Attorney Notes Pages 1640-1641, 1645-1646

    IN Ti{E TINITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF AI-ABA]"1A

NORTHERN DIVISlON

FILED
SEP 1 1s83

THOMAS C, R,
c'i

JULIA P. iITILDER

. Petitioner
vs.

EALON M. LAI"IBERT; et al
Respondents

CIVIL ACTION NO. 83-H-5 -N

ORDER

This cause is before the. Court on respondents' motion

to dismiss the petition for habeas corpus. Petitioner, who is
now on parole, has attacked hei conviction for voter fraud on

numerous constitutional gror:nds. She clains that no rational
jury could have found her guilty based on the evidence Dresented

at trial; that the indictment failed to provide her with

adequate notice of the charges; that she was convicted of

engaging in conduct protected by the Constitution and the

Voting Rights Act; that the jury instructions created ex post

facto liability; that the use of out-of-court statements violated

her Sixth Amendment rights; and that she was selectively and

discriminatorily prosecuted. Resoondents have moved to disrniss

for failure to exhaust state remedies. Petitioner asserts that

no state corrective process is available. 28 U.S.C. S 2254(b).

This Court agrees.

The Alabama writ of error coram nobis is unavailable

to petitioner because the Alabama courts clearly perrnit use of

the writ only to raise facts that becone knoinm after trial .



The office of writ of error coram ncbis, under
Alabana 1aw, is to bring to the attention of the
court an error of fact, unknovrn to the court or
the affected party at the time of trial, which
had it been knovm, would have prevented thejudgnent challenged; indeed, the writ is in effect
a motion for new trial on the ground of newly
discovered evidence.

Vaughn v. State , 3g5 So.2d 95, 96 (Ala . 1979); see Thigoen v.

Srate, 372 So.2d 385, 386-87 (AIa. Cr. App. 1979); Sr.rmmers v.

State, 366 So.2d 336, 339 (A1a. Cr. App. 1978). None of
petitioner's clains raises the ground of newry discovered

evidence; rather, all relate to the conduct of the trial. The

writ also lies to raise a claim of ineffective assistance of

cor.:nsel , Sr:smers v. State , sup_ra , at 34L , but petitioner has

raised no such cIaim.

The state writ of habeas corDus also is r:navailable to
petitioner, because she is a parolee. I.rIiIlians v. State, 155

So.2d 322 (AIa. App.), cert. denied, 155 So.2d 323 (1963), held

that habeas is available only to a petitioner who is r:nder

"actual or physical restraint." The court characterized parole

as "Bere moral restraint." Id. at 323; accord, State v.

l-lcCurlev, 4L2 So.2d L233, L235 (AIa. Cr. App.), cert. denied,

4L2 So.2d L236 (1981), cert. denied, 456 U.S. 1006 (1983).

Petitioner need not go through the motions of attempting to

persuade the state courts to overrule Willians. Blackledge v.

Perry, 4L7 U.S. 2l , 24 (L974); see Galtieri v. Irrainwright,

582 F.2d 348, 354-55 n.l3 (5rh Cir. 1978). Thus, neirher

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Alabama writ is available to petitioner, and she satisfies the

exhaustion requirement. Accordingly, it is

ORDERED that the motion to dismiss is denied.

Respondents are ORDERED to cornply with this Court's Order

of June 28,1983, to show cause why the writ should not issue,

on or before tvrenty days from the date of this order

Respondents at that time also should file any resDonse they

may have t.o petitioner's ootion to furnish transcripts. Said

motion will be deemed submitted _to the Court t\denty days from

the date of this order, and may be decided at any time ttrereafter.

DONE this lst day of Septeuber, 1983.'6,^^ 
+ir#1"

U*T'EO STATES DISTRICT JITDGE

',ri. -r!&.,_6_

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