McCarthy v. Ebbert

Filing 6

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by John J. McCarthy (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 1/20/16. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. McCARTHY,
Petitioner
vs.
WARDEN EBBERT,
Respondent

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CIVIL NO. 1:CV-15-0399
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court is John McCarthy’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. McCarthy is a federal inmate housed at the United
States Penitentiary in Lewisburg, Pennsylvania. In his Petition, McCarthy alleges that the
(BOP) has erred by refusing to make his federal sentence concurrent to his state
sentence. McCarthy proceeds in forma pauperis.
The Petition has been given preliminary consideration pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States District Courts, made
applicable to § 2241 petitions through Rule 1(b) of the Habeas Rules. See 28 U.S.C. §
2243; see also Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979). For the
reasons that follow the Petition will be summarily dismissed.

II.

Standard of Review
When a prisoner files a successive petition for a writ of habeas corpus, the

abuse-of-the-writ doctrine as set forth in 28 U.S.C. § 2244(a) may bar his claim. Furnari v.
U.S. Parole Comm’n., 531 F.3d 241, 250 (3d Cir. 2008). United States Code Title 28,
Section 2244(a), provides in relevant part as follows:
No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to a judgment of a court of the United States
if it appears that the legality of such detention has been
determined by a judge or court of the United States on a prior
application for writ of habeas corpus, except as provided in
section 2255.
28 U.S.C. § 2244(a). Section 2244(a) is applicable to successive petitions brought
pursuant to 28 U.S.C. § 2241. Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008). “[A]
court may grant controlling weight to a denial of a prior application for habeas corpus when
three criteria are met: (1) the same ground presented in the successive application was
determined adversely to applicant on the previous application; (2) the previous
determination was made on the merits; and (3) ‘the ends of justice’ would not be served by
reaching the merits of the subsequent application.” Furnari, 531 F.3d at 250 (citing
Sanders v. United States, 373 U.S. 1, 9, 373 U.S. 1, 9, 83 S.Ct. 1068, 1074, 10 L.Ed.2d
148 (1963)).

III.

Discussion
In his Petition, McCarthy argues that his “federal judgment should be

amended because at sentencing the judge concurred with state and federal sentencing
concurrency (sic) and did not make the federal sentence consecutive to prospective state
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concurrent time but the Bureau of Prisons failed to agree.” (Doc. 1, ECF p. 6). McCarthy
seeks the court to amend his judgment directing that his federal sentence run concurrent
to his state sentence.
This claim falls within the purview of § 2244(a) because McCarthy (1) has
previously petitioned for a writ of habeas corpus on this claim, and (2) the legality of the
BOP’s treatment of his federal sentence as concurrent to his state sentence has been
previously determined by the United States Court of Appeals for the Tenth Circuit, and
more recently, by the United States Court of Appeals for the Third Circuit. See McCarthy
v. Warden, USP Leavenworth, 168 F. App’x 276 (10th Cir. 2006)(nonprecedential);
McCarthy v. Warden, USP Florence, 403 F. App’x 319 (10th Cir. 2010)(nonprecedential);
McCarthy v. Warden, USP Lewisburg, 448 F. App’x 287 (3d Cir. 2011)(nonprecedential);
McCarthy v. Warden, 544 F. App’x 52 (3d Cir. 2013)(nonprecedential); and McCarthy v.
Warden, USP Lewisburg,

F. App’x

,

, 2015 WL 6522786, at *2 (3d Cir. 2015)

(affirming district court’s dismissal of McCarthy’s sentencing claim as an abuse of the writ).
Accordingly, McCarthy’s current Petition is an abuse of the writ as multiple federal courts
have rendered final judgments on the merits against him concerning the same issue.
McCarthy’s Petition challenging the BOP’s computation of his federal sentence as
consecutive to his state sentence will be dismissed pursuant to 28 U.S.C. § 2244(a).
An appropriate Order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: January 20, 2016

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