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McCarthy v. Ebbert

United States District Court, M.D. Pennsylvania

March 9, 2015

JOHN McCARTHY, Petitioner
v.
WARDEN EBBERT, Respondent

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Introduction

John McCarthy is a criminal recidivist, a violent armed felon, a persistent violator of prison rules who often combines rules violations with threatened and actual violence, and a prodigious, if prodigiously unsuccessful, federal habeas corpus petitioner. In this, his latest federal habeas corpus petition, McCarthy brings an array of claims that are identical to those previously presented by this inmate, protesting the calculation of his federal sentence and the outcome of various past disciplinary proceedings. None of these claims, however, merits the extraordinary remedy of federal habeas corpus relief. Rather, they constitute an abuse of this writ. Accordingly, for the reasons set forth below, it is recommended that this petition for writ of habeas corpus be denied.

II. Statement of Facts and of the Case

A. John McCarthy's Background[1]

McCarthy is currently serving a 235-month sentence imposed in the District of Connecticut for Possession of a Firearm By a Previously Convicted Felon in violation of 18 U.S.C. §§ 922(g) and 924(e). (Doc. 9.) Presently, McCarthy is scheduled for release from this federal sentence on January 23, 2017. At the time that this federal sentence was imposed, McCarthy was also serving state sentences. Indeed, McCarthy has a lengthy criminal history marked by repeated acts of violence. McCarthy began his criminal career at age 16 and has amassed prior convictions for burglary, larceny, drug possession, disorderly conduct, breach of peace, robbery, failure to appear, and assault of a correctional officer.

While in federal custody, McCarthy has exhibited unrelenting disciplinary misconduct, misconduct that is frequently marked by violence. McCarthy's disciplinary history includes numerous citations, including the following prison infractions: Possession of a Dangerous Weapon; Assault (8 instances); Threatening Bodily Harm (2 instances); Being Unsanitary (7 instances); Refusing Work and/or Refusing to Obey an Order (14 instances); Insolence (10 instances); Possessing Intoxicants (3 instances); Use of Drugs (2 instances); Refusing to Take an Alcohol Test (2 instances); Disruptive Conduct; Possessing Unauthorized Items; Making Sexual Proposals; Possession of Drugs/Alcohol; and Interfering With Security Devices. (Id., Giddings Decl. Ex. 1 ¶ 9; Worksheet Att. F to Ex. 1.)

Finally, McCarthy is a frequent, yet frequently unsuccessful, petitioner in federal court. See McCarthy v. Warden, USP Leavenworth, 168 F. Appx. 276, 277 (10th Cir. 2006). In fact, McCarthy has filed numerous § 2241 petitions challenging his federal sentence in four different United States District Courts, none of which found in his favor. See McCarthy v. Warden, Civ. No. 2:11-cv-2059, 2012 WL 882618 (W.D. La., Mar. 14, 2012); McCarthy v. Warden, USP Lewisburg, 448 Fed.Appx. 287 (3d Cir. 2011) (affirming the District Court in McCarthy v. Warden, USP Lewisburg, Civ. No. 1:10-cv-1673, 2011 WL 484182 (M.D. Pa., Feb. 7, 2011); McCarthy v. Warden, Civ. No. 1:12-cv-00846, 2013 WL 3943551 (M.D. Pa., July 29, 2013); McCarthy v. Warden, USP Florence, 403 F.Appx. 319 (10th Cir. 2010). Many of McCarthy's prior petitions involve precisely the same issues which McCarthy raises in his current petition; namely, the calculation of McCarthy's sentence and the outcome of prior prison disciplinary proceedings.

B. McCarthy's Current Habeas Corpus Petition

It is against this backdrop that McCarthy advances an array of claims in this, his latest federal habeas corpus petition. In this case, McCarthy belatedly challenges disciplinary decisions imposed against the petitioner many years ago. Specifically, McCarthy challenges the outcome of disciplinary hearings conducted between five and ten years ago, in January 2010, September 2009, December 2006, September 2006, and April 2004. In each instance, McCarthy's petition merely recites without any supporting factual detail that these longstanding disciplinary decisions were procedurally and substantively flawed. Moreover, in each instance McCarthy demands familiar relief, relief that is identical to the relief unsuccessfully sought by McCarthy in many prior petitions: Expungement of his disciplinary record and reconsideration of his past demands that he receive retroactive, concurrent credit for his state and federal sentences. (Doc. 1.)

Further, McCarthy provides no explanation for his failure to raise these disciplinary hearing outcomes in a timely fashion in any of his multiple, prior habeas corpus petitions. Nor does McCarthy explain why this Court should now reconsider his complaints regarding his sentence calculation, complaints that have been repeatedly examined, and rejected, by the courts in the past.

II. Discussion

This petition is subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254 (Rule 4 applies to § 2241 petitions under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979) (explaining that Rule 4 is "applicable to Section 2241 petitions through Rule 1(b)"). Rule 4 provides in pertinent part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

Summary dismissal of this habeas petition, is appropriate here since it is well-settled that, McCarthy's efforts to re-litigate these sentence calculation and prison discipline claims run afoul of the abuse of writ doctrine. When a prisoner has previously had a full opportunity to present a habeas ...


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