United States District Court, M.D. Pennsylvania
JOHN J. McCARTHY, Petitioner
WARDEN EBBERT, Respondent
William W. Caldwell United States District Judge
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, __
U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015),
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).
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).
Standard of Review
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”).
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.
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.
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).
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).
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 ...