Gaines v. Dougherty County Board of Education Brief for Appellants

    IN THE UNITED STATES DISTRICT COURT
FOR THE !{IDDLE DISTRICT OF ALABAMA

NORTTIERN DIVISION

JULIA P. WILDER,

Peti tioner,

vs.

EALON M. LA!4BERT, €t Erl.,

CIVIL ACTION
NO. 83-H-580-N

Respondents.

RESPONSE TO RESPONDENTS' !4OTION TO DIS!{ISS

Petitioner, through her attorneys, hereby asks the Court

to deny respondents' motlon, filed on JuIy 18, 1983, to dis-

miss petitioner's habeas corpus petition (hereinafter, Petition).

Respondents, in their motion, claim to raise three

grounds on which the Petition should be dismissed. Each ground,

however, is hinged upon 28 U.S.C. S 2254(bl, (c), wherein the

requirement that state remedies be exhausted prior to commenc-

ing federal habeas proceedings is codified-

The first step in resolving the issue of exhaustion of

state remedies must be to determine whether "there is an

absence of available State corrective process," 28 U.S.C. S 225'4

(b). OnIy if it is determined that at the time the Petition

was filed there was a Statej process available in Alabama for

the consideration of petitioner's claims, does it become appo-

site under 28 U.S.C. S 2254(b) , (c) to determine whether those



claims erere presented previously to the Alabama courts. See,

€9.r Piazzola v. Watkins, 442 F.2d 284, 286-287 (5th Cir. I97I).
It is notable that respondents, in alleging that certain of

petitioner's claims were not fairly presented to the State

courts, avoid mentioning how those claims could be presented

in the Alabama courts at the present time. In fact, it is

clear that petitioner is utterly foreclosed as a matter of

Alabama law from presenting any of the claims in her Petition

through either of Alabama's two post-conviction relief proces-
L/ses.-. The Courts of the United States, through the federal

writ of habeas corpus, are the only remaining forum in which

petitioner may challenge the unconstitutional restraint to

which she is now subject.

Not a single one of petitioner's claims fits within the

narrow class of claims that may be heard under the Alabama writ
of error coram nobis. Convictions may be challenged under

coram nobis only on the basis of 'an error of fact, unknown to

the court or the affected party at the time of trial, which

had it been known, r^rould have prevented the judgment chal-

lenged,' Ex parte Vaughn, 395 So.2d 95, 95 (Ata. 197gl. None

of petitioner's claims fits that description.

Each of petitioner's claims is based on asserted viola-
tions of the United States Constitution rather than newly

L/ Because there is no state remedy presently available to
her, it is not necessary for petitioner to respond to the other
claims raised by respondents. Petitioner, however, does not
admit any of the allegations in respondents' Motion to Dismiss.

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discovered evidence. Constitutional challenges have been

allowed under coram nobis only in the limited area of claims

of ineffective assistance of counsel, @, 365

So.2d 335 (AIa. Crim. App. 1978). It is well established that

coram nobis "does not lie to enable the defendant to question

the merits of the case." Butler v. State, 184 So.2d 823, 824

(ela. f966). This is no less the case when the defendant

raises constitutional objections to her conviction. See,

e. !J. , Thomas v. State, 150 So. 2d 3 87 (Ala. 1963 ) ; Ex parte Banks,

178 So.2d 98 (Ala. App. 1965); Ex parte Ellis, 159 So.2d 862

(ela. App. 1964 ). As a result, federal courtsr orl petitions

of habeas corpus, have found Alabama remedies exhausted on the

basis of the unavailabilit,y of coram nobis for the presentation

of constitutional claims. Seer €.9., Piazzola v. Watkins,

supra; Rice v. Simpson , 271 F. SUPP . 267 (M.p. Ala. 1967 ) ,

aff'd, 396 F.2d 499 (5th Cir. 1958), aff'd on other grounds sub

nom., North Carolina v. Pearce, 395 U.S. 711 (1969).

The Alabama writ of habeas corpus, AIa. Code SS l5-2I-1

et seq. (1975), is foreclosed to petitioner because she has

been released from prison as a parolee. In Williams v. State,

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

1953), it was held that Alabama habeas corpus is not available

to parolees.

Petitioner, were she to attempt to proceed under Alabama

habeas corpus, would thus have to do so under the bleak hope

that williams would be overruled for her case. Petitioner need

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not attempt to maintain a State habeas proceeding where the

prospects for success are so speculative; State habeas is,

therefore, exhausted on grounds of unavailability. See

Wilwordinq v. Swenson, 4A4 U.S. 249, 250 (197f).

Even if petitioner's status as a parolee did not bar her

from proceeding under Alabama habeas corPus, with one minor

exception, none of her claims are of the sort which will be

heard under Alabama habeas. Habeas corpus may be used under

Alabama law only to challenge a conviction which is void on its

face because the trial court lacked jurisdiction to pronounce

judgment. See, e.g., Piazzola v. Watkins, supra; Edwards v-

State, 150 So.2d 709 (Ala. 1963), cert. denied, 3'75 U.S- 882

(1963) .

Within the Petition only the claims in paragraphs L9-2L

-- because they attack the indictment for defects associated

with an essential element of the offense -- allege what may be

denominated as a void judgment under Alabama law. See, e4--,

Barbee v. State, 4L7 So.2d 511 (AIa. Crim. App. 1982). Those

claims have been "fairly present€drn Picard v. Connor, 404 U.S.

270, 275 (1971), to the Alabama courts in satisfaction of the

exhaustion requirements of 28 U.S.C. S 2254(b), (c).

Contrary to respondents' unsupported assertions, the

indictment filed against petitioner was exhaustively challenged

at trial and at every stage of petitioner's direct appeal.

In petitioner's plea, the indictment was attacked on numer-

ous grounds, including, in plea number 2, that "the indictment

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fails to state an offense under the laws of the State of

Alabamar" and, in plea number 3, that the indictment "fails to

reasonably apprise the defendant of what it is she is called

upon to defend, " in violation of the Due Process Clause of the

Fourteenth Amendment. At least once during her trial, Peti-
tioner's counsel renewed all of the objections raised in her

plea. Tr. 220 (Pickens County Circuit Court, llaY 29-3L, 1979).

Before the Alabama court of criminal Appeals, the objec-

tions made in the plea were reiterated and elaborated upon.

See Respondents' Exhibit 'B* at 25-29. As in claims L9-2L,

petitioner's objections trere focused on the failure of the

indictment to "identify the accusations or charger" id. at 26,

as well as the "particular act or acts" of petitioner's which

rirere alleged to have been criminal, id. at 27 -

Petitioner, in her brief requesting a rehearing before

the Alabama Court of Criminal Appeals, ResPondents' Exhibit 'rErr

at 5-6, and in her brief in support of her Petition for Writ of

Certiorari in the Alabama Supreme Court, Respondents' Exhibit

'tcrt at 31-33, restated the argument against the indictment

made in her initial brief to the Court of Criminal Appeals.

Through these repeated and futile prayers to the Alabama

courts, petitioner has Provided those courts with a fair and

adequate opportunity to Pass upon the "substantial equivalent,"

Lambert v. Wainwricht, 513 F.2d 277, 282 (5th Cir. L9751, of

claims I9-21.

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coNgLUsroN

Resgrcndents I motion to dismiss the cause should be denied.

Petitioner has exhausted aIl state remedies presently available

to her.

Respectful ly submitted,

JACK GREENBERG
I,ANI GUINIER
SIEGFRIED KNOPF

Sulte 2030
t0 Columbus Cirle
New York, New York 10019

VANZSTAA PENN DURAM
539 tttartha Street
Montgomery, Alabama 35108

ATTORNEYS FOR PETTTTONER

Of Counsel:

ANTEONY G. AIISTERDAIT{
New York University School of Law
Room 327, 40 Washington Square South
New York, New York 10012

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document has been

served upon Jean Williams Brown, Ese. r Assistant Attorney Gen-

eral, by mailing the same to her by first class United States

mail, postage prepaidr oD this 9th day of August, 1983, addressed

as follows:

Jean williams Brown, Esg.
Assistant Attorney General
250 Administrative Building
64 North Union Street
Ittontgomery, Alabarna 36130

ATTORNEY FOR PETITIOIIER

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