United States District Court, District of Columbia
G. Sullivan United States District Judge.
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.
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
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.
on September 9, 2008,  the Court held a stipulated trial, at
which the Court conducted a comprehensive colloquy 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.
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 proposed conditional 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.
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 transferred jurisdiction 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.).
year later, Ms. McCarey was arrested in the Middle District
of Pennsylvania. See April 21, 2014 Minute Entry
(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 (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 (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 (No.
2:13-cr-259 (E.D. Pa.)).
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
of insanity 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.
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.
The Court Will Construe the 2255 Motion as a Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. §
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