McCarthy v. United States

• Court: Court of Appeals for the First Circuit
• Decided: December 22, 1998
• Docket: 97-2408
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 97-2408

AEDAN C. MCCARTHY, a/k/a JAMES LEE HARDIMAN, a/k/a JOHN EDWARD PERRY,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Stahl and Lynch, Circuit Judges.

Aedan McCarthy on brief pro se. Jay P. McCloskey, United States Attorney and Margaret D. McGaughey, Assistant United States Attorney on brief for appellee.

December 18, 1998

Per Curiam. Petitioner Aedan C. McCarthy was convicted of bank robbery and firearms offenses and sentenced as an armed career criminal. See U.S.S.G. 4B1.4 (1993). We affirmed his convictions and sentence. United States v. McCarthy, 77 F.3d 522 (1st Cir.), cert. denied, 117 S. Ct. 479 (1996). McCarthy now appeals the district court's denial of his subsequent motion, filed pursuant to 28 U.S.C. 2255, only insofar as the district court refused to hold his 2255 motion in abeyance while McCarthy seeks to vacate prior convictions in state courts that were the basis for his sentence as an armed career criminal. Although that 2255 motion raised claims about his federal convictions, which were resolved by the district court and are no longer pursued by McCarthy, McCarthy, in addition, sought to raise an, as yet, unripe claim regarding his status as an armed career criminal. Concerned about the one year period of limitation in 2255 imposed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, 105 (1996), McCarthy included this unripe claim in his 2255 motion, but asked the court to hold his motion in abeyance pending the outcome of his state court collateral attacks. We find no abuse of discretion in the district court's refusal to hold the 2255 motion in abeyance. In the event that McCarthy succeeds in vacating his state court convictions, his contention that the Armed Career Criminal Act (ACCA) is inapplicable to him would become ripe. It would appear that, in that event and at that time, he could seek to reopen this 2255 proceeding and obtain a

district court adjudication of that previously-raised claim. See Stewart v. Martinez-Villareal, 118 S. Ct. 1618, 1621-22 (1998) (holding that a claim presented in a first habeas petition and dismissed as premature could be adjudicated once it became ripe under the same standard as would govern claims made in a first petition); see also United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996) (holding that once a defendant succeeds in vacating underlying state court convictions, the ACCA is no longer applicable to the defendant's federal sentencing computation and he is entitled to be resentenced). The judgment of the district court is, therefore, affirmed.