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 district 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 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 presumption 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 Fed.Appx. 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 district 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
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 Fed.Appx. 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 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 independent reindictment 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 prohibiting retrial.7
In Braunskill, the Court "recognized that the applicant need not always show a likelihood of success on the merits. The prisoner should remain in custody 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, 107 S.Ct. 2113.
III.
The most important factor is whether the state has made a strong showing of likelihood of success on the merits. Woodfox, 305 Fed.Appx. 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 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 criminal proceeding as part of the habeas remedy." Jones, 600 F.3d at 542. "[P]reventing 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 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, ___ F.Supp.3d at ___, 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 solitary 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 ___, 2015 WL 3549787 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 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 discharged 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, ___ F.Supp.3d at ___, 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
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 Woodfox 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, 99 S.Ct. 2993; 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
IV.
Although we "acknowledge[] that the interest of a successful habeas petitioner in being released pending appeal is `always substantial,'"25 the remaining 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 possibility of parole. In 2008, we recognized that Warden Cain "unequivocally stated ... that he believed, based upon Woodfox's entire history and the particular 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 Fed.Appx. 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 expedited briefing schedule.
