United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
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).
of 2009, McConico filed a habeas corpus petition on this
Court's § 2254 form,  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.
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)).
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.)
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
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
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.)
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.)
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 ...