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McConico v. Price

United States District Court, N.D. Alabama, Southern Division

November 21, 2014

JAMES MCCONICO, JR., Petitioner,
v.
WARDEN CHERYL PRICE AND THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents

James McConico, Jr., Petitioner, Pro se, Bessemer, AL.

For Cheryl Price, Warden, Respondent: Attorney General of the State of Alabama, The, Respondent: John M Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Montgomery, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.

Petitioner James McConico, Jr. (" McConico" or " Petitioner"), a person in custody under a judgment of a court of Alabama, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for preliminary review. On or about September 18, 2014, McConico moved for the court to treat the petition as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure. (Doc. 17). Upon consideration, the undersigned finds McConico's motion to treat his habeas petition as a Rule 60(b) motion is due to be GRANTED, and the Rule 60(b) motion is due to be DISMISSED.

I. Procedural History

On June 3, 1999, a jury in the Circuit Court of Jefferson County, Alabama convicted McConico of murder. (Docs. 1 at 2 & 11 at 2). The next day, McConico was sentenced as a habitual offender to life imprisonment. (Doc. 11 at 2). McConico filed numerous petitions for post-conviction relief pursuant to Rule 32, Ala. R. Crim. P. (Id.; doc. 11-1 at 2-3).

On November 28, 2003, McConico filed his first post-trial writ of habeas corpus in a federal court challenging his 1999 conviction.[1] (Docs. 11 at 2 & 11-1 at 3). On November 30, 2007, United States District Judge Lynwood Smith adopted United States Magistrate Judge Robert R. Armstrong, Jr.'s report and recommendation and dismissed McConico's habeas petition. (Doc. 11-2; see 2:03-cv-3198-CLS-RRA, doc. 107). On March 26, 2008, the United States Court of Appeals for the Eleventh Circuit denied McConico's motion for a certificate of appealability. (Doc. 11-3). Thereafter, McConico filed several motions for relief from judgment, amendments thereto, and motions for reconsideration. ( See 2:03-cv-3198-CLS-RRA, docs. 124, 127, 134, 144, 145, 148, 159, & 161). On March 29, 2013 Judge Smith denied McConico's most recent motion for relief from judgment and explained, as he had been previously instructed, McConico must petition the Eleventh Circuit Court of Appeals for an order authorizing him to file a successive petition if he intended to raise further challenges to his 1999 murder conviction. (2:03-cv-3198-CLS-RRA, doc. 163 at 4).

On June 2, 2014, without seeking authorization from the Eleventh Circuit, McConico filed this habeas petition. (Doc. 1). In the petition, McConico declares he is not seeking re-adjudication of constitutional claims, but requests a determination of claims he was not permitted to bring in his previous habeas petition. (Id. at 10). McConico attacks the validity of his prior habeas, arguing Magistrate Judge Armstrong improperly denied him the opportunity to raise certain claims because the respondents seized all of his legal work product and the court did not order them to return it or provide him with additional copies. (Id. at 8).

On August 18, 2014, the undersigned notified McConico that Respondents had filed an answer seeking summary dismissal of his petition. (Doc. 12). This Order explained the court would treat his case as ripe for summary disposition and afforded McConico twenty-one days to supply additional evidentiary materials or legal arguments in support of his petition. (Id.). McConico then moved for an extension of time and requested a copy of Respondents' answer and " the documents he would need to prove his claim." (Doc. 13). On August 26, 2014, the undersigned granted McConico's motion for an extension of time, provided him with copies of Respondents' answer, but denied his request for unspecified " documents he would need to prove his claim." (Doc. 14).

Instead of filing a traverse with additional evidentiary materials or legal arguments in support of his petition, McConico has filed a " Motion to Compel Pursuant to Rule 56(d) Federal Rules of Civil Procedure." (Doc. 15). McConico makes a plethora of requests in this motion. First, McConico requests a " continuance, " claiming he is unable to obtain facts " to show . . . that there are adjudicated claims in his prior Habeas Petitions that he was impeded from including in his Amended Habeas Petition by the Respondents and . . . Magistrate [Judge] [] Armstrong due to the Judge [sic] biasness and Respondent's state created impediments." (Id.at 1). McConico also requests the court order Respondents to provide him with a complete set of his trial and evidentiary hearing transcriptions and over fifty documents from his prior habeas case. (Id.at 2-3). McConico also requests appointment of counsel, ( id . at 3), and for discovery under Rule 6 of the Rules Governing Section 2254 Cases ( id . at 4). On September 3, 2014, the undersigned denied McConico's most recent motion, (doc. 15). (Doc. 16). The undersigned gave McConico until September 30, 2014, to file any additional materials in support of his petition. (Id.).

In response to Respondents' answer, McConico contends his petition is not successive, but asserts he is attacking the integrity of his first habeas petition as a fraud that deprived him of the review of certain constitutional claims. (Doc. 15 at 4). He explains that he " hasn't filed a second habeas petition" and insinuates the court could treat his petition as a Rule 60(b) motion. (Id.). On October 3, 2014, McConico filed a traverse. (Doc. 20).

On or about September 18, 2014, McConico moved for the court to treat his petition as a motion pursuant to Rule 60(b), Federal Rules of Civil Procedure. (Doc. 17). McConico explains he is not attacking the substance of district court's resolution of this prior habeas petition, but the defect in the integrity of the petition. Thereafter, McConico filed a traverse, (doc. 20), and two evidentiary submissions, (docs. 21-22). Upon consideration, the undersigned finds McConico's motion to treat his habeas petition as a Rule 60(b) motion is due to be GRANTED. McConico's arguments will be considered below.

II. Analysis

Rule 60(b) provides:

On a motion or just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposition party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reverse or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

A motion under Rule 60(b) must be made " within a reasonable time" and for " reasons (1), (2), and (3) no more than a year after the entry of judgment." Rule 60(c). Because it has been over a year since the judgment on McConico's 2003 habeas petition, McConico may not proceed under grounds (1), (2), or (3). See id .

Under the remaining grounds, a movant is limited to " a reasonable time" to file his motion for relief from judgment. Judge Smith entered judgment in this case on November 30, 2007 -- almost seven years ago. More than a reasonable about of time has passed, and McConico may not attack the " integrity" of prior habeas proceedings through a Rule 60(b) motion at this time. See Case No. 2:03-cv-3189-CLS-RRA, doc. 163 at 4 (denying McConico's Rule 60(b) motion because, after five years, there is " simply, no way for the petitioner to re-open that case to litigate it once again"). McConico makes no argument that recent events or circumstances warrant relief from judgment. Instead, all of the facts and circumstances upon which McConico bases his motion existed at the time of judgment. Accordingly, McConico's motion was not brought within a reasonable time as required by the Rule.

III. Recommendation

Based on the foregoing, the undersigned RECOMMENDS Petitioner's motion to treat this petition as a Rule 60(b) motion for relief from judgment be GRANTED, that such motion be DENIED, and this action DISMISSED WITH PREJUDICE.

IV. Notice of Right to Object

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge."


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