    Case: 15-30506    Document: 00513091529     Page: 1   Date Filed: 06/24/2015




                        REVISED June 24, 2015

         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                 No. 15-30506                     June 12, 2015
                                                                 Lyle W. Cayce
                                                                      Clerk
ALBERT WOODFOX,
            Petitioner–Appellee,
versus
BURL CAIN, Warden, Louisiana State Penitentiary; James Caldwell,
            Respondents–Appellants.




                Appeal from the United States District Court
                    for the Middle District of Louisiana




Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge.

      In 2013, the district court a quo granted Albert Woodfox’s petition for
writ of habeas corpus on the ground of racial discrimination in the selection of
the foreperson of the grand jury. This court affirmed and, on remand, the dis-
trict court, on June 8, 2015, entered an unconditional writ releasing Woodfox
and prohibiting retrial, and it declined to stay its order. The state moves for
an emergency stay of the release pending appeal. We granted a three-day stay
to receive briefing and to consider the matter fully. We now grant the motion
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                                      No. 15-30506
for stay of the order for the duration of the appeal on the merits.

                                             I.
       Woodfox has been before this court many times through the decades.
The district court originally granted him federal habeas relief in 2008 on the
ground of ineffective assistance of counsel, ordering the state either to retry
him within 120 days or to dismiss the indictment. See Woodfox v. Cain, No. 06-
789-JJB-RLB (M.D. La. Sept. 25, 2008), ECF No. 50. Although there is a pre-
sumption that a prisoner who has been granted habeas relief is entitled to
release from custody, 1 this court found that presumption rebutted and, under
Federal Rule of Appellate Procedure 23(d), granted an emergency stay of
release pending appeal. See Woodfox v. Cain, 305 F. App’x 179, 181–82 (5th
Cir. 2008) (per curiam).

       On review of the merits, this court vacated the judgment based on the
standard of review mandated by the Antiterrorism and Effective Death
Penalty Act of 1996 and “remand[ed] for resolution of the only remaining issue
relating to the [allegedly racially discriminatory] selection of the grand jury
foreperson.” Woodfox v. Cain, 609 F.3d 774, 817–18 (5th Cir. 2010). The dis-
trict court granted habeas relief on that ground; this court affirmed and
“remand[ed] for further proceedings consistent with this opinion.” See Woodfox
v. Cain, 772 F.3d 358, 383 (5th Cir. 2014), petition for cert. filed (Apr. 27, 2015)
(No. 14-1288).      After remand, the district court again ordered Woodfox
released. 2



       1  See Hilton v. Braunskill, 481 U.S. 770, 772 (1987) (deciding “what factors [Federal
Rules of Appellate Procedure 23(c) and 23(d)] allow a court to consider in determining
whether to release a state prisoner pending appeal of a district court order granting habeas
relief”).
       2 See Woodfox v. Cain, No. 06-789-JJB-RLB, 2015 WL 3549787, at *16 (M.D. La.
June 8, 2015).
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       Under Rule 23(d), “[a]n initial order governing the prisoner’s custody or
release . . . continues in effect pending review unless for special reasons shown
to the court of appeals or the Supreme Court, or to a judge or justice of either
court, the order is modified or an independent order regarding custody, release,
or surety is issued.” 3 The initial order releasing Woodfox was stayed in 2008
“pending the State’s appeal of the grant of habeas relief.”                     See Woodfox,
305 F. App’x at 182. By petitioning for certiorari, the state continues to seek
review of the grant of habeas relief, albeit a grant on a ground different from
that used in 2008.

       Rule 23(d) plainly limits the entities that can modify an initial order or
issue an independent order regarding custody to “the court of appeals or the
Supreme Court, or to a judge or justice of either court.” Although the district
court purported to act pursuant to Rule 23(c), 4 it may have impermissibly
modified its initial order from 2008 or entered an independent one. 5 Because



       3See also Supreme Court Rule 36, previously numbered Rule 49, which was the model
for FRAP 23. FED. R. APP. P. 23 cmt. d. Rule 36 states that “[a]n initial order respecting the
custody or enlargement of the prisoner . . . shall continue in effect pending review in the court
of appeals and in this Court unless for reasons shown to the court of appeals, this Court, or
a judge or Justice of either court, the order is modified or an independent order respecting
custody, enlargement, or surety is entered.”
       4   See Woodfox, 2015 WL 3549787, at *1, *11, *15, *16 n.8.
       5  See Elvik v. Bunce, No. 3:04-CV-00471-GMN, 2014 WL 2803447, at *2 (D. Nev.
June 19, 2014) (“[T]he Court is presented with a habeas petitioner’s request to modify the
Court’s initial custody determination. This Court must defer to the Ninth Circuit regarding
the question of any change to petitioner’s custody status in accordance with FRAP 23(d).”);
Christian v. Frank, No. CV 04-00743DAE-LEK, 2010 WL 1064732, at *4 (D. Haw. Mar. 22,
2010) (“Now that Respondents seek either a modification of those initial decisions or the issu-
ance of a new ruling on Petitioner’s custody, Rule 23(d) applies. A Rule 23(d) motion may
only be considered by a court of appeals, the Supreme Court, or a judge or justice of one of
those courts.”). But see Mosley v. Cullen, No. C05-4260 TEH, 2011 WL 838896, at *2 n.1
(N.D. Cal. Mar. 4, 2011) (“[A] district court lacks jurisdiction to modify a custody order under
Rule 23(d), which refers only to appellate judges and Supreme Court justices. However, the
parties in this case agree that the Ninth Circuit’s remand order provides this Court with
jurisdiction to rule on the Warden’s motion.”).
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the parties have not briefed whether Rule 23(d) prohibits the district court’s
order, we assume―but only for the limited purpose of deciding this emergency
motion―that the district court had a vehicle not only to order release but also
to bar reprosecution.
       The State posits that it has already released Woodfox from custody on
the 1998 indictment and contends that it is now detaining him under a new
arrest warrant and indictment that it secured in February 2015, before the
district court ordered Woodfox’s immediate release on June 8, 2015. Thus,
according to the State, Woodfox is now in pre-trial custody and can challenge
his ongoing pre-trial detention in the state court. See, e.g., La. Code Crim.
Proc. Ann. art. 701(D)(1)(a). Because this chronology of release and indepen-
dent re-indictment preceded the release order now under review, we focus our
analysis on whether the district court abused its discretion when it barred
reprosecution.

                                               II.
       “We consider four factors in deciding whether to grant a stay pending
appeal: ‘(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public interest
lies.’” 6 To succeed on the merits, the state must show that the district court
abused its discretion by ordering Woodfox’s unconditional release and prohib-
iting retrial. 7


       6Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406,
410 (5th Cir. 2013) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)) (internal quotation
marks omitted).
       7See Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (holding that “the portion of the
order requiring the dismissal of the indictment” if the State “fails to retry [petitioner] within
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       In Braunskill, the Court “recognized that the applicant need not always
show a likelihood of success on the merits. The prisoner should remain in cus-
tody if the State can ‘demonstrate a substantial case on the merits’ and the
other factors militate against release.” 8            Moreover, courts may consider
whether “there is a risk that the prisoner will pose a danger to the public if
released” and “[t]he State’s interest in continuing custody and rehabilitation
pending a final determination of the case on appeal,” which “will be strongest
where the remaining portion of the sentence to be served is long, and weakest
where there is little of the sentence remaining to be served.” Braunskill, 481
U.S. at 777.

                                             III.
       The most important factor is whether the state has made a strong show-
ing of likelihood of success on the merits. Woodfox, 305 F. App’x at 181.
Although a district court “has broad discretion in conditioning a judgment,” 9
the “relief must . . . be fitted between two principles underlying habeas corpus
jurisprudence.” Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998). First,
“[t]he court shall . . . dispose of the matter as law and justice require.”
28 U.S.C. § 2243. Second, “[b]oth the historic nature of the writ and principles
of federalism preclude a federal court’s direct interference with a state court’s
conduct of state litigation.” 10 In accordance with those principles, “[o]ther than
granting the writ of habeas corpus and imposing time limits in which the state



120 days . . . constitutes an abuse of discretion”).
      8 Woodfox, 305 F. App’x at 181 (quoting Braunskill, 481 U.S. at 778).

       9 See Braunskill, 481 U.S. at 775 (“[A] court has broad discretion in conditioning a
judgment granting habeas relief.”).
       10 Henderson, 155 F.3d at 168 (quoting Barry v. Brower, 864 F.2d 294, 300 (3d Cir.

1988) (internal quotation marks omitted)); see id. (“Within the strictures of these principles,
federal courts have most often granted the relief in habeas cases that has required the least
intervention into the state criminal process.”).
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must either release the petitioner or correct the problem, the precise remedy
is generally left to the state.” 11

       “In rare circumstances,” however, “a habeas court can end a state crim-
inal proceeding as part of the habeas remedy.” Jones, 600 F.3d at 542. “[P]re-
venting the retrial of a state criminal case is the strongest of medicine. And it
is a measure that should be utilized with the utmost restraint, only in the most
extraordinary of circumstances.” 12 An unconditional writ barring retrial is
“generally limited to situations where the nature of the error is simply
incurable, such as a conviction under an unconstitutional statute.” 13 Although
the district court correctly noted that Woodfox’s unconstitutional “indictment
could . . . be corrected by . . . re-arrest and reindictment,” 14 it nevertheless
found that “exceptional circumstances” warrant an unconditional release with
prejudice to rearrest and retrial. 15 But “[i]mmediate release from custody with



       11BRIAN R. MEANS, FEDERAL HABEAS MANUAL: A GUIDE TO FEDERAL HABEAS CORPUS
LITIGATION § 13:4 at 1371 (2014) (citing Bastida v. Braniff, 444 F.2d 396, 398 (5th Cir. 1971)
(“It goes without saying that a federal court should not become involved in the judicial
administration of the state court system if any reasonable alternative exists by which ade-
quate relief can be afforded.”)); see id. (“The object is not to make whole someone who has
suffered a loss; it is to determine whether a person is being confined in violation of basic
norms of legality.” (quoting Allen v. Duckworth, 6 F.3d 458, 460 (7th Cir. 1993) (internal
quotation marks omitted)).
       12  Wolfe v. Clarke, 718 F.3d 277, 288 (4th Cir. 2013), cert. denied, 134 S. Ct. 1281 (2014)
(citing Gilliam v. Foster, 75 F.3d 881, 905 (4th Cir. 1996) (en banc) (“Equitable federal court
interference with ongoing state criminal proceedings should be undertaken in only the most
limited, narrow, and circumscribed situations.”)).
        13 Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006); see Jones, 600 F.3d at 542 (“If

the constitutional problem that led to the grant of the writ cannot be cured by a new trial—
for example, if a double jeopardy violation merits habeas relief—then the habeas court can
permanently end the state criminal proceeding.”).
       14   Woodfox, 2015 WL 3549787, at *3.
       15 Id. at *15; see id. at *4 (quoting Jones, 600 F.3d at 542 (“For a federal court to
exercise its habeas corpus power to stop a state criminal proceeding ‘special circumstances’
must exist . . . . [T]he constitutional violation must be such that it cannot be remedied by
another trial, or other exceptional circumstances [must] exist such that the holding of a new
trial would be unjust.” (alterations in original) (quoting Capps v. Sullivan, 13 F.3d 350, 352–
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                                         No. 15-30506
prejudice is rarely awarded, and when it is, the appellate courts may find abuse
of discretion.” 16

       Although, as the district court observed, the parties did not “present any
Fifth Circuit jurisprudence to show what circumstances are sufficient required
[sic] to justify the issuance of an unconditional writ barring retrial,” Woodfox,
2015 WL 3549787, at *4, the order was based on
    Mr. Woodfox’s age and poor health, his limited ability to present a
    defense at a third trial in light of the unavailability of witnesses, this
    Court’s lack of confidence in the State to provide a fair third trial, the
    prejudice done onto Mr. Woodfox by spending over forty-years in soli-
    tary confinement, and finally the very fact that Mr. Woodfox has
    already been tried twice and would otherwise face his third trial for a
    crime that occurred over forty years ago.
Id. at *15. The court gave “little weight” to “[t]he fact that Mr. Woodfox has
not served the maximum possible sentence [of life imprisonment] and the fact
that the underlying constitutional violation could be corrected upon retrial”; it
opined that the “evidence of guilt is [not] ‘overwhelming.’” Id.

       The Supreme Court has acknowledged the costs of vacating a conviction
because of “discrimination on the basis of race in the selection of members of a
grand jury” 17 even though there was no constitutional defect in the trial itself:
       We do not deny that there are costs associated with this approach.
    But the remedy here is in many ways less drastic than in situations
    where other constitutional rights have been violated. In the case of a
    Fourth or Fifth Amendment violation, the violation often results in the
    suppression of evidence that is highly probative on the issue of guilt.
    Here, however, reversal does not render a defendant immune from
    prosecution, nor is a subsequent reindictment and reprosecution barred
    altogether . . . . “A prisoner whose conviction is reversed by this Court

53 (10th Cir. 1993)) (internal quotation marks omitted)).
       16 Carter v. Rafferty, 621 F. Supp. 533, 559 (D.N.J. 1985), aff’d, 826 F.2d 1299 (3d Cir.

1987) (citing LARRY W. YACKLE, POSTCONVICTION REMEDIES, § 141 at 530–31 (1981) (citing
Hammontree v. Phelps, 605 F.2d 1371, 1380–81 (5th Cir. 1979))).
       17   Rose v. Mitchell, 443 U.S. 545, 556 (1979).
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    need not go free if he is in fact guilty, for [the State] may indict and try
    him again by the procedure which conforms to constitutional
    requirements.”[ 18]
As in Mitchell, the underlying constitutional violation warranting habeas relief
—racial discrimination in the selection of the grand jury foreperson—is not
“highly probative on the issue of guilt.” 19

       Without any mention of Mitchell, the district court relied heavily on a
forty-year-old decision from another circuit―Schuster v. Vincent, 524 F.2d 153
(2d Cir. 1975)―as evidence that “at least one court [has] permanently dis-
charged a defendant from custody despite the clear guilt of the defendant
because of the seriousness of the confinement he was placed under and other
exceptional circumstances.” Woodfox, 2015 WL 3549787, at *12. But the
unique and extreme facts of Schuster are completely inapposite to the case at
hand. There, a prisoner would have been eligible for parole almost thirty years
earlier had there not been “apparent retaliation for his efforts to expose prison
corruption” 20 and a sanity hearing, ordered to be held within sixty days as part
of federal habeas relief, was delayed for three years—“[a] flagrant violation of
the spirit of [the] mandate”—which “require[d] [the court] to consider Schuster
as constructively paroled” and to order his absolute discharge. 21




       18Id. at 557–58 (second alteration in original) (emphases added) (quoting Hill v. Texas,
316 U.S. 400, 406 (1942)) (internal quotation marks omitted).
       19   Id. at 557.
       20   Schuster, 524 F.2d at 154.
       21 Id. at 161 (footnote omitted). Woodfox’s reliance on Capps is also unavailing. There,
a district court granted a writ of habeas corpus barring retrial because the state had failed
to release the petitioner or retry him within ninety days of the original writ. Capps, 13 F.3d
at 351–52. The circuit court found that was an abuse of discretion “because nothing in the
record suggests the constitutional violation was not redressable in a new trial.” Id. at 353.
And unlike the circumstance in D’Ambrosio v. Bagley, 656 F.3d 379, 380 (6th Cir. 2011), the
state has not “failed to comply with an earlier order issuing a conditional writ of habeas
corpus.”
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       Woodfox has twice been convicted of the murder of Brent Miller, a prison
guard at the penitentiary where Woodfox was serving a fifty-year sentence for
armed robbery. The state has a strong interest in continuing custody of Wood-
fox and reprosecuting him for that murder—a crime for which he was serving
a life sentence without the possibility of parole. 22 The constitutional claim for
which he was awarded habeas relief is readily capable of being remedied by a
new indictment and trial. See Mitchell, 443 U.S. at 556; Wolfe, 718 F.3d at 290.

       To the extent that the district court’s order was based on concern for the
lack of available evidence at retrial or doubts about the state’s ability to provide
a fair retrial, “the task of conducting [a] retrial is for the state trial court, and
it is not for us to express a view on how that court should manage its affairs.” 23
No showing has been made that any state retrial (or any appeal) will be
improperly handled.

       In summary, the state has succeeded on the first prong of its burden for
a motion for stay pending appeal. It has made a strong showing that it is likely
to succeed on the merits. 24



       22 See Braunskill, 481 U.S. at 777 (“The State’s interest in continuing custody and
rehabilitation pending a final determination of the case on appeal . . . [is] strongest where
the remaining portion of the sentence to be served is long . . . .”).
       23Wolfe, 718 F.3d at 289; see also Pitchess v. Davis, 421 U.S. 482, 490 (1975) (“Neither
Rule 60(b), 28 U.S.C. § 2254, nor the two read together, permit a federal habeas court to
maintain a continuing supervision over a retrial conducted pursuant to a conditional writ
granted by the habeas court.”).
       24 See Wolfe, 718 F.3d at 290 (“At the end of the day, any scenario presenting circum-
stances sufficiently extraordinary to warrant federal interference with a State’s reprosecu-
tion of a successful § 2254 petitioner will be extremely rare, and will ordinarily be limited to
situations where a recognized constitutional error cannot be remedied by a new trial.”); Jones,
600 F.3d at 542 (“Here, a retrial would not violate [petitioner’s] constitutional rights. Addi-
tionally, there are no other ‘special circumstances’ that justify an order ending all state mur-
der proceedings . . . .”). The weakness of Woodfox’s case on the merits is revealed in his
struggle to find favorable Fifth Circuit authority. In that regard, he relies almost exclusively
on Jones. But there we ruled that the district court had abused its discretion in ordering
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                                              IV.
       Although we “acknowledge[] that the interest of a successful habeas peti-
tioner in being released pending appeal is ‘always substantial,’” 25 the remain-
ing factors favor the state. As for the state’s irreparable injury and the public
interest, there is a substantial interest in staying the release of a person, twice
convicted of murder, from being released from a life sentence without the possi-
bility of parole. In 2008, we recognized that Warden Cain “unequivocally
stated . . . that he believed, based upon Woodfox’s entire history and the par-
ticular circumstances surrounding the case, that Woodfox is still too dangerous
to be allowed into the general population at the prison or into the public at
large.” Woodfox, 305 F. App’x at 181–82. Cain still maintains that Woodfox is
“both dangerous and a flight risk.” 26

       The motion for a stay pending appeal is GRANTED. 27 The appeal is sua
sponte EXPEDITED to a regular oral-argument merits panel to be assigned as
soon as expedited briefing is complete. The clerk is directed to issue an expe-
dited briefing schedule.




dismissal of the indictment. Jones, 600 F.3d at 541–42. The acknowledgement of the theo-
retical possibility of “special circumstances” is dictum, and we gave no examples of such
situations other than double jeopardy or a “constitutional violation . . . that . . . cannot be
remedied by another trial.” Id. at 542. If anything, Jones assists the state here more than it
helps Woodfox. To the extent that Woodfox claims that his extended solitary confinement is
an exceptional circumstance, he is really seeking an unconditional writ as punishment for
conditions of confinement, which is not a proper subject of inquiry in this habeas corpus
proceeding.
       25   Woodfox, 305 F. App’x at 181 (quoting Braunskill, 481 U.S. at 777).
       26 Emergency Motion To Stay Release Pending Appeal, at 1; see also id. at 18–27
(describing Woodfox’s criminal history and access to financial resources).
       27   This ruling supersedes the order entered by this motions panel on June 9, 2015.
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