McCarthy v. Ebbert

Filing 5

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/24/17. (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-15-1399
(Judge Caldwell)

----------------------------------------------------------------JOHN J. McCARTHY,
Petitioner
vs.
WARDEN EBBERT
Respondent

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CIVIL NO. 1:CV-15-1786
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court are two petitions for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 filed by John McCarthy, formerly a federal prisoner housed
at the United States Penitentiary in Lewisburg, Pennsylvania. In both cases, McCarthy,
relying on Johnson v. United States,

U.S.

, 135 S.Ct. 2551, 192 L.Ed.2d 5569

(2015), argues his sentence was improperly enhanced under the Armed Career Criminal
Act (ACCA). See McCarthy v. Warden Ebbert, No. 15-CV-1399 (M. D. Pa.) (Caldwell, J.)
and McCarthy v. Warden Ebbert, No. 15-CV-1786 (M.D. Pa.) (Caldwell, J.). As the cases

present identical claims, they will be consolidated pursuant to Fed. R. Civ. P. 42(a) and the
consolidated matter will proceed under McCarthy v. Warden Ebbert, Civ. No. 1:15-1399,
the action filed first.

II.

Discussion
The consolidation of actions involving “a common question of law or fact”

under Federal Rule of Civil Procedure 42(a) is a matter of discretion. Borough of Olyphant
v. PPL Corp., 153 F. App’x 80, 82 (3d Cir. 2005)(nonprecedential) (“A district court has
broad discretion when determining whether consolidation is appropriate.”) Rule 42
provides:
(a) Consolidation. If actions before the court involve a common
question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the
actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
Fed. R. Civ. P. 42(a).
In both Petitions before the court, McCarthy argues his sentence was
improperly enhanced under the ACCA. See McCarthy v. Warden Ebbert, Civ. No. 1:151399 (M. D. Pa.) (Caldwell, J.) and McCarthy v. Warden Ebbert, Civ. No. 1:15-1786 (M.D.
Pa.) (Caldwell, J.). Consequently, since both actions contain common questions of law
and fact, this court will order the consolidation of the two petitions pursuant to Fed. R. Civ.

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P. 42(a), and we will proceed with the consolidated matter under McCarthy’s action filed
first, Civ. No. 1:15-0399.
An appropriate Order follows.

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

Date: April 24, 2017

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