McClure v. USA

Filing 27

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS ANDPARTIALLY ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Thad Heartfield on 9/30/15. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
RODERRETTE DEWRAYNE MCCLURE

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 9:14cv57

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
PARTIALLY ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Roderrette Dewrayne McClure, an inmate confined at the Upshur County Jail,
proceeding pro se, brought this Emergency Petition for Writ of Habeas Corpus seeking specific
performance of a prior plea agreement.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be dismissed.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record and pleadings. Petitioner filed
objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful consideration, the court concludes petitioner’s objections should be overruled.
As the magistrate judge concluded, a breach of the plea agreement has not occurred and the relief
sought by petitioner, specific performance, is not available. Accordingly, petitioner’s motion is
unauthorized and should be denied for lack of jurisdiction. Additionally, the petition lacks merit for
the reasons set forth in the Report.

However, petitioner now requests the court to vacate the judgment in his underlying
conviction, United States v. McClure, Criminal Action No. 9:11cr38. Applying the principles of
liberal construction, petitioner should be allowed to proceed with this issue as a ground for relief in
a motion to vacate, set aside or correct sentence.
A motion to vacate sentence, however, is ordinarily presented to the judge who presided at
the original conviction and imposed the sentence. See Blackledge v. Allison, 431 U.S. 63, 74 (1977);
28 U.S.C. § 2255. Accordingly, this action should be assigned to the Honorable Ron Clark, Chief
District Judge, for the purpose of determining the sole remaining issue of whether petitioner’s plea
of guilty was involuntary based on counsel’s alleged ineffective assistance.
ORDER
Accordingly, petitioner’s objections are OVERRULED in part. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED to the extent it recommended dismissal of petitioner’s claims for specific performance
presented in this petition. As set forth above, petitioner’s claim that his plea of guilty was
involuntary based on the alleged ineffective assistance of counsel will proceed before the judge
presiding at the original criminal proceeding.
SIGNED this the 30 day of September, 2015.

____________________________
Thad Heartfield
United States District Judge

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