In Re: William Stewart Malone, Jr., Petitioner, 74 F.3d 1232 (4th Cir. 1996)

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U.S. Court of Appeals for the Fourth Circuit - 74 F.3d 1232 (4th Cir. 1996)

Submitted: January 9, 1996. Decided: January 23, 1996


William Stewart Malone, Jr., Petitioner Pro Se.

Before HAMILTON and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


William Stewart Malone, a federal prisoner, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1988). This court will not entertain a Sec. 2241 petition unless a 28 U.S.C. § 2255 (1988) motion is "inadequate [or] ineffective to test the legality of a person's detention." Swain v. Pressley, 430 U.S. 372, 381 (1977). The petitioner bears the burden of showing the inadequacy or ineffectiveness of a Sec. 2255 motion. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).

Malone makes no showing that Sec. 2255 provides an inadequate remedy. Although he has brought a prior unsuccessful Sec. 2255 motion, this fact alone does not establish that the remedy is inadequate. Id. In his Sec. 2241 petition, Malone makes only conclusory allegations that there was insufficient evidence to sustain his guilty plea and that counsel was ineffective in failing to pursue allegedly exculpatory evidence. Finally, Malone's complaint of district court delay in ruling on his Sec. 2255 motion is moot, since the district court denied the motion. United States v. Malone, Nos. CR93-312-A; CA-94-1146-AM (E.D. Va. Jan. 25, 1995), aff'd No. 95-6271 (4th Cir. Dec. 20, 1995) (unpublished).

Accordingly, although we grant leave to proceed in forma pauperis, we dismiss the petition for a writ of habeas corpus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DISMISSED