Order

    7a

MAGGIE S. BOZEMAN

Petitioner

vs.

EAION M. LAI"IBERT; et al

Respondents

IN THE UNITED STATES DISTRICT COTJRT

FOR THE }{IDDLE DISTRICT OF AI-ABAMA
NORT}IERN DIVISION

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EY

ORDER

This cause is before the C'Ourt on resPondents' Eotion
'to dismiss the petition for habeas corPus. Petitioner, ,nt is

no!, on parole, has attacked her- conViction for voter fraud on

numerous constitutional gror,rnds. She clairns that no rational

jury could have found her guiLty based on the evidence Presented

at trial; that the indictment faiLed to prowide her with

adequate notice of the'charges; t.hat she was convicted of

engaging in conduct Protected by the Const'i-tution and the

Voting Rights Act; that the jury instrucEions created ex post

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

her Sixtrh Amendment rights; and that she was selectively and

discriminatorily prosecuted. Respondents have moved to disniss

for failure to exhaust state remedies. Petitioner asserts that

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

This Court a6lrees.

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 become known after trial

FILED
sEP t 1983

THOMAS

CIVIL ACTION NO. 83-H-579-N



The office of writ of error coram nobis, under
Alabama law, is to bring to the attention of the.
court an error of fact, unknown to the court or
the affected party at the time of trial, which
had it been known, would have prevented the
judgnent challenged; indeed, the writ is in.effect
a motion for new trial on the gror:nd of newly
discovered evidence.

Vaughn v. State, 395 So.2d 95, 96 (A1a. L979); see Thigpen v.

State, 372 So.2d 385, 386-87 (Ata. Cr. App. L979); Sr:mers v.

State, 366 So.2d 336, 339 (Ala. Cr.App. 1978). None of

petitioner's claims raises the gror:nd of newly discovered

evidence; rather, all relace to [fre conduct of the trial: Th"

writ also lies to raise a claim of ineffective assistance of

counsel, Sr:mmers v. State, supra, Bt 34L , but Petitioner has

raised no such claim.

The state writ of habeas corpus also is unavailable to

petitioner , bec,ause she is a parolee . Llilliares v. State, 155

So.2d 322 (A1a.App.), cert. denied, I55 So.2d 323 (1963), held

that habeas is available only to a Petitioner who is under

"actual or physical restraint. " The court characte rLzed parole

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

McCurley, 4L2 So.2d L233, L235 (Ala. Cr. APP.), cert. denied,

412 So.2d L236 (198I), cert. denied, 456 U.S. 1006 (1983).

Petitioner need not EIo through the motions of attemPtinB to

persuade the state courts to overrule l'lil1ians. BIackled.ee v.

Perry , /+L7 U. S . 2L, 24 (197a); see Galtieri v. l'lainwright,

582 F.2d 348, 354-55 n.13 (5th Cir. 1976). Thus, D€ither

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Alabama writ is available to petitioner, and she satisfies
the exhaustion requirement. Accordingly, it is

ORDERXD that the motion to dismiss is denied.

Respondents are ORDERED to comply with this Court's Order of

Jr:ne 28, 1983, to show cause why the writ should not issue,

on or before twenty days from the date of this order. Respondents

at that time also should file any response they may have to

petitioner's motion to furnish transcripts. Said motion will
be deemed submitted to the Court_.twenty days from the date

of this order, and may be decided'at any time thereafter:

DONE this lst day of September, f983.

5 , 4i://^
I]NITED STATES DISTRICI JUDGE

)- srp o 21983

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