McConico v. Warden Kenneth Peters

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES MCCONICO, JR., # 117395,
Petitioner,
vs.
WARDEN KENNETH PETERS,1
Respondent.
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CIVIL ACTION NO. 25-00119-JB-B
ORDER
Petitioner 	James 	McConico, 	Jr. 	(“McConico”), 	an 	Alabama
prison inmate proceeding without an attorney, filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2241 in the United States
District 	Court 	for 	the 	Northern 	District 	of 	Alabama.2 	(Doc. 	1).
McConico also filed a motion to proceed without prepayment of fees.
(Docs. 2). 	This action was subsequently transferred to the United
1 McConico’s 	petition 	names 	several 	Respondents, 	but 	the 	only
proper 	Respondent 	is 	McConico’s 	current 	custodian—the 	warden 	of
the 	facility 	where 	McConico 	is 	confined. 	See 	Rules 	Governing 	§
2254 	Cases, 	R. 	2(a) 	(applicable 	to 	§ 	2241 	cases); 	Rumsfeld 	v.
Padilla, 	542 	U.S. 	426, 	434-35 	(2004). 	Thus, 	Kenneth 	Peters, 	the
Warden of Fountain Correctional Facility, is the proper Respondent
in 	this 	case. 	(See 	Doc. 	4 	at 	2-3). 	The 	Clerk 	is 	DIRECTED 	to
substitute 	Warden 	Kenneth 	Peters 	as 	the 	Respondent 	in 	this 	case,
and to terminate all other Respondents.
2 Because 	McConico 	does 	not 	challenge 	his 	conviction 	or 	sentence
but 	rather 	his 	detention 	based 	on 	alleged 	criminal 	activity 	for
which 	he 	had 	not 	been 	charged, 	it 	appears 	that 	his 	petition 	is
properly construed as seeking habeas relief pursuant to 28 U.S.C.
§ 2241. 	See Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401,
403 n.1 (11th Cir. 1988) (explaining that 28 U.S.C. § 2254 “applies
only to post-trial situations”).
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States District Court for the Southern District of Alabama. 	(See
Docs. 4, 7, 8).
A 	review 	of 	McConico’s 	petition 	reflects 	that 	it 	is 	not 	on
the form required by this Court for a § 2241 habeas petition. 	(See
Doc. 	1). 	Accordingly, 	if 	he 	wishes 	to 	proceed 	with 	this 	action,
McConico is ORDERED to file an amended petition on or before June
16, 2025, using the form required by this Court for a § 2241 habeas
petition. 	McConico must fully complete all applicable sections of
the petition form and must provide only the information requested
in 	each 	section 	of 	the 	form. 	If 	additional 	pages 	are 	needed 	to
fully complete any section of the petition form, those pages must
strictly follow the format set forth in the petition form.
Additionally, 	a 	review 	of 	McConico’s 	motion 	to 	proceed
without 	prepayment 	of 	fees 	reveals 	that 	he 	appears 	to 	have 	had
sufficient 	funds 	in 	his 	inmate 	account 	to 	pay 	the 	$5.00 	habeas
filing 	fee 	when 	he 	filed 	this 	action. 	(See 	Doc. 	2 	at 	3).
McConico’s 	account 	statement 	reflects 	gross 	deposits 	of 	at 	least
$100 	per 	month 	in 	the 	year 	preceding 	the 	filing 	of 	his 	petition.
Although 	McConico 	depleted 	his 	balance 	shortly 	before 	commencing
this action, his account balance of $7.67 was still sufficient to
pay 	the 	$5.00 	habeas 	filing 	fee 	for 	this 	case. 	Accordingly,
McConico’s 	motion 	to 	proceed 	without 	prepayment 	of 	fees 	(Doc. 	2)
is 	DENIED. 	McConico 	is 	ORDERED 	to 	pay 	the 	$5.00 	filing 	fee 	for
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this habeas action on or before June 16, 2025, which he may do by
remitting to the Clerk of the United States District Court for the
Southern District of Alabama, by June 16, 2025, a money order for
$5.00 made payable to “Christopher Ekman, Clerk.”
McConico is cautioned that failure to fully comply with this
order within the prescribed time, or failure to immediately notify
the 	Court 	in 	writing 	of 	any 	change 	in 	his 	address, 	will 	subject
this 	action 	to 	dismissal 	for 	failure 	to 	prosecute 	and 	failure 	to
obey the Court’s order.
The 	Clerk 	is 	DIRECTED 	to 	mail 	to 	McConico 	a 	copy 	of 	his
original 	petition 	(Doc. 	1) 	for 	his 	reference, 	along 	with 	this
Court’s standard § 2241 habeas petition form for his use.
DONE this 15th day of May, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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