McConico v. Alabama Board of Pardons & Parole

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          SUSAN RUSS WALKER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On 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.

         Respondents 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.

         II. DISCUSSION

         A 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).

         Under 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).

         Respondents' 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, finding:

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.

         Doc. No. 25-5 at 1-2.^[1] After the circuit court denied McConico's substantial hardship request, McConico filed this federal court action instead of paying the filing fee^[2] 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 hardship request.^[3]

         When 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.

         McConico 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, ^[4] and 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 ...