McCarthy v. Ebbert

Filing 10

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 5/17/16. (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-15-0447
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se petitioner, John J. McCarthy, an inmate at USP_lewsiburg,

Pennsylvania, filed this 28 U.S.C. § 2241 petition alleging that Connecticut state
authorities violated his plea agreement on the relevant state conviction by failing to run his
state sentence concurrently with his federal sentence and that the Bureau of Prisons
(BOP) refused to run his state and federal time concurrently. (Doc. 1, Pet.). Respondent
argues the Petition should be dismissed under the abuse-of-the-writ doctrine.
Alternatively, Respondent asserts the BOP did not abuse its discretion in denying
McCarthy’s request for the retroactive designation of the facility where he served his
Connecticut sentence as his place of federal confinement. (Doc. 8, Response).
Because a successive § 2241 petition raising the same legal issue
adjudicated in a prior filing is an abuse of the writ, McCarthy’s petition will be dismissed
pursuant to 28 U.S.C. § 2244(a). We also lack jurisdiction over the claim involving the
running of the state sentence.

II.

Standard of Review
A petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the

proper means for challenging the execution of a sentence. Cardona v. Bledsoe, 681 F.3d
533, 536 (3d Cir. 2012); see also Setser v. United States,

U.S.

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, 132 S.Ct.

1463, 1473, 182 L.Ed.2d 455 (2012) (“Setser is free to urge the Bureau to credit his time
served in state court based on the District Court’s judgment that the federal sentence run
concurrently with the state sentence for the new drug charges. If the Bureau initially
declines to do so, he may raise his claim through the Bureau’s Administrative Remedy
Program. See 28 CFR § 542 et seq. (2011). And if that does not work, he may seek a
writ of habeas corpus. See 28 U.S.C. § 2241.”) As petitioner is challenging the
computation of his federal sentence, this matter is properly before this Court as a § 2241
habeas action.
When a prisoner files a successive petition for habeas corpus relief, the
abuse-of-the-writ doctrine may bar his claim. Furnari v. U.S. Parole Comm'n, 531 F.3d
241, 250 (3d Cir. 2008). The abuse of the writ doctrine is set forth in part in 28 U.S.C. §
2244(a):
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 a writ of habeas corpus, except as provided in
section 2255.

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28 U.S.C. § 2244(a). Section 2244(a) is applicable to successive petitions brought under
28 U.S.C. § 2241. “[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 the 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, 83 S.Ct. 1068,
1074, 10 L.Ed.2d 148 (1963)).

III.

Background
On April 30, 2012, McCarthy filed a habeas corpus petition in this court

challenging the BOP denial of his request for a retroactive nunc pro tunc designation in
accordance with 18 U.S.C. § 3621(b) that would have resulted in his receiving credit on his
federal sentence for the time he spent in state custody. After reviewing the merits of his
claim, we determined that the BOP had not abused its discretion in refusing to
retroactively designate the state prison as the place of service of McCarthy’s federal
sentence. McCarthy v. Warden, Civil No. 1:CV-12-0846, 2013 WL 3943551 (M.D. Pa. Jul.
29, 2013). On November 1, 2013, the Third Circuit affirmed our decision. McCarthy v.
Warden, 544 F. App’x 52 (3d Cir. 2013)(nonprecedential). In so doing, the Third Circuit
specifically held that “the BOP did not abuse its discretion because the record reflects its

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meaningful consideration of Judge Dorsey’s recommendation and the factors under §
3621(b).” Id., 544 F. App’x at 54.
More recently, McCarthy filed a similarly based § 2241 habeas petition
challenging the BOP’s failure to run his state and federal sentences concurrently. That
petition was summarily dismissed pursuant to 28 U.S.C. § 2244(a) as an abuse of the writ.
McCarthy v. Warden Ebbert, 1:15-CV-0399 (M.D. Pa. Jan. 20, 1016) (Caldwell, J.).
McCarthy did not appeal our dispositive order.

IV.

Discussion
McCarthy’s instant § 2241 petition raises the identical issue previously

decided on the merits by this court, and affirmed by the Third Circuit. A successive § 2241
petition raising the same legal issue adjudicated in a prior filing is an abuse of the writ
under 28 U.S.C. § 2244(a). Accordingly, McCarthy’s Petition challenging the BOP’s failure
to run his federal sentence concurrently with his state sentence will be dismissed pursuant
to 28 U.S.C. § 2244(a).
We add that we lack jurisdiction over any claim challenging his Connecticut
conviction on the ground that state authorities violated his plea agreement by failing to run
his state sentence concurrently with his federal sentence. At the time he filed his present
habeas petition, McCarthy’s Connecticut sentence had long expired; specifically, it had
expired on February 5, 1999. Since he was no longer in custody pursuant to that
conviction, this court lacks jurisdiction over any challenge to any aspect of his Connecticut

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sentence. Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926 (, 104 L.Ed.2d 540
(1989).
An appropriate Order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: May 17, 2016

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