McCarthy v. Ebbert
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,
CIVIL NO. 1:CV-15-1399
John J. McCarthy has filed a pro se petition for a writ of habeas corpus under
28 U.S.C. § 2241. McCarthy claims that, in light of the holding in Johnson v. United States,
, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015),1 declaring the residual clause of
the Armed Career Criminal Act (ACCA) unconstitutionally vague, his sentencing
enhancements under the ACCA must be vacated. (ECF No. 1).
The Petition is before the court for preliminary review. See Rules 1(b) and 4
of the rules governing cases under 28 U.S.C. § 2254. Because McCarthy cannot meet the
threshold required for relief under the savings clause of 28 U.S.C. § 2255(e), he may not
proceed under 28 U.S.C. § 2241. His Petition will be dismissed for lack of jurisdiction.
McCarthy’s motion to proceed in forma pauperis will be granted. (ECF No. 4).
We note that in Welch v. United States,
, 136 S.Ct. 1257, 194
L.Ed.2d 387 (2016), the Supreme Court held that Johnson applies retroactively to cases on
Standard of Review
A petition filed under 28 U.S.C. § 2241 is reserved for challenges to actions
taken by prison officials that affect the manner in which the prisoner's sentence is being
carried out, such as computing sentence credits or determining parole eligibility and is filed
in the federal court of the judicial district where the prisoner is incarcerated. Woodall v.
Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (citing Coady v. Vaughn, 251
F.3d 480, 485 (3d Cir. 2001)). “A motion to vacate sentence pursuant to 28 U.S.C. § 2255
is the means to collaterally challenge a federal conviction or sentence,” Massey v. United
States, 581 F.3d 172, 174 (3d Cir. 2009), and must be presented to the court that imposed
the sentence. See 28 U.S.C. § 2255(a) (providing that a defendant “may move the court
which imposed the sentence”).
In exceptional circumstances, the “safety valve” or “savings clause” found in
28 U.S.C. § 2255(e) will permit a prisoner to challenge the validity of his conviction in a
habeas corpus proceeding under § 2241, but only where the remedy afforded by § 2255(a)
“is inadequate or ineffective” to test the legality of his detention. 28 U.S.C. § 2255(e);
Gardner v. Warden Lewisburg USP, 845 F.3d 99 (2017); In re Dorsainvil, 119 F.3d 245,
249-51 (1997). The United States Court of Appeals for the Third Circuit has held that a §
2255 motion is inadequate or ineffective “only where the petitioner demonstrates that some
limitation of scope or procedure would prevent a § 2255 proceeding from affording him a
full hearing and adjudication on his wrongful detention claim.” Cradle v. United States, 290
F.3d 536, 538 (3d Cir. 2002). “Section 2255 is not inadequate or ineffective merely
because the sentencing court does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the
amended § 2255.” Id. at 539.
The Third Circuit has only applied this “safety valve” in the rare situations
where a prisoner has had no prior opportunity to challenge his conviction for actions
deemed to be non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (3d
Cir. 2002) (citing In re Dorsainvil, 119 F.3d at 251). A § 2255 motion is inadequate “when a
petitioner asserts a claim of ‘actual innocence’ on the theory that ‘he is being detained for
conduct that has subsequently been rendered non-criminal by an intervening Supreme
Court decision'. . . but is otherwise barred from challenging the legality of the conviction
under § 2255.” United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (quoting
Dorsainvil, 119 F.3d at 252); see also Gardner, 845 F.3d at 103.
In 1992 McCarthy was indicted in the United States District Court for the
District of Connecticut on federal firearm charges. See McCarthy v. Doe, 146 F.3d 118,
119 (2d Cir. 1998). On January 28, 1994, after the jury convicted him on two counts of
possession of a firearm, McCarthy was sentenced to 235 months’ imprisonment followed
by five years of supervised release. The Second Circuit affirmed McCarthy’s judgment of
conviction and sentence on April 11, 1995. See United States v. McCarthy, 54 F.3d 51 (2d
Cir. 1995). And the Supreme Court denied McCarthy’s petition for certiorari, McCarthy v.
United States, 516 U.S. 880, 116 S.Ct. 214, 133 L.Ed.2d 145 (1995).
McCarthy has previously and unsuccessfully challenged his convictions by
filing a motion to vacate sentence, 28 U.S.C. § 2255, in the United States District Court for
the District of Connecticut. See McCarthy v. United States, No. 92-cr-00070 (D. Conn.
Feb. 4, 1999). On April 4, 2001, the sentencing court denied McCarthy’s motion to vacate.
See McCarthy v. United States, No. 92-cr-00070 (D. Conn. Apr. 4, 2001).
McCarthy has also sought the approval of the Second Circuit on a number of
occasions to file a second or successive § 2255 motion. His most recent attempt is of
significance here. McCarthy v. United States, No. 15-2543 (2d Cir. Mar. 15, 2016) (slip
op.). In addressing the identical claim before us, the Second Circuit stated:
Even assuming that Johnson v. United States, 135 S.Ct. 2551
(2015), announced a new rule of constitutional law made
retroactive by the Supreme Court to cases on collateral review,
Petitioner has not made a prima facie showing that the new rule
would entitle him to any relief.
The record reflects that, even absent his prior assault conviction,
Petitioner’s record reflects convictions for at least three prior
crimes. These three crimes qualify as “violent felonies” within the
meaning of 18 U.S.C. § 924(e)(2)(B)(i) and that portion of Section
924(e)(2)(B)(ii) not invalidated by Johnson, thus authorizing his
enhanced sentence under that statute. Specifically, his robbery
conviction still qualifies as a “violent felony” because it has “as an
element the use, attempted use, or threatened use of physical
force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i),
and the burglary convictions still qualify since they were found in
prior proceedings to be enumerated offenses covered by 18
U.S.C. § 924(e)(2)(B)(ii), a determination unaffected by Johnson.
McCarthy v. United States, No. 15-2543 (2d Cir. Mar. 15, 2016).
Here McCarthy does not allege facts bringing his conviction within the
Dorsainvil exception. He has failed to demonstrate that a successive § 2255 motion would
be inadequate or ineffective. The fact that the Second Circuit Court of Appeals failed to
grant his request to file a successive § 2255 motion based on the identical claim presented
in his Petition does not alter this finding. Cradle, 290 F.3d at 538-39 (“Section 2255 is not
inadequate or ineffective merely because the sentencing court does not grant relief, the
one-year statute of limitations has expired, or the petition is unable to meed the stringent
gatekeeping requirements” for filing a second or successive § 2255 motion). McCarthy,
especially in light of the Second Circuit’s decision, cannot demonstrate that his
circumstances constitute the sort of miscarriage of justice what would justify application of
the safety valve language of § 2255 rather than its gatekeeping requirements. Section
2255 is not “inadequate or ineffective” in this matter.
Further, we find that, although we must dismiss the Petition for lack of
jurisdiction, it is not in the interest of justice to transfer McCarthy’s Petition to the United
States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631 as they have
already denied McCarthy’s request to file a second or successive § 2255 motion based on
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 24, 2017
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