United States v. McCarey, Criminal Case No. 07-338 (EGS)
| Decision Date | 02 January 2019 |
| Docket Number | Criminal Case No. 07-338 (EGS) |
| Parties | UNITED STATES OF AMERICA, v. COLLEEN MCCAREY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Pending before the Court is defendant Colleen McCarey's ("Ms. McCarey") pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 ("2255 motion" or "motion"). Ms. McCarey argues that this Court denied her due process by accepting her motion to withdraw her guilty plea and enter a not guilty by reason of insanity defense without sua sponte ordering a competency study pursuant to 18 U.S.C. § 4241. Ms. McCarey requests that the Court immediately and unconditionally release her from confinement.
After careful consideration of Ms. McCarey's motion, the government's response, Ms. McCarey's replies and letters thereto, the entire record herein, and the applicable law, the Court DENIES Ms. McCarey's motion.
Ms. McCarey was arrested and charged with one count of threats to inflict bodily harm upon a former President and/or a member of a former President's immediate family in violation of 18 U.S.C. § 879 on November 29, 2007. See Compl., ECF No. 1; Information, ECF No. 4 (Dec. 6, 2007). On December 7, 2007, Ms. McCarey pled guilty to the one-count information. See Plea, ECF No. 9. This Court accepted her guilty plea on January 9, 2008. See Order, ECF No. 13. On April 17, 2008, Ms. McCarey filed an unopposed motion to withdraw her guilty plea, see ECF No. 16; she filed a notice of her insanity defense the same day, see ECF Nos. 17. The next day, the Court granted the government's motion to commit Ms. McCarey to undergo a psychological examination to ascertain whether she was insane at the time of the offense pursuant to 18 U.S.C. § 4242(a) and 18 U.S.C. § 4247(b). See Order, ECF No. 19. Pursuant to that Order, physicians at Federal Medical Center ("FMC") Carswell conducted an evaluation. They concluded, in a report issued on July 1, 2008, that Ms. McCarey suffered from delusional disorder at the time of the offense and, as such, she did not appreciate the wrongfulness of her acts. See Stipulated Facts, ECF No. 23-2 at 2-3.1
Accordingly, on September 9, 2008,2 the Court held a stipulated trial, at which the Court conducted a comprehensivecolloquy to ensure that Ms. McCarey was competent to withdraw her guilty plea and plead not guilty by reason of insanity. See generally Sept. 9, 2008 Tr., ECF No. 71. Concluding that Ms. McCarey was competent, see id. at 34, the Court granted her motion to withdraw her guilty plea, see Order, ECF No. 24, and found her not guilty by reason of insanity, see Order, ECF No. 26. The Court also ordered a study pursuant to 18 U.S.C. § 4243(b) to determine whether Ms. McCarey presented a substantial risk of bodily injury to herself or another person. See Order, ECF No. 26. Upon learning that physicians believed Ms. McCarey presented a reasonably low risk of harming others, the Court ordered Ms. McCarey released to reside in Philadelphia, Pennsylvania pursuant to an appropriate conditional release plan on May 1, 2009. Order, ECF No. 36. The Court held regular status conferences and found Ms. McCarey in compliance with the terms of her conditional release plan until May 2011. Bench Warrant, ECF No. 51.
On June 6, 2011, Ms. McCarey was arrested in Hawaii. See June 8, 2011 Minute Entry. The Court ordered her committed to the custody of the U.S. Attorney General on June 10, 2011. See Order, ECF No. 54. The Court also ordered another psychological evaluation and directed the parties to submit a proposedconditional discharge plan. See Order, ECF No. 55. Upon reviewing the physicians' report and finding that Ms. McCarey was likely not a danger to herself or others on October 19, 2011, the Court ordered her conditionally released to Bensalem, Pennsylvania under the supervision of the United States Probation Office for the Eastern District of Pennsylvania. See Order, ECF No. 56. On November 16, 2011, the Court once again ordered Ms. McCarey committed pursuant to her own representation that she could no longer comply with the terms of her treatment plan. See Order, ECF No. 57. On March 9, 2012, she was again conditionally released to Bensalem, Pennsylvania upon the Court's review of the physicians' reports that she was likely not dangerous. See Order, ECF No. 61.3
On May 13, 2013, the United States Probation Office recommended that the Court transfer jurisdiction of Ms. McCarey's case to the U.S. District Court for the Eastern District of Pennsylvania ("Eastern District") because Ms. McCarey resided in Philadelphia and supervision had been provided by that Probation Office. See P.O. Petition, ECF No. 62. The Court concurred with the recommendation and transferredjurisdiction to the Eastern District on May 13, 2013. See Order, ECF No. 63. Jurisdiction was accepted by the Eastern District a month later. See Order, ECF No. 65.; see also Criminal Case Number 2:13-259 (E.D. Pa.).
About a year later, Ms. McCarey was arrested in the Middle District of Pennsylvania. See April 21, 2014 Minute Entry (Case No. 2:13-cr-259 (E.D. Pa.)). On May 15, 2014, the Eastern District Court ordered Ms. McCarey committed pursuant to 18 U.S.C. § 4243. See Order, ECF No. 11 (Case No. 2:13-cr-259 (E.D. Pa.)). On February 22, 2018, the Eastern District Court found that Ms. McCarey had recovered from her mental illness such that her conditional release would not create a substantial risk of injury to herself or another person. See Order, ECF No. 22 (Case No. 2:13-cr-259 (E.D. Pa.)). The Court conditionally released her to Philadelphia and imposed certain release conditions. See id. Based on the Court's review of the docket, it appears that Ms. McCarey has been complying with the terms of her conditional release. See generally Docket (Case No. 2:13-cr-259 (E.D. Pa.)).
Ms. McCarey argues that this Court should order her immediately and unconditionally released. See Def.'s Mot., ECF No. 66 at 12. She contends that the Court violated her due process rights when it accepted her motion to withdraw her guilty plea agreement and found her not guilty by reason ofinsanity without sua sponte ordering a competency study. Id. at 4. She argues that she was not competent and was "suffering from a mental illness which prevented [her] from understanding the nature of the court proceedings" and that she "was unable to work with [her] attorney." Id. The government responds that the Court should deny Ms. McCarey's motion because the record establishes that she was competent at the stipulated trial proceeding. See Gov't's Opp'n, ECF No. 72.
Before the Court can reach the merits of Ms. McCarey's 2255 motion, however, the Court must ensure that it has jurisdiction. The Court therefore first determines whether it has jurisdiction before it evaluates the merits of Ms. McCarey's claim.
The parties agree that Ms. McCarey is not eligible for relief pursuant to 28 U.S.C. § 2255 and that her motion should be construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Gov't's Opp'n, ECF No. 72 at 5-9; Def.'s Reply, ECF No. 75 at 1 ().
28 U.S.C. § 2255 provides that a "prisoner in custody under sentence of a court" may "move the court which imposed the sentence to vacate, set aside, or correct the sentence" if the prisoner believes "that the sentence was imposed in violation ofthe Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 18 U.S.C. § 2255(a).4
It is unclear, however, whether Ms. McCarey is a "prisoner under the sentence of a court" because she was found not guilty. Neither the Court nor the government could locate a case in which the Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") addressed whether a person acquitted by reason of insanity is entitled to 2255 relief. See Gov't's Opp'n, ECF No. 72 at 6. However, several federal courts have addressed this issue and concluded that a defendant acquitted by reason of insanity does not qualify as a "prisoner" under a sentence pursuant to 28 U.S.C. § 2255(a). See, e.g., Crook v. United States, No. 3:04-cr-58, 2008 WL 4933966, at *2 (W.D.N.C. Nov. 14, 2008)( )(citing United Statesv. Tucker, 153 Fed. App'x 173, 175 (4th Cir. 2005)(per curiam) ( appeal of denial of 2255 motion because individual had been found not guilty by reason of insanity); Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004)(petitioner "was found not guilty by reason of insanity and therefore is not eligible for relief under 28 U.S.C. § 2255"); United States v. Budell, 187 F.3d 1137, 1141 (9th Cir. 1999)(section 2255 is inapplicable to a petitioner who was originally found not guilty by reason of insanity "[b]ecause [he] was acquitted, [therefore] he is not a prisoner in custody under sentence . . . ."); Knox v. United States, 2008 WL 2168871 at * 4 (slip copy) ( that petitioner could not file a 2255 motion because he was not a "prisoner in custody under sentence"); United States v. Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998)("a defendant temporarily committed pursuant to section 4241(d) is neither a prisoner nor under sentence" and may not file a 2255 motion).
In this case, Ms. McCarey withdrew her guilty plea and was found not guilty by reason of insanity. See Orders, ECF Nos. 24, 26. As such, rather than being sentenced, Ms. McCarey was committed for mental health...
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