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McGrath v. Withers

United States District Court, Sixth Circuit

June 12, 2013

SHANNON WITHERS, Acting Warden, Respondent.


DAVID L. BUNNING, District Judge.

Mark Edward McGrath is an inmate confined in the United States Penitentiary ("USP")-McCreary in Pine Knot, Kentucky. McGrath has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal conviction and sentence. [R. 1] McGrath has also filed a motion seeking an emergency hearing on his claims. [R. 2]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates McGrath's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts McGrath's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Having reviewed the habeas petition, the Court must deny it because McGrath cannot pursue his claims in a habeas corpus proceeding under § 2241.


In 1995, a federal jury in Idaho found Mark Edward McGrath and Stephen Wayne Atcheson guilty of Counts 1-15 of an indictment charging them conspiracy to commit robbery, attempted robbery, extortion, attempted extortion in violation of the Hobbs Act, violating the Travel Act, using a firearm during a crime of violence, possessing an unregistered firearm, and being felons in possession of firearms. United States v. McGrath, No. CR95-15-E-ELJ (D. Idaho 1995). McGrath received a 660-month prison sentence. [R. 161, 164, therein] McGrath appealed but the Court of Appeals for the Ninth Circuit affirmed the convictions and sentences, except for a limited remand to re-sentence McGrath on Counts 11 and 12. United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996) On February 27, 1997 the sentencing court entered an Amended Judgment reducing McGrath's prison term to 480 month. [R. 199, therein] McGrath filed a second notice of appeal, which he voluntarily dismissed. [R. 203, therein]

In December 1996, McGrath filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. [R. 192, therein] In March 1997, the sentencing court granted the United States' motion to dismiss that § 2255 motion without prejudice [R. 204, therein] and on January 13, 1998, McGrath filed a second § 2255 motion. [R. 223, therein] Because the filing of the second § 2255 motion predated the advent of the federal court's electronic online PACER database system, this Court can not electronically access McGrath's second § 2255 motion to ascertain what legal arguments he asserted therein, but the docket sheet reflects that both parties fully briefed their positions and that litigation ensued for over a year. [R. 224-239, therein] On June 25, 1999, the sentencing court denied McGrath's second § 2255 motion, which the Court also cannot electronically access. [R. 241, therein] On appeal, the Ninth Circuit affirmed the denial of the certificate of appealability. [R. 248, therein]

In February 2003, McGrath filed another motion to vacate, as well as a motion and related pleadings asking the sentencing court to consider a second or successive § 2255 motion without requiring him to obtain prior permission from the Ninth Circuit. [R. 249-254 therein] McGrath alleged that his constitutional rights had been violated during his criminal trial because he had received ineffective assistance of counsel during his criminal proceeding and on direct appeal, and that the sentencing court had denied him access to his various legal documents and witnesses, and had improperly refused his requests for continuances. [R. 252, therein]

On March 25, 2003, the sentencing court denied both motions because McGrath had not obtained the Ninth Circuit's permission to file a successive § 2255 motion. [R. 256, 257 therein] McGrath appealed, which the Ninth Circuit subsequently construed as a request to file a successive § 2255 motion and denied. [R. 258, therein] The appellate court determined that McGrath had neither offered newly discovered evidence sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found him guilty nor pointed to a new rule of constitutional law previously unavailable and made retroactively applicable the Supreme Court. [ Id., p. 1]

Undeterred, on January 21, 2005, McGrath filed document entitled "Motion for Extension of Time" in which to file a petition for writ of habeas corpus under 28 U.S.C. § 2241. [R. 259, therein] On May 12, 2005, the sentencing court denied that motion, stating:

Having reviewed the record in this matter the Court again concludes that Mr. McGrath's arguments have been fully and finally determined by this Court and the Ninth Circuit several times. The instant motion does not present a basis upon which the Court can grant the motion either as a motion to reconsider the previous order or as a motion to proceed by way of 28 U.S.C. § 2241. Quite simply, Mr. McGrath's argument have been heard, considered, and decided.

[R. 260, therein]

McGrath then requested a certificate of appealability [R. 261, therein], which the sentencing court denied on February 7, 2006. [R. 263, therein] Discussing McGrath's continued efforts to collaterally challenge his conviction and sentence either through § 2255 or § 2241, the court stated:

Respectfully, the Court finds Petitioner's arguments unpersuasive. This Court and the Ninth Circuit have previously denied Mr. McGrath's requests for a certificate of appealability regarding his successive § 2255 motion. This new attempt to characterize his motion as being pursuant to § 2241, instead of § 2255 is meritless. Additionally, Petitioner does ...

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