2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-2011

John McCarthy v. Warden Lewisburg

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1120

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DLD-140 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1120

___________

JOHN J. MCCARTHY,

Appellant

v.

WARDEN, USP LEWISBURG

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 10-cv-02216)

District Judge: Honorable William W. Caldwell

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

March 17, 2010

Before: BARRY, FISHER and ROTH, Circuit Judges

(Opinion filed: July 7, 2011)

_________

OPINION

_________

PER CURIAM

John J. McCarthy is a federal prisoner serving a sentence imposed by the United 

States District Court for the District of Connecticut. He claims that he was constructively 

denied counsel at two critical stages in that court—his competency hearing and his 
2

waiver of counsel hearing. The proceeding at issue here represents at least his fourth 

attempt to challenge his conviction on that basis. The District Court rejected that attempt, 

and we will summarily affirm.

McCarthy originally raised his denial of counsel claim under 28 U.S.C. § 2255 in 

the District of Connecticut. United States v. McCarthy, D. Conn. Crim. No. 92-cr-00070. 

In 2007, while his Connecticut motion was pending, he asserted the same claim in a 

habeas petition under 28 U.S.C. § 2241 in the United States District Court for the Middle 

District of Pennsylvania (where he was then incarcerated). He argued that he was 

entitled to proceed under § 2241 because of a purported delay by the Connecticut court in 

ruling on his claim. The District Court denied the petition, and we affirmed. See

McCarthy v. Dir. of Fed. Bureau of Prisons, 245 F. App’x 118 (3d Cir. 2007). In 

particular, we concluded that McCarthy was required to assert his claim under § 2255 in 

the sentencing court and that he could not proceed under § 2241 because the alleged 

delay did not make the § 2255 remedy “‘inadequate or ineffective.’” Id. at 120 (citing 

Okereke v. United States

The Connecticut court ultimately denied McCarthy’s § 2255 motion. It does not 

appear to have ruled on his denial of counsel claim, but it later granted a certificate of 

appealability on that issue. 

, 307 F.3d 117, 120 (3d Cir. 2002)).

See United States v. McCarthy, D. Conn. Crim. No. 92-cr00070, Docket No. 423 (June 5, 2009 Order). McCarthy appealed. The Second Circuit 

Court of Appeals, after specifically noting his denial of counsel claim, dismissed his 

appeal because it “lacks an arguable basis in law or fact.” McCarthy v. United States, 2d 
3

Cir. No. 09-1114 (Nov. 18, 2009 Order). The United States Supreme Court denied 

certiorari. McCarthy v. United States

Undeterred, McCarthy filed what he captioned as a petition for the writs of habeas 

corpus, coram nobis and audita querela in the United States District Court for the District 

of Colorado, where he had been transferred. He again asserted his underlying denial of 

counsel claim and argued that he could proceed under § 2241 and the All Writs Act 

because the Connecticut court did not rule on his claim. The Colorado court denied the 

petition, noting both that McCarthy’s claim must be brought under § 2255 and that the 

Second Circuit Court of Appeals already had addressed it. 

, U.S. S. Ct. No. 09-8453 (Feb. 22, 2010 Order).

See McCarthy v. Warden, No. 

10-1533, 2010 WL 2733665, at *2 (D. Colo. July 9, 2010). The Tenth Circuit Court of 

Appeals agreed. See McCarthy v. Warden, USP Florence

McCarthy has since been transferred back to the Middle District of Pennsylvania, 

which brings us finally to the petition at issue here. McCarthy filed in the District Court 

a petition attaching and seeking a ruling on the very same petition he filed in Colorado (it 

even bears the District of Colorado caption). A Magistrate Judge recommended 

dismissing the petition because his claim must be brought under § 2255 and the Second 

Circuit Court of Appeals already has addressed it. The Magistrate Judge further 

explained why McCarthy could not avoid that result by invoking the writs of coram 

nobis, 

, No. 10-1319, 2010 WL 

4739526, at *1 (10th Cir. Nov. 23, 2010). 

see United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000), or audita 

querela, see Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009). The District 
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Court agreed and dismissed the petition by order entered January 7, 2011.

McCarthy appeals. He does not require a certificate of appealability to do so, and 

we have jurisdiction under 28 U.S.C. § 1291. See Burkey v. Marberry, 556 F.3d 142, 

146 (3d Cir. 2009); Baptiste, 223 F.3d at 189 n.1. To the extent that McCarthy’s petition 

can be construed as a habeas petition under § 2241, we will not revisit our ruling that he 

must pursue his claim under § 2255, which he has done. See Queen v. Miner, 530 F.3d 

253, 255 (3d Cir. 2008). As for his reliance on extraordinary writs, it should go without 

saying that his remedy for any perceived error in the Connecticut court’s ruling was his 

appeals to the Second Circuit Court of Appeals and the United States Supreme Court. 

The fact that those appeals proved unsuccessful does mean that there is a gap in the 

remedy provided by § 2255 that resort to these writs is necessary to fill. See Massey

Accordingly, we will affirm the judgment of the District Court. We caution 

McCarthy that we may consider imposing an anti-filing injunction if he persists in raising 

duplicative claims in this Court, as the Second Circuit Court of Appeals long ago found it 

necessary to do. 

, 581 

F.3d at 174.

See McCarthy v. Ayers, 2d Cir. No. 96-2955 (Sept. 16, 1997 Order); see 

also McCarthy v. Meachum, No. 94-0238, 1996 WL 905938, at *2 (D. Conn. Nov. 15, 

1996) (surveying McCarthy’s conduct during the 136 actions he had filed by that point).