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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KENNETH E. MILLS,

Plaintiff,

vs. Case No. 4:10cv473-MP/WCS

STATE OF FLORIDA, 

BILL McCOLLUM,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, filed a civil rights

complaint under 42 U.S.C. § 1983. Doc. 1. As Plaintiff has now paid the assessed

initial partial filing fee, docs. 8-9, the complaint has been reviewed as is required by 28

U.S.C. § 1915A. 

Plaintiff challenges the constitutionality of two Florida statutes, which concern the

crime of sexual battery. Doc. 1. Plaintiff asserts that application of the two statues by

Florida courts has resulted in a double standard that violates his due process and equal

protection rights. Id. Plaintiff contends that the crime of "sexual battery" is considered a

"non–capital felony" for purposes of charging the offense, and then reclassified as a

"capital felony" for purposes of sentencing. Doc. 1, p. 4. Plaintiff argues that the
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Fourteenth Amendment is violated when Sexual Battery is charge and the offense tried

as a "noncapital felony" but then the crime is sentenced as a capital felony. Id., at 5-6. 

Plaintiff contends this is applying a "double standard." Id., at 6. 

As relief, Plaintiff asserts that if this Court were to find that Sexual Battery as

prescribed in FLA. STAT. § 794.011(2) is a "noncapital felony," then it must be declared a

life felony as well rather than a capital felony. Id., at 7. Accordingly, "Plaintiff would be

entitled to be resentenced to a guideline sentence in effect on the date of the

commission" of Plaintiff's offense in 1990. Doc. 1, p. 7; See EX. 1. On the other hand,

Plaintiff contends if this Court were to find that Sexual Battery is a "capital felony, then

the court must declare also that the judgment of conviction in this case [is] null and void"

because Plaintiff was not charged by a grand jury indictment but by a felony

Information. Id., at 7-8.

There are "two broad categories of prisoner petitions: (1) those challenging the

fact or duration of confinement itself; and (2) those challenging the conditions of

confinement." Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973); see also Hill v. McDonough, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (holding

that challenge to lethal injection procedures may be brought in § 1983 action). Habeas

corpus is the exclusive remedy for a prisoner who challenges "the fact or duration of his

confinement and seeks immediate or speedier release . . . ." Heck v. Humphrey, 512

U.S. 477, 481, 114 S.Ct. 2364, 2369 (1994). Where a litigant is not challenging the fact

or duration of confinement, but rather the conditions of that confinement, then civil rights

is the proper avenue of relief. See Porter v. Nussle, 122 S.Ct. 983, 989, 122 S.Ct. 983,

990, 152 L.Ed.2d 12 (2002), citing McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737,

Case No. 4:10cv473-MP/WCS
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114 L.Ed.2d 194 (1991) and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36

L.Ed.2d 439 (1973). A prisoner may not seek to reduce a period of confinement

through a civil rights action. Preiser, 411 U.S. at 500, 93 S. Ct. at 1841; Heck, 114 S.

Ct. at 2372. 

Thus, the line between a civil rights claim and habeas claim is based on the

effect a claim has on an inmate's conviction or sentence. Hill v. McDonough, 126 S.Ct.

2096 (2006). "Simply put, if the relief sought by the inmate would either invalidate his

conviction or sentence or change the nature or duration of his sentence, the inmate's

claim must be raised in a § 2254 habeas petition, not a § 1983 civil rights action." 

Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). 

Plaintiff clearly seeks to invalidate his conviction in this civil rights case, or be resentenced. This claim must be brought in a habeas petition1

 and this § 1983 case must

be dismissed.

1

 As Plaintiff challenges the judgment entered by the Circuit Court in Pinellas

County, a § 2254 petition for writ of habeas corpus would more appropriately be filed in

the Middle District of Florida, See 28 U.S.C. § 2241(d); Parker v. Singletary, 974 F.2d

1562, 1581-82 and nn. 114 and 118 (11th Cir. 1992) (discussing transfer "in furtherance

of justice" under § 2241(d), citations omitted). Indeed, this Plaintiff already sought §

2254 relief, unsuccessfully, in the Middle District, case numbers 8:02cv133-JSM (docs.

10 and 12, dismissing petition challenging sexual battery convictions out of Pinellas

County as untimely); and 8:02cv154-SCB (doc. 5, dismissing petition as challenging the

same judgment and conviction challenged in 8:02cv133-JSM). This § 1983 complaint

appears to challenge the same conviction raised in the § 2254 signed on January 16,

2002 (doc. 1 in 8:02cv133-JSM), so Plaintiff would not only face the one year time limit

of § 2244(d) in filing a § 2254 petition, he would first have to obtain authorization to file a

second or successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A); § 2254 Rule 9

("[b]efore presenting a second or successive petition, the petitioner must obtain an order

from the appropriate court of appeals authorizing the district court to consider the

petition as required by 28 U.S.C. § 2244(b)(3) and (4)."). Plaintiff cannot avoid these

procedural problems by means of a § 1983 suit.

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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED for failure to state a claim upon which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2), that all pending motions be DENIED, and

that the order adopting this report and recommendation direct the Clerk of Court to note

on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida, on December 15, 2010.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv473-MP/WCS