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Galato v. Henry

United States District Court, N.D. Florida, Panama City Division

March 23, 2018

JOHN GALATO, Petitioner,
v.
MARK A. HENRY, WARDEN, FCI MARIANNA, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on ECF No. 36, Petitioner's Motion Under Rule 60(b)(6) for Relief From This Court's Judgment Dismissing § 2241 Motion for Lack of Jurisdiction, which has been referred to the undersigned. This case was dismissed on August 17, 2001, when the Court denied Petitioner's amended petition for writ of habeas corpus. (ECF Nos. 14, 16, 17.) Petitioner appealed that decision to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed this Court's decision denying his petition on April 24, 2002. (ECF No. 33.) Then almost 16 years later, Petitioner filed the pending Rule 60(b)(6) motion. For the following reasons, the undersigned recommends that Plaintiff's motion be denied.

         Petitioner initiated his case by filing a “Motion for the Issuance of a Writ of Mandamus, ” ECF No. 1, which he then amended to a petition for writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 4.) Relevant to the pending motion, Petitioner challenged Count 23 of the Indictment, arguing that at the time of the commission of the offense, drug trafficking was not properly an underlying offense for the firearm charge. (ECF No. 4.) Therefore, Petitioner says that this charge amounted to an ex post facto violation. (Id.)

         In the report and recommendation, the Court noted that a collateral attack on the validity of a federal conviction and sentence such as this claim is more properly brought under 28 U.S.C. § 2255 in the district of conviction. (ECF No. 14.) Further, the Court stated that Petitioner could not meet the requirements under Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir. 1999), to allow the Court to review his ex post facto claim under § 2241. (ECF No. 14.) The Court also stated that it did not have jurisdiction to consider the § 2241 petition as a § 2255 motion. (ECF No. 14.)

         The report and recommendation was entered on July 10, 2001. (Id.) The district judge adopted the report and recommendation, denied the petition, and dismissed the case on August 17, 2011. (ECF Nos. 16, 17.) Petitioner then appealed to the Eleventh Circuit. In affirming the Court's decision on April 24, 2002, the Eleventh Circuit, inter alia, noted that the Court did not err in finding that the challenge to his § 924(c) conviction must be brought in a 28 U.S.C. § 2255 motion, rather than a § 2241 petition, again citing Wofford. (ECF No. 33.)

         Petitioner's motion for relief from judgment, ECF No. 36, was filed on March 21, 2018-almost 16 years after the Eleventh Circuit affirmed the denial of his § 2241 petition. As grounds for the motion, Petitioner argues that the Court failed to address the above claim in his § 2241 petition because it “mistakenly” concluded that it lacked jurisdiction. Petitioner says that in 2017 the Eleventh Circuit overturned Wofford in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). Therefore, Petitioner contends that because the Court's mistake prevented it from addressing the merits of his claim, the Court should reopen his § 2241 proceeding to do so. (ECF No. 36.)

Under Fed.R.Civ.P. 60(b),
On motion and just terms, the court may relieve a party or its legal representatives from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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 opposing 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 reversed or vacated; or applying it ...

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