[DO NOT PUBLISH]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
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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).
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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
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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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