United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
RUSS WALKER, UNITED STATES MAGISTRATE JUDGE
February 3, 2019, James McConico Jr. filed this petition for
writ of habeas corpus under 28 U.S.C. § 2254. Doc. No.
1. McConico, an Alabama inmate serving life sentences for
murder and trafficking in cocaine, challenges the Alabama
Board of Pardons and Paroles' (“Parole
Board's”) February 2018 decision denying him
parole. He claims violations of his due process and equal
protection rights and alleges that his parole denial was
based on false information.
argue that McConico has not exhausted his state court
remedies and that his petition should be dismissed without
prejudice to allow him to exhaust in the state courts. Doc.
Nos. 21 & 25. This court entered an order allowing
McConico to demonstrate why his petition should not be
dismissed without prejudice for his failure to exhaust state
court remedies, and McConico filed a response. Doc. No. 39.
petition for writ of habeas corpus filed by “a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the
[convicting] State.” 28 U.S.C. § 2254(1)(b)(1)(A).
Because McConico is “in custody pursuant to the
judgment of a State court, ” he is subject to §
2254's exhaustion requirement. See Dill v. Holt,
371 F.3d 1301, 1302-03 (11th Cir. 2004). “An applicant
shall not be deemed to have exhausted the remedies available
in the courts of the State . . . if he has the right under
the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c).
“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process, ” including review by the state's
court of last resort, even if review in that court is
discretionary. O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); see Pruitt v. Jones, 348 F.3d 1355,
1359 (11th Cir. 2003).
Alabama law, initial review of an action by the parole board
“is by a petition for a common-law writ of certiorari
filed in the Circuit Court of Montgomery County.”
Henley v. State of Alabama Board of Pardons and
Paroles, 849 So.2d 255, 257 (Ala.Crim.App.2002); see
also Johnson v. State, 729 So.2d 897, 898
(Ala.Crim.App.1997). A complete round of appellate review of
an adverse ruling on a petition for a common-law writ of
certiorari in Alabama is by (1) appealing the denial of the
petition to the Alabama Court of Criminal Appeals,
see § 12-3-9, Ala. Code 1975; (2) petitioning
the Alabama Court of Criminal Appeals for rehearing,
see Ala.R.App.P. 39(c)(1); and (3) seeking
discretionary review in the Alabama Supreme Court,
see Ala.R.App.P. 39(c). Dill v. Holt, 371
F.3d 1301, 1303 (11th Cir. 2004).
answer and the evidentiary materials submitted to this court
reflect that McConico has not exhausted his claims in the
Alabama courts. On November 8, 2018, McConico filed a
petition for a common-law writ of certiorari in the Circuit
Court of Montgomery County challenging the constitutionality
of the Parole Board's February 28, 2018 decision denying
him parole. Doc. No. 25-1 at 1-9. With his petition for
certioari, McConico submitted an affidavit of substantial
hardship requesting that he be allowed to proceed in
forma pauperis. Doc. No. 25-2 at 1-3. On November 19,
2018, the circuit court denied McConico's substantial
hardship request. Doc. No. 25-3. McConico then filed a motion
to reconsider the denial of his substantial hardship request.
Doc. No. 25-4 at 1-4. On December 6, 2018, the circuit court
entered an order denying McConico's motion to reconsider,
It is hereby ORDERED, ADJUDGED and DECREED that the Affiant
is not indigent and the Motion to Reconsider Denial of
Affidavit of Substantial Hardship is DENIED.
Within the last year, Affiant has had gross deposits in his
account, ranging in amount from $30-$1, 280; more than enough
from which a filing fee could have been paid. See Ex
parte Cook, 202 So.3d 316 (Ala. 2016). In the year
proceeding Affiant's filing of the Affidavit of
Substantial Hardship, a total of $7, 280.00 was deposited
into his account. In Affiant's Motion to Reconsider
Denial of Substantial Hardship, he erroneously argued that
the money that was deposited into his inmate account should
be considered an asset of his son and therefore excluded from
consideration in whether to grant indigent status. The money,
after deposited into Affiant's inmate account, is not an
asset to Affiant's son but instead becomes an
“asset” to Affiant. In determining the fact of
indigency, this court has only taken into consideration the
deposits on Affiant's inmate account.
Therefore, the Motion is due to be and is hereby DENIED.
No. 25-5 at 1-2. After the circuit court denied
McConico's substantial hardship request, McConico filed
this federal court action instead of paying the filing
or seeking review of the substantial hardship denial by
filing a petition for a writ of mandamus with the Alabama
Court of Criminal Appeals asking that court to order the
circuit court to set aside its order denying his substantial
McConico filed his § 2254 petition with this court, he
had not properly filed a common-law writ of certiorari with
the Circuit Court of Montgomery County-because he did not pay
the filing fee after his substantial hardship request was
denied-and he had never had the merits of his claims
challenging his parole denial considered by the state courts.
Consequently, his claims are unexhausted.
argues that the exhaustion requirement should be excused
because, he says, it is too late for him to return to state
court to file a petition for a writ of mandamus with the
Alabama Court of Criminal Appeals seeking an order directing
the circuit court to set aside its order denying his
substantial hardship request. Doc. No. 39 at 5-6. However,
McConico has not shown that he cannot return to the Circuit
Court of Montgomery County to file a common-law writ of
certiorari challenging the denial of his parole, accompanied
by the filing fee or a new substantial hardship request,
thereby receive a merits determination of his claims. Should
McConico properly file a common-law writ of certiorari
challenging the denial of his parole and then ...