jurisdictional question we maintain that because this position is well taken that there is article three subject matter jurisdiction here for mr modi's twenty two forty one we would point that there is an injury that he's identified which would be his imminent execution it's fairly traceable to the conduct about which he complains and it is likely to be redressed by court action unless this court has any questions regarding that particular issue i'll move on to the merits with regard to that i think it would be best to address the second claim first and the second claim is or claim to as it's identified in the briefing is that mr moody is currently a federal inmate serving his sentence in a designated state facility and that sentence has not expired given that it is seven life sentences and four hundred years and that until it expires the state of alabama is judgment cannot become effective that first requires determining whether or not mr moody is a federal prisoner we would assert that he has and the reason we w has is in their answer in her answer warden stewart has admitted that mr moody is in the legal custody of the united states of america it has been the law since nineteen twenty two when the supreme court returned its opinion in ponzi versus fastened that if there's an indisputable whether an individual should be in the custody of either the state of the federal government but that's a dispute between the two sovereign transfer of a federal prisoner to a state for purposes of prosecution and sentencing but there's a statute i mean if you look at subsection b of section thirty six twenty one it gives  sent to marion he arrived at marion in all of the cases that talk about the order in which the execution of sentence may have been i'll come back to ponder but i want to get to the point of regarding that he is in fact a federal inmate thirty five eighty five a provides a sentence to a term of imprisonment commences on the date the defendants received in custody for purposes of serving that federal sentence the question here becomes whether or not when a duly imposed sentence imposed by a federal judicial officer a judge which was immediately executed and commenced service of can be interrupted by someone in the federal executive branch and here we would submit that mr moody was is and was and is in the custody of the united states government and no aspect of that change the fact that there statutory authority for him to be serving his sentence in a state facility doesn't change the fact that he's serving that federal sentence the rights of one sovereignty over another be waived they cannot and we would submit your honor and when you look at grand jury to present fingerprint exemplars and handwriting exemplars he refused a federal district court judge held him in contempt and said well you're being held in civil contempt to cure your contempt and we are going to surrender you to the attorney general of the united states until you agree to comply and we will recommend that you serve that sentence in state custody right now maybe are a good case differently but i thought what the court said in that case was that a federal district court lacks the authority to modify state imposed by a separate sorry that i read that correctly you did not your honor but what it also talks about is interruption and that's the key here is an interruption once a sentence has begun to be served and they talked about a connecticut law that's almost identical to thirty five eighty five which says once a federal sentence commences to be served it must continue absent good time work time credit and in this case so you can never you can never ever agree to have a federal sentence interrupted now withstanding w he was transported by marshals and they maintain custody of him and they watched over him at the local jail but what happened with ponzi was he was temporarily transferred for purposes only of trial and sentencing but not for execution of that sentence and they said to the extent that there will be any difficulty with regard to executing the second sentence it can go second and that is probably an acknowledgement of the fact that you cannot interrupt a federal sentence what we're talking about is can can the united states government the executive branch can they say a person was sentenced to twenty years and the district court orders that person to be remanded to the custody of the attorney general to be turned over to the bureau of prisons to serve that twenty year sentence and the united states attorney says your honor we don't want to take him we don't want to take him do they get to do that he has commenced serving that sentence once the judge has ordered him into the custody that's not john but that's not this case this is not a case where the federal government says we don't want to take and it's where another sovereign spending criminal charges and the government sends him over to you don't disagree that they could send him over to be tried right correct process that and there's no dispute there your honor ok and why can't the federal government decide that he is going to serve the state sentence first and then go and finish well your honor the sentence yes your honor and the reason for that is that he has to be ok so i'd like to know that with regard to the sentence he is serving the sentence when you transfer someone on a writ out prosecute him they do not you cannot transfer the legal jurisdiction and here we don't actually have an agreement that says that they've agreed to allow the state the second sentence to be served have the department of justice coming or when they get up your think they're going to say it's fine with us and they are saying that your honor but the problem with what they're saying is they're being very careful with their words and i would expect nothing less from the department of justice but they have explicitly refused to say in their briefing that they are surrendering primary jurisdiction in fact if you look at footnote five in their brief they say we could come and get him any time we want no i'm paraphrasing there they say we choose not to come and pick him up at the primary the person with primary jurisdiction can reclaim it at any time that is not a session of primary jurisdiction had there been some sort of writing here saying because right now all we have for an agreement is we have a writ out prosequi and i'm authorized by ponzi that says mr moody please give him to us we promise us it doesn't say anything about we are consenting to permit his sentence to run consecutively if you doesn't but it also doesn't say the minute you're finished with him and sentence him send them back to us no they do have an agreement that says that and then if you look at the w agreement that says that it's the red cross so we're going to send him back as soon as we are done but the isn't your problem that and i and i think i agree with you that mr moody has standing but is it your problem that every federal court to have faced this issue says that a prisoner in mr moody scenario does not have a cognize civil right to demand which sentence he is going to serve first and the lower federal courts have done that in the death penalty context too not just with terms of years we have a case remember vs singletary from one nine hundred ninety six involving a florida death row inmate seeking his versus stewart an arizona death row inmate seeking a return to federal custody to serve the remainder of his federal sentence piston berger versus graham lee from the second seventh circuit all of those cases say that there is write that a prisoner can enforce how do you get around that there's a huge body of case law on that point and it all i think unfortunately for you goes against mr moody's position well we would note that and i'm i don't have those cases in front of me right now but i would note that with regard to this situation i don't know to what extent they were asserting a residual life interest under the eighth amendment and if you look at ohio parole board versus watered you will see that every justice on the united states supreme court including chief justice then justice rehnquist agreed that a person who has been convicted of and fully adjudicated all issues with regard to the legality of the underlying sentence maintains that residual life interest for purposes which means which means he has standing i think and i think i agree with you and with the department of justice said he has a sufficient stake in the just note that at this i don't know that those courts had before them the argument that i'm making today regarding thirty five eighty five were guarding whether or not it once a sentence commences whether or not the executive branch of the united states may interrupt a sentence imposed by the judicial branch of the united states to permit essentially concurrent or some sort of concurrent type sentence where they say we're fine to let him go for now and we'll have him back when you're all when you all are done with his sentence and whether or not that permits this now if it turns out that mr moti is indeed right now a federal inmate which i believe that he is and i think the united states has essentially conceded as much by saying we could come and get him whenever we want what is the purpose of saying they say their primary jurisdiction and that they can reclaim him whenever they want and they choosing not to now if you look at polling do stuart bowen be stewart was a claim raised in a twenty two fifty four in which an inmate said i want you to ordered the attorney general to come and get me and they said well we question whether you'd have standing but we don't have the authority to order which are which is what i asked for either or that are trying to do is you know order that stewart may not execute mr moody because he is still serving his federal sentence in a state in a designated state disability or how is that any how is that any different than ordering the attorney general to come get him well we're not ordering the attorney general to do anything other than what the attorney general's already agreed to which is we will get him back we're giving mr moody and mr moody was transferred without any process pursuant to a writ out process going to because it was a temporary transfer by its very nature in terms it was outside the interstate agreement on detainers and it was so he had no process here and we're saying that there is no process they've issued this writ prosecution which he he's not harmed by the writ if he's transported and convicted and sentenced and then they honor the written he sent back right now we're asking frankly where is the agreement from the federal government and actual agreement the attorney general according to ponzi is the one who has the authority to to engage in these types of comedy situations and in terms of the attorney general now they say we're going to yes and this and who is saying we don't have anybody we don't have mr rosenstein or some lower level person who has been delegated that authority so you're saying that there's sort of a gap with regard to the government's consent so are you yourself are all that we have right now is something from the united states marshal from the southern district in terms of an agreement that's other than the rich we've got this detain or that but the agreement is not in force the  give you an enforceable right well we would assert that it does your honor and i would point to ponzi and i would note that when you look at ponzi which gives the authority to engage in this type of writ behavior and it's limited because the federal government has no other authority other than what ponzi says here or any statute here and they acknowledge there is no actual statute on it but it says in such matters and this is two sixty three in such matters he meaning the attorney general represents the united states and may on its part practice the comedy which the harmonious and effective operation of both systems of courts requires now there's a comment here provided it does not prevent enforcement of the sentence of the federal courts or endanger the prisoner we're preventing enforcement of the federal sentence right now and that violates the comedy to which to the extent that the attorney general has the ability to do that this frustrates the execution or that continued service of the federal sentence and it also endangers the president but frankly it frustrates that and how about how about what do you do with the are you aware of the the fifth circuit's decision appointing piece meal service of a sentence right but they also say that in that case that the government the federal government chose not to force the defendant to serve his initially impose federal sentence first and that was the end of the matter now we're standing now we're standing a detainer the ruling was that he had no right to command his return to federal custody because the federal to violate it and i would note that service of the state continues in that same paragraph service of the state sentence first did not hinder kazi from pursuing this federal appeal they're talking about because he didn't have any harm there and the reality is a non death sentence inmate is not going to suffer any real  harm from the from some sort of an agreement and can't really necessarily raise saying at the moment residual life interest or due process life interest so in all of these cases we're talking about someone who's complaining about where they're serving their sentence they're going to serve ten years here and five years there it really honestly doesn't matter it may matter to them that they're not as close to their family as they'd like they'd prefer to serve their state sentence first or vice versa but under your under your interpretation of these two statutes that would matter well under my interpretation of these two statutes which it would have to matter where you can show usury and i don't think that you can show an injury if if the end result is going to be the same in other words in this case mr moody will be four hundred years will be cut short  prematurely if the federal government does not or if the federal government somehow were to issue an agreement that they do not want to come back that they do not want to take him back and so he is suffering an injury a person who has to serve fifteen total years whether it be seven and a half in one prison or seven and a half in another it honestly it doesn't matter there's no real harm there that can be redressed because the end result would be you'd be seeking a release of some sort here mr moody is seeking to prevent the execution of a sentence that is not yet ripe and that sentence is  that he is in federal custody right now which is a considerably different claim than the others have made they were asking to be returned to federal custody so before you said let's see if i understand your argument is that the federal sovereignty can waive that's right to exclusive custody over that than that but in this particular case they just haven't done it right i wouldn't want to go that far your honor and i don't want to split hairs but i would say that to the extent that such an agreement can be made in the context of a capital case to the extent that no process attaches it would determine it would depend on the process there and to the extent that it doesn't violate separation of powers because further your argument is really that it can't be done in a capital case if your i nterpretation of the statute is correct both thirty five eighty five and thirty six twenty one b your argument is that in a capital case it cannot be done because it will prove that the enforcement and execution of the federal sentence first i would suggest that that is correct right take it can't be done there's no agreement that you think is valid in a capital context well yeah and if you had the if you had the attorney general of the united states who that may exist there to the extent it doesn't interrupt the service of a federal sentence assuming it didn't violate the separation of powers if a if a federalist federal executive branch official work to do so i believe that a person would have a claim that they could bring for a potential civil rights violation violation of due process rights is there some minimal process due in a decision such as this where the person initially was sent over on one basis and the attorney general has just decided not to go not not to know to be heard but i think there would have to be some channeling of the discretion given the fact that it involves this but i also think that there would be a separation of powers issue for the federal government the executive branch to cut short a sentence we would note your honor so that  is a complex issue the more i look at it the more complex it gets the questions that i've heard from you have made it considerably more complex we would suggest that this court order additional briefing and enter a temporary state to permit that briefing to occur on the president was wrong but i thought you grudgingly agreed that he wasn't required to get a c o a right we also sorted that this court's precedent should yield to the supreme court in the same manner a state courts judgment must however i don't if you want to do you want to do that in all capital litigation you want to just disregard prior panel precedent whenever we think a supreme court case might be in some tension with it when it's directly in conflict with the same supreme court case actually advocates that it was an intervening case this panel would say in intervening supreme court cases abrogated it to the point where we're no longer bound by precedent the fact that it curbed beforehand when neither party had incentive to seek rehearing because the stay was denied and mr hubbard was executed again slack in this case controls but as i stated earlier that's a side issue that we've raised in writing today the respondent would like to defend the district court's order including his determination that mr moody lacked article three standing because we are the only party here who has a voice that is going to take that position first the united states does appear prepared to address the potential standing issue and that's a quibble with the district court that the warden does not share however the warden agrees with the united states that even at this court move past constitutional standing and reach the producer standing issue mr moody would still not be entitled to relief for the reasons that would be discussed by the department of justice you don't think he has article three standing correct agree ok he has shown causation in other words he has shown that the reason he is going to suffer that injury is because alabama is about to execute him and the federal government hasn't taken him back agreed agreed but that's why your honor is incorrect about article three standing if i may explain why i agreed so far yes wrong ok so he's shown causation no your honor ok why hasn't he shown causation because if you look at luzon still company in page seventy two of the us reporter for our company the supreme court denies the calls a connection or describes as a fairly traceable calls all connection and it defines and limits that terms as one that cannot be the result of the independent action of some third party not before the court the department of justice is presence here today and its brief is the best evidence of why the district court got it right to the extent that the court invited the united states to appear because it wanted to hear the united states say whether it consented to mr moody's remaining in alabama custody in one thousand nine hundred eight it did so because the united states is an independent third party who was not before the district court and whose actions are undoubtedly after mr han's argument at houghton government and the government had not put its position in writing at the time the district court dismissed how could the district courts dismissal order had been correct on the record it had before it but mr moody chose to follow haiti as petition against the warden of the department of corrections who has who currently has custody of him after communicating with the commissioner of the alabama department corrections he has never inquired with the bureau of prisons he never inquired as federal status confuse ultimate success on the merits with the standing issue they have your honor but the warden of holeman prison has no say in what the united states does or does not has a say in executing him but the injury it may be part of the thing before you answer that question he is saying that what he wants is to fulfill his federal senate that that is the harm to him that if this happens he doesn't get to fulfill his federal cause because he's executed yes but only because the united states chose let him remain in alabama's custody in one thousand nine hundred eighty that goes to the merits and i and i think you've got a strong argument on the merits but that's not standing you can't conflate the merits with standing in the supreme court has said that in bond with regard to standing and it said it in chafing with regard to mootness whether or not someone is going to win doesn't affect whether or not they've shown  concrete interest so as to have article three standing out as the court to look at this case through the lens of lucia on where the person who was sued was the secretary of the department of the interior and not the funding agencies who are supposedly subject to his policies and regulations and the courts that those agencies would not be bound by an incident a legal obligation that ruling that was to the case and for that was going to put what's going to prevent him from serving his federal because if alabama does not execute him there is a chance that at some point in the future he may serve his federal sentence but invalid and his life there will be no chance for him to do that but the district court cannot effect she weight that to a twenty to forty one or to not just before and that right that goes to the merits again the secretary of the even after the u s department of state in a the showed up in the john and footnote for the court noted that did not retroactively create jurisdiction because you could not give the redress asked for through the secretary of the interior you cannot give the redress asked for through the warden because she does not have the power to take him back or that's only back that's only if you think that effective relief doesn't include telling the warden that she can't execute mr moody that's ludicrous well it is still company the court said the relief requested the declaratory judgment was not worthless not only to the plaintiff but it was worthless to the world and judging the merits the court said if we strike down the franchise tax credit in the manner that you've asked us to do we still cannot order a state lawmaker or state legislature to allocate excess tax revenues to your benefit and since we can't order a state legislature to allocate those tax revenues in that manner we can never provide you redress again the warden is not the person whose conduct is an issue where the united states surrendered custody of mr moody in  that was the cause of him remaining with the elio department corrections undoubtedly if they had showed up and said we're going to enforce the primary you could have also returned him right i would have your honor once and i thought i thought i thought the wri agreement from the government back then we did where's the agreement i don't know if there's an agreement in writing but that is why the painter was also somebody called somebody and told somebody something as you and the jew allege that below that there's been an agreement since consent to his remaining in our custody my question is not about the detain of the tane or is in the record was there an agreement between the state of alabama and the united states of america that alabama could keep mr moody and execute  whenever legally feasible to do so it is my understanding that it did and that is why the detainer was filed your honor ok but there's no record evidence of that agreement aside from the detain or not that i'm aware of ok now something or the united states government can do something that is admission that the united states is the party whose conduct is truly at issue because if they had not waved him then we would not be here today prior to his execution so again the war was following a lawful order of the circuit court of jefferson county and she's currently prepared to follow a lawful order of the alabama supreme court but unless the united states appears and seeks his return and is willing to accept his return or if that happens following his criminal trial there can be no relief to mr moody and thus there can be no article three standing the other issue is redress ability without conflating the merits of the case with redress ability the outcome is still dictated that this court cannot order the united states or the state of alabama to exercise its discretion under the rule of comity in a particular manner that it could never provide redress so i mean is your your position that mr moody has no interest in his life even in this and you talk about alignment of interest mr moody's interests are not aligned with the united states government's in fact their da metrically opposed mr moody is concerned about his life he's not however concerned about how the rule of comity is carried out between two saudis who both possess valid criminal judgments against him so in that sense he certainly would lack third party standing if you got to a principle analysis but the question becomes can a district court order the united states who is not a party party third party standing is when you're asserting the rights of a third party against a common defendant now when you're trying to suit two different defendants and i'm missing something he's not trying to suit two different you know it's a third party standing is a doctrine whereby party a in order to have a stronger claim a search the rights and interest of party b who is not before the court and suing party see well that's not that's not the paradigm here is it well it's similar to ours where he's saying that he's going to represent the united states the party who if anyone is going to ask for him to be returned and say that we would like to be of him back it's going to be the united states so he is taking a position against the warden he is saying that the warden should return him to the united states to which the warden says the united states this fall to detain or in that thing he's saying that the warden can't execute him well that's what he would like you don't have to get you don't have to get redress redress that is complete right there's a case there's a case called chief in the hague convention context federal courts order the return of the child overseas child goes overseas the eleventh circuit holder the appeal is moot by the by the other parent is moot because the child is overseas and can't be returned the supreme court reverses and says even if the district court's order of return is ultimately not obeyed that does not affect the just disability of the case you don't have to get relief that is going to be one hundred percent effective to have a just to shovel case or controversy if that were the case then the only people who have standing are the people who are going to win their case one hundred percent right except when you were you work backwards and then you say oh this party's not going to be able to win on the merits because case law cuts against him or her he's only going to get ten percent of what he wants air go go backwards and now say he doesn't have standing because he's not going to get all the relief he wants and therefore he can show redress ability that that doesn't was not the way standing works i don't think except he does not have to be returned to the b o p or that issue has never been decided so if that really is granted it actually does not address the case or controversy which is whether he should serve the rest of his federal senates that is you're assuming that he has a right to serve the rest of his federal sentence which is not addressed i'm not a not assuming i'm not assuming that at all i've said i think you have a good position on the merits but the merits are different from the article three standing inquiry that it would never survive past the original standing on the merits in light of the question that was discussed earlier where a prisoner is subject to valid criminal judgements held between multiple sovereigns that there is no due process right  contest or movement between those sovereigns and even where prisoners held by a single sovereign there's generally no due process right to contest move between correctional facilities within that state or without and then finally a prisoner has no right to demand that a sovereign exercise its discretion and  a particular way so under the precedent both cited in the respondents brief in the district court's order and the fact that the united states here today the necessary third party who did not appear below concedes that they have never asked for him back you've conceded that mr moody has article three standing haven't you yes we agree that he does have article three standing there are three components injury in fact causation and redress ability in our view the injury in fact is his imminent execution causation means that there's a causation between the complaint of conduct and the injury in fact and here the complaint of conduct is that he's done been return prosecution before alabama initiate any prosecution here and as a result we obtained primary jurisdiction at that time where that means is there we gain the  discretion to keep custody of mr moody through the exhaustion of our remedies which means through the serving his full sentence federal sentence or united states could elect to turn him over turn him over to alabama for purposes of prosecution and or serving his sentence it sure looks like though you know so it's expected to get him back i mean the order from the alabama once he was convicted and sentenced in alabama to turn him over to the cause the bell them to to serve the sentence and we have done that and i can say that the united states the attorney general  consented has agreed to mr moody's custody in alabama to serve out his alabama sentence prior to his federal sentence here in mr health so there's nothing and no written agreement sentence but do we have anything in the record that reflects that the department of justice remembering primary jurisdiction in custody over the body of lest of the united states today representing the agreement the consent of the attorney general in terms of what's previously in the record you mr moody to alabama for purposes of serving his sentence in our view that doesn't necessarily relinquish primary jurisdiction or relinquishes jurisdiction for the purposes of the scope of what we consent to turn him over to alabama but we still maintain primary we can ask for him back if we want to as a as a as a result we do consent though to his and the attorney general consensus agrees to his custody in alabama for alabama to carry out its sentence and in our view you can take judicial notice jurisdiction the sovereign who first obtains custody has primary jurisdiction and for purposes of comedy that sovereign has the ability to keep hold of the that defendant through service of the whole sentence or turn  over for either temporarily for just for prosecution or for service of the full full state sentence now whether you turned that just a consent or a waiver of full to represent the position of the attorney general and what if we hadn't asked you here well i think that you would have the same situation causing what this court concluded that a detainer that the federal government lodged with the state was sufficient to reflect in the circumstances of that case that the united states had agreed to the state taking custody for purposes of the defendant serving out his sentence in the state  those are the facts in and causey and the court could have had we not been here today is that a death case that night or this a this is a death case now and so i guess why shouldn't i look for something a little more that he consents to the custody of mr moody in alabama it's in our brief that's in writing that's been reviewed through the department and that is the position of the united states not aware of the people in case there being anything in writing either i don't think i think this is a unique situation i don't think there are there are no practices for what occurred here or what should occur in the future prisoner back if they've if they have a state or federal prosecution state and federal prosecution if we have primary jurisdiction and they're to prison and i mean if you know i mean there's a reason why you didn't ask for him back in this case because he  here speaking on behalf of the the department i mean yes is that is that still the way you do things you treat defendants over him you have primary jurisdiction differently depending on trial if that did contemplate that he would be returned to federal custody i mean do you know why was it you know your honor and as i said i've inquired as to whether there's whiles there's something reflecting  that i cannot answer that question i do i don't know the basis for the particular decision that was made at that i mean this is how this happened now but today you are release in the last five years you have primary jurisdiction or are people who are sentenced to death treated differently than people who do not get a death sentence in terms of whether you get them back or not i am not aware of any kind of practice or procedure or differential treatment i'm not aware of any case like like this other than this case personally i don't know of any other case other than the poland case it's the only case that i'm aware of in the federal system where is that all of these questions are questions of comedy to be worked out between two sovereigns in the exercise of their discretion and we don't see where that was worked out i mean that well i think other than you come in here today and and the teaching of these cases is that whether it's worked out or not is not a question that you get behind the defendant goes into and can inquire into because for example you may have a case where there's disagreement between two sovereigns if one sovereign wants him back in the other one doesn't want to give him back that still means the defend in that case has no basis has no cause of action to challenge that and to interject himself kinds of concerns has said that the defendant lacks standing now we don't think that's article three standing we think it's better much better characterized or conceptualize as either some sort of statutory standing which basically means does the does the defendant does the prisoner have a cause of action that they can assert are there any legal rights that they are that are conferred on them that they can seek to vindicate and hear over and over again this court following the supreme court in ponzi and morse in this corner of the court said over and over again said that a prisoner does not have any kind of legal claim in these circumstances to interject himself whether there's a disagreement between two sovereigns or whether there's perfect harmony and agreement between two sovereigns could you take a moment to address mr moody's argument that and oh it's partly related partly independent but the argument that the federal government is not allowed to permit a federal sentence to be split in this way under thirty five eighty five a title eighteen put it putting aside putting aside for the united states of america but we want to be sure who want to make sure that it's the government's representation that there has been a waiver of its rights to exclusive custody is solid it's on solid ground because you know next friday will be too late and so you're saying on behalf of the united states of america that the governments our rights honor i'm been informed that the attorney general consents to mr moody's i don't like my question to you may be an unfair one but the question is who is the attorney general under these circumstances as far as i'm aware of the attorney general representatives of executive branches of government to get them to admit or acknowledge something to do with an agreement and the most that we can get out of the federal government today is that this court can supposedly take judicial notice that usually matters only for the past not reasonably in dispute se rights it has over the custody of mr moody and we are at the end when when push comes to shove and i thought mr patera here and i thought that he would and i thought he was finally going to say we do seed permanently and forever primary jurisdiction over mr moti he said at this time it was it was captured it was captured right there at the end at this time he will he still will not say to this court that the federal government has ceded primary jurisdiction over mr moody to the state and we know that that doesn't matter to you because you think he can't do it anyways whatever your honor if that's what you told that's what you said in response to a question but if i am i can take alternative positions your honor not and i and given the limited record that we have here because i find it incredibly difficult to believe that i mean the one that captured mr modi and this court well aware of the facts of this case having heard his substantive pay b s case is well aware of the record in this case and the lengths that the federal government and the state government went to to prosecute mr moody thousands and thousands of of pages covering hundreds of agents and prosecute and dozens of prosecutors were involved in this case and mr moody gets picked up from federal prison one day having executed having assassinated a federal judge and the federal government sends him along and never comes and gets and not only do they never come and get him but they never say we don't want him back ever anywhere well because of that and maybe that's maybe the reason why nothing happened over a course of years is that everybody was happy with the status quo well mr mood mr moody was not dissatisfied with the status quo given what had happened right right he was perfectly content to as content as you can be but to be there w nothing was happening and while no death warrant was in place he didn't make a complaint earlier than this month you know a month ago the federal government didn't have any reason to get him back because he's serving a life sentence he would have served a life sentence and somebody else is paying for his custody and his upkeep and alabama doesn't want to let go of them because they may need a moment some point in the future to carry out their execution so everybody is perfectly content under the circumstances to let things stay as they are well and now and now we're litigating this issue twenty something years later and your honor mr moody was never given notice of the fact that the federal government had apparently waived mr moody the first notice mr moody had that he was no longer in federal custody and that writ was apparently no longer valid was what he was told the day after the supreme court of the united states denied cert on his twenty two fifty four on state court that he was going to be executed at that point he realized i'm not in federal custody i'm not subject to this rig anymore something's going on i immediately reached out to the department of corrections and said can you please tell me why mr moody isn't being returned to the federal government not blaming him for the delay i'm just saying that that might be an explanation of why nothing happened over the course of twenty years you're going to explain why there's no paperwork no nothing you would think that a federal prisoner who is who was the subject of such a manhunt who was sentenced to seven life sentences and four hundred years and committed to serve that sentence and began serving that sentence that he would just not walk out of the federal prison where the couple of occasions of the state of alabama and never return without any paperwork but you know here's this if you if you were bringing this claim and it were a case of first impression and you know these are really hard and complex issues they still are but you have a case from our circuit which involves the exact same circumstances except it doesn't involve the federal government that involves two states a guy who received a sentence a non death sentence in cancer in kansas charge and sent over to florida on a capital murder charge convicted and sentenced to death in florida and he files a writ of habeas corpus saying florida can't execute me because i need to be back in kansas serving my kansas sentence in that case this is a quote from america we do not know whether kansas is currently seeking remembers return to serve the remainder of his sentence not withstanding that lack of knowledge and ambiguity we said that remeasured did not have a cognizable right that he couldn't force to present to prevent his execution by florida i i don't see how you can get around that case is now from another circuit it's from circuit or fifth circuit that may somehow call into question cases that were issued after the supreme court cases with regard to this difficult availability i would say that ponzi is clear ponzi says it works no injury to the prisoner to do this and the way that we ensure that it works no injury to the prisoner can have their sentences altered by an executive branch of the united states so if they had wanted to shorten mr moody sentence they would have had to go into federal court and say your honor please shorten mr moti sentence mr sessions can't go in and say you could and at this point your honor i would like to before we get like again going back your position and it's a it's a hard line you're taking and i understand why that the federal government can not written agreement to express agreement or not simply cannot do what the united states is attempting to do here correct or and but with regard to assuming that it could and because i don't want to foreclose an argument that i know that's your that's your that's not your best argument right and then you have  and you have and you have an alternative argument beneath yes your honor that almost every case and i have not read recently but i would argue that most every case when they talk about the order no standing to challenge the order in which sentences are executed all of those cases involve a writ person was sent over they started with a state sentence or a federal sentence vice versa they were sent to the federal government of the state who got them on the writ prosecuted that obtained a sentence did not execute that sentence sent them back that's a difference there is a difference here because executing the sentence and when you look at thirty five eighty five and i got notice yesterday morning that we were going to be talking about the merits and i apologize to mr pelletier for coming out with thirty five thirty five here today not having a copy for him but i know if there is a dispute whether an individual should be in the custody of either the state or the federal government that dispute is whether that is between the two sovereigns an individual who is well over the last two or more sovereigns may not complain  sentence is to be served first regardless of whose custody you're and it's a matter of comedy between the two sovereigns well i don't know your honor that ponzi talks about as long as it doesn't frustrate the federal sentence and certainly here would frustrate the federal sentence mr ponzi was in case especially a case like this where a lot of life is at stake here to protect those cases other than maybe were met and there is this question of separation of powers and various various aspects i'm just i was sitting over there at a loss because i heard that there were quote no normal practices on the part of the attorney general's office for the there was he was authorized by whom he said apparently mr sessions has passed on this  and i mean i'm just i'm at a loss here to to determine how mr moody is especially when we're here at the pleading stage addressing the merits and i appreciate the court taking the merits because i think the court maybe anticipated a stay motion at some point  given that the district court would not regained jurisdiction if we were to prevail on the regain the jurisdiction didn't think it had if we prevailed on the subject matter jurisdiction issue because the mandate would have to issue but given the short timing on this and given the fact that mr moody  just now learning today that there is apparently an agreement whether enforceable or not an issue that needs to be fleshed out especially given a life i would move at this time i would make i don't you know if i can do this i would make an oral motion under twenty two forty  one for this court to issue a conditional writ of habeas corpus because mr moody's due process rights has limited due process right to life has been violated by the admitted here at mid lack of any standards whatsoever every supreme court justice in ohio for adult parole board versus what are said there is a residual life interest and some processes do and that was with regard to executive clemency here we're not talking about executive clemency we're talking about an interaction of a federal statute that implicates separation of sessions and any of his agents on this i would note that judge martin asked about any other circumstances in which this happened terry nichols it's outside the record but if you were to terry nichols was the other bomber involved in the oklahoma city  nichols was read it over he was not given a death sentence by then the federal government had reinstated the death penalty and he got an eleven to one verdict that said death but in the federal system you're entitled to unanimity or you get life without the state of oklahoma was not happy with government of the state of oklahoma returned him to the federal government this is a situation where they are essentially back dooring a federal death penalty ex post facto they could not have gotten a death penalty for mr moti they could not have gotten him the death penalty the federal government and now mr sessions who happened to have been the prosecutor on this case his office he was in charge he was there he had not been elected senator sessions the morning of his election to the united states senate his attorneys were in court having the death sentence pronounced on mr moti his attorney general office his people and here we have a saying that mr sessions is consenting to this death sentence great where's mr moody's process doesn't as mr moody shown a significant likelihood of success on the merits as to his federal custody status claim to we would submit that he has we would submit that i don't think most people could dispute that he has an injury that there is a knee injury that will be  i will be witnessing mr moody executed at six pm next thursday and given the stakes here given the late disclosure of this agreement we say that the equities lie in favor of granting a stay to mr moody so that we can panel we'd like to have you file something that we can and the record something we're assured us that the attorney general or his delegate consenting to release exclusive custody over mr moody to the state of alabama for execution close of business on monday nine o'clock tomorrow morning