McConico v. Cooke, et al

Filing 61

MEMORANDUM OPINION AND ORDER The courts order of September 11, 2014, is VACATED. For the reasons noted within, McConicos motion for a certificate of appealability is DENIED. Signed by Judge William M Acker, Jr on 9/23/14. (SAC )

FILED
2014 Sep-23 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES MCCONICO, III,
Petitioner,
v.
WARDEN JIM COOKE, et al.,
Respondents.

}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:04-CV-171-WMA

MEMORANDUM OPINION AND ORDER
Before the court is a motion for reconsideration filed by
petitioner James McConico, III, on September 17, 2014. McConico, a
prisoner incarcerated within the Alabama Department of Corrections,
requests that this court reconsider its memorandum opinion and
order, dated September 11, 2014. In the opinion and order, the
court deemed McConico’s notice of appeal and motion for certificate
of appealability regarding the court’s August 4, 2014, order to be
untimely filed and declined to issue the certificate.
This court once again recognizes its mistake. While the
clerk’s

office

September

8,

marked

2014,

the

notice

McConico’s

and

notice

motion
of

as

appeal,

received

on

motion,

and

accompanying affidavit all state that he placed the documents in
the prison’s institutional mailbox on September 2, which was within
the time to appeal this court’s order. “A paper filed by an inmate
confined

in

an

institution

is

timely

if

deposited

in

the

institution’s internal mailing system on or before the last day for
filing.” R. Governing § 2254 Cases in U.S. Dist. Cts. 3(d); see

also Houston v. Lack, 487 U.S. 266 (1988) (holding

that an appeal

of a dismissal of a habeas corpus petition is timely if delivered
to prison authorities by a prisoner-petitioner for forwarding
within the thirty-day deadline). This court concedes its error and
will now treat McConico’s motion for certificate of appealability
as timely filed. Consequently, this court’s order dated September
11, 2014, is VACATED, and the following is substituted in its
place.
If a petitioner is detained as a result of process issued by
a state court, an appeal may not be taken from his habeas corpus
proceeding unless a district or circuit judge issues the petitioner
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012);
Fed. R. App. P. 22(b)(1). Such certificate shall only be issued “if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “The petitioner must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
In McConico’s Rule 60(b) motion, the denial of which he is now
appealing,1 he asserts that relief is due to be granted for two
reasons: in this court’s original memorandum opinion and order
dismissing McConico’s petition, “(1) there [was] no resolution of

1

It
ruling on
The court
decision.
is due to

is important to note that this court is unable to reconsider its
McConico’s motion for relief from judgment, filed on July 29, 2014.
lost jurisdiction over the matter once McConico appealed the
This court may only consider whether a certificate of appealability
be issued.

his claims on the merits, and (2) there was a defect in the
integrity of the federal habeas proceedings, when the assigned
magistrate judge did not issue a report and recommendation.” (Doc.
54 at 2-3).
McConico’s

first

ground

for

relief

is

meritless.

An

application for writ of habeas corpus is due to be granted if the
adjudication of the petitioner’s claim “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law,” or “resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d) (2012). In this court’s memorandum opinion and order dated
November 23, 2005,

the court listed each of the claims alleged by

McConico; each was presented to and rejected by the Alabama Court
of Criminal Appeals. This court considered the Court of Criminal
Appeals’ decision and concluded:
The Alabama Court of Criminal Appeals’ adjudication of
these claims did not result in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, and . . . the decision
was not based on unreasonable determinations of the facts
in light of the evidence presented in the state court
proceedings.
(Doc. 34 at 9). This court considered each of McConico’s claims,
applied the appropriate standard of review (including application
of procedural bars), and determined that none of the presented
grounds warranted granting his petition. Nothing more is required;
there is no independent requirement that the court discuss the

merits of all nineteen of McConico’s claims separately. Therefore,
because

McConico

has

not

substantially

shown

a

denial

of

a

constitutional right, his first stated ground for issuance of a
certificate of appealability is unavailing.2
Similarly, McConico’s claim “that there was a defect in the
integrity of the federal habeas proceedings, when the assigned
magistrate judge did not issue a report and recommendation” is
insufficient. (Doc. 54 at 2-3). In support, McConico cites 28
U.S.C. § 636(b)(1)(C), which states that “the magistrate shall file
his proposed findings and recommendations . . . with the court.”
From this, he concludes that the failure to do so prejudiced him
and warrants granting his Rule 60(b) motion. (Doc. 57 at 2).
McConico cites no authority, however, to show that this in any way
affects his constitutional rights.
This court has only located a single case in which a habeas
corpus petitioner raised such an argument. In Toland v. Walsh, the
magistrate did not issue a report and recommendation addressing the
plaintiff’s petition, but instead the district court issued a
memorandum opinion and order dismissing the petition after the
issues were fully briefed. No. 9:04-CV-0773(GLS), 2008 WL 657247
(N.D.N.Y. 2008). The petitioner argued that this deprived him of

2
This court recognizes that McConico’s claim could be construed as an
attack on the merits of the original decision, triggering the jurisdictional
requirements for successive habeas petitions under 28 U.S.C. § 2244. The court
finds, however, that the claim is properly construed as an attack on the
court’s process in rendering its decision, so the court does not consider
McConico’s Rule 60(b) motion to be an improper successive habeas petition. See
Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007).

the opportunity to file objections to the magistrate’s non-existent
report and recommendation, but the court rejected this argument.
Id. at *2-3. The court found that a district court may implicitly
rescind a referral of an action to a magistrate and address the
claims itself, once they are fully briefed. Id. at *3. The court in
Toland found no injustice in its fair and expedient resolution of
the action; neither will this court do so today. Because this court
conducted its own de novo review of the action before dismissing
the petition, McConico’s constitutional rights were not violated by
this court’s disposition without aid of the magistrate’s report and
recommendation. See Jones v. Frank, 28 F. Supp. 2d 956, 958 n.1
(E.D. Penn. 1998) (completing its own de novo review of the entire
petition in lieu of a magistrate’s report and recommendation).
CONCLUSION
The court’s order of September 11, 2014, is VACATED. Because
neither of McConico’s listed grounds demonstrates a substantial
denial of a constitutional right, rendering the resolution of the
current petition debatable among reasonable jurists, McConico’s
motion for a certificate of appealability is DENIED. He may, of
course, request such certificate from the Court of Appeals.
DONE this 23rd day of September, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE