John McCarthy v. Warden Lewisburg USP , 629 F. App'x 157 ( 2015 )


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  • ALD-021                                                         NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 15-2339
    ___________
    JOHN J. MCCARTHY,
    Appellant
    v.
    WARDEN LEWISBURG USP
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civ. No. 1:14-cv-01905)
    District Judge: Honorable William W. Caldwell
    ____________________________________
    Submitted for Possible Dismissal Due to a Jurisdictional Defect and
    Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    October 22, 2015
    Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges
    (Opinion filed: October 29, 2015)
    _________
    OPINION*
    _________
    PER CURIAM
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    John J. McCarthy appeals pro se from the District Court’s order denying his
    petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Because this appeal
    presents no substantial question, we will summarily affirm the District Court’s order.
    I.
    McCarthy is a federal prisoner serving a 235-month sentence imposed by the
    United States District Court for the District of Connecticut for possession of a firearm by
    a previously convicted felon. This appeal concerns his most recent 28 U.S.C. § 2241
    habeas petition, in which he alleged that: (1) his constitutional rights were violated when
    he was placed in the Special Management Unit (“SMU”); (2) his federal sentence was
    erroneously calculated; and (3) his constitutional rights were violated during a
    disciplinary proceeding that resulted in the loss of good conduct time. The Magistrate
    Judge issued a report recommending that his first claim be dismissed as not cognizable
    under § 2241, that the second claim be denied as an abuse of the writ, and that the third
    claim be denied as unexhausted. On March 17, 2015, after considering McCarthy’s
    objections, the District Court issued an order adopting the Magistrate Judge’s report and
    denying McCarthy’s § 2241 petition.
    McCarthy now appeals.1
    1
    McCarthy’s May 20, 2015 notice of appeal ordinarily would be untimely. See Fed. R.
    App. P. 4(a)(1)(B). In this case, however, the District Court’s March 17, 2015 order does
    not comply with the “separate document” requirement of Rule 58 of the Federal Rules of
    Civil Procedure because the order sets forth the history of the case and addresses
    McCarthy’s objections to the Magistrate Judge’s report and recommendation. See
    2
    II.
    A certificate of appealability is not required to appeal from the denial of a § 2241
    petition, see Burkey v. Marberry, 
    556 F.3d 142
    , 146 (3d Cir. 2009), and we have
    jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District
    Court’s legal conclusions, but we review factual findings for clear error. Vega v. United
    States, 
    493 F.3d 310
    , 314 (3d Cir. 2007). We find no error in the District Court’s denial
    of McCarthy’s § 2241 petition, and summarily affirm the District Court’s order. See 3d
    Cir. I.O.P. 10.6.
    First, the District Court properly determined that § 2241 is not the proper vehicle
    for McCarthy to challenge his transfer to the SMU, which occurred due to his history of
    disciplinary infractions. For such a claim to be cognizable under § 2241, the transfer
    would have to “concern the execution of [McCarthy’s] sentence,” which requires that the
    Federal Bureau of Prison’s (“BOP”) “conduct was somehow inconsistent with a
    command or recommendation in the sentencing judgment,” or that the transfer
    “necessarily result[ed] in a change to the duration of his sentence.” Cardona v. Bledsoe,
    
    681 F.3d 533
    , 537 (3d Cir. 2012); see also Leamer v. Fauver, 
    288 F.3d 532
    , 542-44 (3d
    Cir. 2002) (holding that civil rights action is appropriate to challenge conditions of
    confinement when a finding in plaintiff’s favor would not alter the sentence or undue the
    LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 
    503 F.3d 217
    , 223-24 (3d Cir. 2007).
    Thus, McCarthy’s appeal is timely and will not be dismissed for lack of jurisdiction. See
    Fed. R. App. P. 4(a)(7)(A)(ii).
    3
    conviction). McCarthy’s petition alleged neither that transfer affected the duration of his
    sentence nor that it was inconsistent with the sentencing judgment. Accordingly, the
    District Court properly dismissed this claim.
    Second, the District Court properly denied McCarthy’s challenge to the
    calculation of his sentence as an abuse of the writ. In 1994, McCarthy was sentenced for
    convictions in both federal and state court in Connecticut. He is currently serving his
    federal sentence, which he began after completing his state sentence. The Connecticut
    federal court did not specify whether his sentences should run concurrently or
    consecutively. The BOP has treated them as consecutive and has denied McCarthy’s
    request for a favorable concurrent retroactive designation under 18 U.S.C. § 3621(b).
    Since 1995, McCarthy has filed numerous § 2241 petitions in various courts arguing that
    the BOP has erred by refusing to treat his sentence as concurrent. See, e.g., McCarthy v.
    Warden USP Lewisburg, 448 F. App’x 287, 288-89 (3d Cir. 2011) (summarizing
    McCarthy’s previous litigation of this issue); McCarthy v. Warden, 544 F. App’x 52, 53
    (3d Cir. 2013) (same).
    As he has argued previously, McCarthy states that his “concurrent state time
    should be credited to [his] recommended concurrent federal time as presentence or
    precustody confinement.”2 The BOP asserted that this claim should be denied as an
    2
    McCarthy also asserts that the BOP abused its discretion in denying his request for
    concurrent retroactive designation because it did not consider the “positive programs”
    that he has completed while in prison. We addressed and rejected that argument in
    4
    abuse of the writ because the legality of McCarthy’s detention had already been
    determined in his previous habeas petitions. The District Court agreed, explaining that
    McCarthy has “previously, repeatedly and unsuccessfully challenged” his sentence
    calculation by the BOP. And because the Government met its burden to plead abuse of
    the writ with “clarity and particularity,” McCarthy had to show that the “ends of justice
    would be served by the court entertaining his petition, a showing that the petitioner
    satisfies by supplementing his claim by making a colorable showing of factual
    innocence.” See Furnari v. U.S. Parole Comm’n, 
    531 F.3d 241
    , 251 (3d Cir. 2008)
    (citation and internal quotation marks omitted). This he did not do. Accordingly, the
    District Court properly determined that McCarthy’s sentencing claim was an abuse of the
    writ.
    Finally, we agree with the District Court that McCarthy failed to exhaust his claim
    concerning his 2014 disciplinary proceedings, which resulted in the loss of 40 days of
    good conduct time. Section 2241 is the appropriate vehicle for constitutional claims
    when a prison disciplinary proceedings results in the loss of good conduct time. See
    Queen v. Miner, 
    530 F.3d 253
    , 254 n.2 (3d Cir. 2008). Federal prisoners have a liberty
    interest in statutory good time credits. Wolff v. McDonnell, 
    418 U.S. 539
    , 557-58
    (1974). Thus, due process protections are required “[w]here a prison disciplinary hearing
    may result in the loss of good time credits.” Superintendent v. Hill, 
    472 U.S. 445
    , 454
    McCarthy’s 2013 appeal from the denial of a previous § 2241 petition, and we decline to
    address it again. See McCarthy, 544 F. App’x at 55.
    5
    (1985) (citing 
    Wolff, 418 U.S. at 563-67
    ). McCarthy’s claim that his disciplinary
    proceeding did not include the required procedures is, however, barred from judicial
    review because it is procedurally defaulted.
    Federal prisoners are ordinarily required to exhaust administrative remedies before
    filing a § 2241 petition. Moscato v. Fed. Bureau of Prisons, 
    98 F.3d 757
    , 760 (3d Cir.
    1996). Exhaustion is favored because:
    (1) judicial review may be facilitated by allowing the
    appropriate agency to develop a factual record and apply its
    expertise; (2) judicial time may be conserved because the
    agency might grant the relief sought, and (3) administrative
    autonomy requires that an agency be given an opportunity to
    correct its own errors.
    See Bradshaw v. Carlson, 
    682 F.2d 1050
    , 1052 (3d Cir. 1981). McCarthy, in his traverse
    filed with the District Court, conceded that he did not exhaust administrative remedies.
    And despite his arguments to the contrary, we see no reason why exhaustion would not
    have achieved the above-referenced goals such that we should excuse this requirement
    here. See 
    id. Because McCarthy
    cannot now complete the administrative remedy process, he
    has procedurally defaulted this claim and must demonstrate cause and prejudice to secure
    judicial review. See 
    Moscato, 98 F.3d at 761-62
    . McCarthy’s assertion that he was
    unable to file his administrative remedy because the prison staff refused to provide him
    with the necessary forms is not sufficient to excuse his failure to exhaust. The
    documentary evidence provided by the BOP shows that McCarthy was advised of his
    6
    right to appeal the disciplinary decision and was given a copy of the disciplinary report.
    The BOP conceded that the delivery of the Disciplinary Hearing Office’s packet was
    delayed but stated that the delay did not hinder McCarthy’s ability to appeal, because he
    was advised that he could appeal within 20 days of receiving the packet. McCarthy did
    not, however, file an appeal and the untimely delivery of the packet did not foreclose
    McCarthy’s use of the administrative review process. Accordingly, as the District Court
    determined, this claim is barred. See 28 C.F.R. § 542.14(b) (setting forth procedures for
    filing administrative appeals).
    For the foregoing reasons, we will summarily affirm. See 3d Cir. I.O.P. 10.6.
    7