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McConico v. Culliver

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

April 29, 2019

JAMES McCONICO, JR., Petitioner,
v.
GRANTT CULLIVER, Respondent.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         James McConico, Jr., a state prisoner presently housed at a correctional facility in Union Springs, Alabama (see Doc. 54, at 3), has filed a motion for relief from judgment pursuant to Rule 60(b)(4) & (6) of the Federal Rules of Civil Procedure (Doc. 54). This matter has been referred to the undersigned for the entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(3) and General Local Rule 72(a)(1). It is recommended that Petitioner's motion (Doc. 54) be DISMISSED as untimely and, alternatively, DENIED because it appears to be directed to a judgment different than the one entered in this case and because his motion does not satisfy the requirements for relief under Rule 60(b)(4) or Rule 60(b)(6).

         BACKGROUND

         In June of 2009, McConico filed a habeas corpus petition on this Court's § 2254 form, [1] wherein he mentioned convictions from both 1999 (for murder out of Jefferson County, Alabama) and 1996 (for trafficking out of the Circuit Court of Conecuh County, Alabama) but went on to make clear that he was not challenging those convictions; instead, Petitioner stated his claim was that Warden Grantt Culliver had violated his Eighth Amendment rights by failing to (and refusing to) protect him from psychological and physical injuries inflicted by gang members and correctional officers. (Doc. 8, at 2 & 7.) The Magistrate Judge entered a recommendation on September 24, 2009 that McConico's habeas petition be dismissed because his claim was not properly brought in a habeas corpus action and, instead, should have been challenged in a civil rights action in accordance with 42 U.S.C. § 1983. (Doc. 21.)[2] The district court adopted the recommendation of the Magistrate Judge and entered judgment against McConico on October 5, 2009. (Doc. 27; see also Doc. 26 (order adopting report and recommendation)).

         McConico later engaged in additional motion practice, including the filing of two motions to alter, amend or vacate judgment. (See Docs. 33 & 39.) Both of these motions were swiftly denied by the Court. (Docs. 34 & 40.) On March 3 and 4, 2010, McConico filed a second notice of appeal (Doc. 41), a second motion for certificate of appealability (Doc. 42), another motion to appoint counsel (Doc. 43), and, three weeks later, a motion for leave to appeal in forma pauperis (Doc. 46). On March 31, 2010, the magistrate judge recommended the denial of Petitioner's second motion for issuance of a certificate of appealability and motion for permission to appeal in forma pauperis (Doc. 47). By Order dated one day later, on April 1, 2010, the Court adopted the magistrate judge's report and recommendation, reiterating that McConico's motion for certificate of appealability and motion for leave to appeal in forma pauperis were due to be denied, as was petitioner's motion to appoint counsel. (Doc. 48.)

         McConico filed written notice of appeal on May 6, 2010 (Doc. 51) and by order dated July 22, 2010, the Eleventh Circuit Court of Appeals denied Petitioner's motion for certificate of appealability and mooted his motions to proceed on appeal in forma pauperis and for appointment of counsel (Doc. 53).

James McConico, Jr., an Alabama prisoner, moves for a certificate of appealability (“COA”) in order to appeal the denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus and the denial of his Fed.R.Civ.P. 60(b) motion for relief in relation to his § 2241 petition. In his § 2241 petition, McConico alleged that prison officials at Holman Prison in Atmore, Alabama, failed to protect him from psychological harassment and physical injuries caused by prison gang members, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. McConico admitted that he had been denied relief on this claim in the Montgomery County Circuit Court.
In order to obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court has denied a habeas petition on procedural grounds, the petitioner must show that jurists of reason would find debatable whether (1) the district court was correct in its procedural ruling, and (2) the petition stated a valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).
As an initial matter, both § 2241 and § 2254 apply to McConico's petition because he is in custody pursuant to a state court judgment. See Medberry, 351 F.3d at 1058-60. The district court, however, properly found that McConico should have raised his claim, challenging prison officials' failure to protect him from prison gangs, under 42 U.S.C. § 1983, not § 2241 or § 2254, because McConico sought to challenge his conditions of confinement and was not raising any issue connected to the legality of his underlying conviction[s]. The district court did not err by failing to liberally construe McConico's petition as being raised under § 1983 because McConico already filed such a complaint in the district court raising a similar claim, and relief was denied. See McConico v. Allen, et al., CM/ECF for the U.S. Dist. Ct. for S.D.Ala. No. 1:08-cv-00168-CG-C, doc. 19). Accordingly, the district court did not err by denying his § 2241 petition.
In his Rule 60(b) motion seeking relief from the denial of his § 2241 petition, McConico argued that the district court overlooked the fact that the Montgomery County Circuit Court only addressed his claim that the defendants had failed to protect him from verbal harassment. He stated that his constitutional claims raised pursuant to the Eighth and Fourteenth Amendments were not adjudicated in state court. The district court properly found that the state court's decision was not relevant to its determination that McConico's claim was not properly brought in a habeas corpus petition. Accordingly, the district court did not err by denying the Rule 60(b) motion.

(Id. at 3-4, 4-5 & 5.)

         On March 7, 2019, McConico filed his motion for relief from judgment in accordance with Rule 60(b)(4) & (6) of the Federal Rules of Civil Procedure (see Doc. 54), almost nine years after the appellate court's decision (compare Id. with Doc. 53) and more than nine years after this Court's entry of judgment on October 5, 2009 (compare Doc. 54 with Doc. 27). In his motion, McConico stakes the position that the judgment denying his petition for writ of habeas corpus directed to a 1994 murder conviction out of the Circuit Court of Conecuh County, Alabama is void because it was based upon a recommendation entered by a Magistrate Judge Armstrong which applied the AEDPA to his case rather than the law in effect at the time of commission of the crime. (See Doc. 54, at 1-3.)[3]

         LEGAL ANALYSIS

         “Rule 60(b) allows a party to request relief from a final judgment[, ]” Gilley v. Monsanto Co., Inc.,428 Fed.Appx. 883, 884 (11th Cir. May 31, 2011), cert. denied,565 U.S. 1113, 132 S.Ct. 1026, 181 L.Ed.2d 738 (2012), and, in relevant measure, provides the following grounds for relief: “(4) the judgment is void; . . . or (6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(4) & (6). “A judgment is ‘void' under Rule 60(b)(4) ‘if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law[, ]'” Gill v. Wells, 610 Fed.Appx. 809, 811 (11th Cir. Apr. 16, 2015), quoting Burke v. Smith,252 F.3d 1260, 1263 (11th Cir. 2001), and “[r]elief under Rule ...


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