2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-18-2011

John McCarthy v. Warden Lewisburg

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1243

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 11-1243 & 11-1404

___________

JOHN J. MCCARTHY,

Appellant

v.

WARDEN USP LEWISBURG

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:10-cv-01673)

District Judge: Honorable William W. Caldwell

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 14, 2011

Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

(Opinion filed: October 18, 2011)

___________

OPINION

___________

PER CURIAM

Federal prisoner John J. McCarthy, proceeding pro se, has brought two appeals

before this Court. The first challenges a Magistrate Judge’s report recommending that 

McCarthy’s habeas petition filed pursuant to 28 U.S.C. § 2241 be dismissed; the second 
2

challenges the District Court’s order adopting that recommendation. For the reasons that 

follow, we lack appellate jurisdiction over the former appeal, and will affirm the District 

Court’s order at issue in the latter appeal.

I.

In January 1994, the United States District Court for the District of Connecticut

(“the District of Connecticut”) sentenced McCarthy to 235 months’ imprisonment 

following his conviction for two counts of possession of a firearm by a prohibited person. 

At sentencing, McCarthy’s trial counsel informed the court that McCarthy would soon be 

sentenced on state criminal charges that had been pending in Connecticut since 1992, and 

that his sentence for those charges would likely run concurrently with his federal 

sentence. Nonetheless, the District of Connecticut did not specify whether McCarthy’s 

federal sentence would run concurrently with, or consecutively to, that future state 

sentence. In April 1994, McCarthy was sentenced in Connecticut state court to seven 

years’ imprisonment, to run concurrently with his federal sentence. Thereafter, he 

remained in state custody to serve that state sentence.1

In August 1995, McCarthy requested the Bureau of Prisons (“BOP”) to designate, 

nunc pro tunc, the state facility at which he was incarcerated a federal prison, which 

would allow him to serve his state and federal sentences concurrently. The BOP denied 

that request, suggesting that it lacked independent authority (i.e., separate from the 

 

1 McCarthy’s appearances in federal court had been made pursuant to a writ of habeas 

corpus ad prosequendum, as it appears that he had been in state custody since his arrest 
3

sentencing judge) to make such a designation. In June 1998, the United States Court of 

Appeals for the Second Circuit, reviewing the District of Connecticut’s denial of 

McCarthy’s petition challenging the BOP’s decision, held that the BOP did indeed have 

authority to grant McCarthy’s request for nunc pro tunc designation. See McCarthy v. 

Doe, 146 F.3d 118, 123 (2d Cir. 1998). Accordingly, the Second Circuit remanded the 

matter to the District of Connecticut with instructions to remand to the BOP for 

consideration of the merits of McCarthy’s request. See id. On remand, the BOP denied 

McCarthy’s request, highlighting his “extensive” criminal record and the federal 

sentencing judge’s silence as to whether his federal and state sentences would run 

concurrently.

McCarthy was released from state custody on February 5, 1999, and his federal 

sentence commenced at that time. In 2004, while incarcerated at the United States 

Penitentiary (“USP”) in Leavenworth, Kansas, he filed a habeas petition pursuant to 28 

U.S.C. § 2241 in the United States District Court for the District of Kansas (“the District 

of Kansas”), claiming that the BOP was required to credit his federal sentence for the 

time he had spent in state custody. The District of Kansas dismissed the petition, and the 

United States Court of Appeals for the Tenth Circuit affirmed on appeal, concluding that, 

“in light of Mr. McCarthy’s criminal history and prior convictions, the [BOP] did not 

abuse its discretion when it declined to designate a state institution for the service of his 

 

on state charges in 1992.
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federal sentence.” See McCarthy v. Warden, USP Leavenworth, 168 F. App’x 276, 277 

(10thCir. 2006).

In 2007, at which time McCarthy was incarcerated at USP Lewisburg in

Pennsylvania, he filed a § 2241 petition in the United States District Court for the Middle 

District of Pennsylvania (“the District Court”). Attached to his petition were: (1) a 

recent request he had made to the BOP to credit his federal sentence for the time he had 

spent in state custody; and (2) a response from a BOP supervisory inmate systems 

specialist, stating that this request would be forwarded to the BOP’s Designation and 

Sentence Computation Center for review. In August 2007, the District Court dismissed 

the petition as unexhausted. In doing so, the court noted that “any subsequent § 2241 

petition claiming that the BOP abused its discretion by denying McCarthy’s request for 

nunc pro tunc designation may be subject to consideration for abuse of the writ of habeas 

corpus.” McCarthy v. Warden USP Lewisburg, No. 1:07-cv-1052, 2007 U.S. Dist. 

LEXIS 62882, at *4-5 n.1 (M.D. Pa. Aug. 27, 2007). McCarthy did not appeal from that 

judgment.

In May 2008, McCarthy, then incarcerated at USP Florence in Colorado, filed yet 

another § 2241 petition, this time in the United States District Court for the District of 

Colorado (“the District of Colorado”). In September 2008, the court dismissed the 

petition as successive. On appeal, the Tenth Circuit reversed and remanded, concluding 

that 
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[i]n light of the unsettled question of whether appellate court 

preauthorization is required before a prisoner may file a 

successive writ under § 2241 or whether district courts may 

continue to address this issue as they did pre-AEDPA, it 

seems problematic for the district court to dismiss 

[McCarthy’s] writ sua sponte based on the pre-AEDPA 

version of § 2244(a).

McCarthy v. Warden USP Florence, 338 F. App’x 739, 742 (10th Cir. 2009).

On remand, the District of Colorado denied McCarthy’s habeas petition on the 

merits, concluding that the BOP had not abused its discretion in refusing to grant nunc 

pro tunc designation. In November 2010, the Tenth Circuit, noting that it “ha[d] already 

once affirmed the BOP’s denial of a request Mr. McCarthy previously made for such a 

designation,” upheld the District of Colorado’s judgment. See McCarthy v. Warden, 

USP Florence, 403 F. App’x 319, 320-21 (10th Cir. 2010).

Meanwhile, in August 2010, McCarthy, who had been transferred back to USP 

Lewisburg, filed the instant § 2241 petition in the District Court, claiming that the BOP 

had “unlawfully transformed his concurrent state term . . . in to [sic] a consecutive state 

term.” After the BOP had filed a response, McCarthy filed a traverse, clarifying that he 

was challenging the BOP’s failure to treat his state and federal sentences as concurrent by 

designating, nunc pro tunc, a state facility as a federal prison. In light of this 

clarification, the Magistrate Judge assigned to the case issued an order directing the BOP 

to file a supplemental response addressing whether this latest habeas petition was barred 

by 28 U.S.C. § 2244(a). That order permitted McCarthy to file a supplemental reply.
6

In its supplemental response, the BOP argued that McCarthy’s petition was indeed 

barred by § 2244(a). McCarthy, meanwhile, contended that the BOP had waived that 

argument by not including it in its original response, and that the Magistrate Judge could 

not raise the issue sua sponte. He also claimed that his petition was not barred because he

was challenging a “new decision” from the BOP.

On December 8, 2010, the Magistrate Judge issued a report recommending that the 

District Court dismiss McCarthy’s habeas petition, concluding that the petition was an 

abuse of the writ and thus barred by § 2244(a). McCarthy subsequently filed a notice of 

appeal challenging that recommendation. That appeal was docketed at C.A. No. 11-

1243, and was listed by the Clerk of this Court for possible dismissal due to a 

jurisdictional defect. Meanwhile, on February 7, 2011, the District Court adopted the 

Magistrate Judge’s recommendation and dismissed the petition. McCarthy then filed a 

second notice of appeal, this time challenging the District Court’s order. This latter 

appeal was docketed at C.A. No. 11-1404, and the two appeals have since been 

consolidated.

II.

Pursuant to 28 U.S.C. § 1291, we have jurisdiction over appeals from “final 

decisions” of the district courts. Because the Magistrate Judge’s report is merely a 

recommendation, not a final decision under § 1291, we lack jurisdiction over the appeal 

at C.A. No. 11-1234. See Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 

250 (3d Cir. 1998); Siers v. Morrash, 700 F.2d 113, 115 (3d Cir. 1983). Conversely, 
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because the District Court’s February 7, 2011 order is a final decision under § 1291, we 

have jurisdiction over the appeal at C.A. No. 11-1404. In reviewing that order, “[w]e 

exercise plenary review over the District Court’s legal conclusions and apply a clearly 

erroneous standard to its findings of fact.” See O’Donald v. Johns, 402 F.3d 172, 173 n.1 

(3d Cir. 2005) (per curiam).

Having considered the parties’ arguments, and for the reasons set forth in the 

Magistrate Judge’s cogent report, which was adopted by the District Court, we agree with 

the court’s dismissal of McCarthy’s latest habeas petition as an abuse of the writ. 

Although it does not affect our decision here, we write further to address a recent 

development highlighted by McCarthy in his briefing. Attached to his “Addendum 

Brief” is a letter addressed to him, dated June 29, 2011, from the Honorable Peter C. 

Dorsey of the District of Connecticut.2 The letter states as follows:

I have received your letter dated May 14, 2011, in which you 

request that I make your federal sentence run concurrently 

with your state sentence. I have written a letter to the Warden 

of USP Lewisburg recommending that your federal sentence 

run concurrently with your state sentence and that both 

sentences be served in one penal institution.

(Attach. to Addendum Br.) The BOP did not address this letter in its response brief; 

however, we trust that, if this letter is indeed from Judge Dorsey, the BOP, to the extent it 

 

2 Although Judge Dorsey was not McCarthy’s sentencing judge, McCarthy’s criminal 

case was reassigned to Judge Dorsey in or about January 2000 (at which time McCarthy 

was pursuing collateral relief). 
8

has not already done so, will give his recommendation due consideration and render a 

decision promptly.

In light of the above, we will dismiss the appeal at C.A. No. 11-1243 for lack of 

appellate jurisdiction, and will affirm the District Court’s order at issue in C.A. No. 11-

1404. McCarthy’s request for appointment of counsel is denied.