Theodore v. Warden, FCC Coleman Low

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

FRANKEL A. THEODORE,

Petitioner,

v. Case No: 5:23-cv-157-WFJ-PRL

WARDEN, FCC COLEMAN – LOW,

Respondent. ____________________________________

ORDER

In an Order dated April 26, 2023, the Court dismissed the Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack of jurisdiction and because a claim was not cognizable under § 2241. (Doc. 3). Now before the Court is Petitioner’s “Rule 60(b), Motion to Reinstate; [Judicial Error in law].” (Doc. 5). To obtain relief under Rule 60(b)(1), “a litigant must show that the judgment came about through mistake, inadvertence, surprise or excusable neglect.” See J.D. Pharmaceutical Distributors, Inc. v. Save-On Drugs & Cosmetics Corp., 893 F.2d 1201, 1209 (11th Cir. 1990). “The ordinary meaning of the term “mistake” in Rule 60(b)(1) includes a judge's legal errors.” Kemp v. United States, 142 S. Ct. 1856, 1862 (2022). The decision to grant a motion brought pursuant to Rule 60(b) is committed to the sound discretion of the district court. Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1343 (11th Cir. 2015). Petitioner claims the Order dismissing his petition includes “contradictions of law.” (Doc. 5 at 1). Petitioner claims that under federal habeas law he can attack the legality of his custody, referring to Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), as cited in the Order. See Doc. 5 at 1; Doc. 3 at 4. However, a motion to vacate that collaterally attacks the legality of a sentence must be brought under § 2255, rather than § 2241. McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F. 3d 1076, 1081 (11th Cir. 2017) (en banc). Here, Petitioner’s attempt to challenge the legality of his sentences via a § 2241 petition was properly dismissed. ! CONCLUSION Petitioner’s Rule 60(b) Motion (Doc. 5) is DENIED. DONE and ORDERED in Tampa, Florida on June 13, 2023.

WILLIAM F. iS UNITED STATES DISTRICT JUDGE Copies furnished to: Pro Se Party

' The final count of the Petition—claiming his detention violates 18 U.S.C. § 4081 because he is being housed with sexual offenders—is also not cognizable under § 2241. Instead, Petitioner is challenging the conditions of his confinement. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (describing “prisoner classification” as a condition of confinement and stating “Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081 [(classification and treatment of prisoners)]”). Claims challenging the conditions of confinement “fall outside th[e] core [of habeas corpus]” and may be brought in a civil rights action. Nelson v. Campbell, 541 U.S. 637, 643 (2004); Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam); Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973).