Malloy v. Wise et al (INMATE 1)
MEMORANDUM OPINION AND ORDER denying 43 FRCP 60 MOTION for Relief. Signed by Honorable Judge Truman M. Hobbs on 12/8/2011. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
ARTHUR BRENNAN MALLOY,
DAVID WISE, et al.,
CASE NO. 2:09-CV-964-TMH
MEMORANDUM OPINION AND ORDER
Under applicable federal law, 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). On March 18, 2010, the court
dismissed Malloy’s habeas petition because he had failed to exhaust his state court
remedies by filing a petition for certiorari in the appropriate state circuit court. Malloy
now seeks relief from that judgment.
According to Malloy’s F ED R. C IV. P. 60 motion, he filed on January 6, 2011, a
petition for writ of certiorari in the Circuit Court of Montgomery County, Alabama,
challenging the action of the Alabama Board of Pardons and Paroles denying him a
pardon. That court treated the petition as a petition for post-conviction relief pursuant to
A LA. R. C IV. P. 32 and transferred the petition to the court of conviction. Malloy’s
attempts to challenge that transfer have not been successful. Thus, Malloy now claims
that he has exhausted his state court remedies, and this court should reinstate his habeas
petition. Malloy is wrong because he overlooks the fact which is ascertainable from his
own submissions that the original state court petition remains pending in the court to
which it was transferred. Thus, Malloy has not satisfied the exhaustion requirement, and
his F ED R. C IV. P. 60 motion is due to be denied. Accordingly, it is
ORDERED that Malloy’s F ED R. C IV. P. 60 motion for relief be and is hereby
Done this 8th day of December, 2011.
/s/ Truman M. Hobbs
TRUMAN M. HOBBS
SENIOR UNITED STATES DISTRICT JUDGE
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