second indictment is still valid, providing the basis for Ray’s current sentence.

Ray’s reliance on cases in which a petitioner is “in custody” on an indictment

pursuant to a detainer is inapposite because no detainer has been placed on Ray.

Because Ray is currently “in custody” on the second indictment and not the

indictment which he seeks to attack, he has failed to demonstrate that he is “in

custody” for purposes of § 2241.

      AFFIRMED.



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