McGee v. USA

Filing 16

MEMORANDUM OPINION AND ORDER GRANTING 14 MOTION TO SET ASIDE ORDER AND FINAL JUDGMENT, GRANTING 15 MOTION FOR LEAVE TO AMEND SUPPORTING AUTHORITY AND MOTION TO AMEND SUPPORTING AUTHORITY, AFFIRMING AND ADOPTING 6 REPORT ANDRECOMMENDATION OF MAG ISTRATE JUDGE AND OVERRULING 13 PETITIONERS OBJECTIONS. The 1 petitioner's for a writ of habeas corpus is DENIED. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. Should t he petitioner choose to appeal, he is ADVISED that he must file a notice of appeal with the Clerk of the Court within 60 days after the date of the entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 3/29/2019. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 3/29/2019: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL T. McGEE,
Petitioner,
v.

Civil Action No. 5:16CV102
(Criminal Action No. 5:13CR23
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO SET ASIDE ORDER AND FINAL JUDGMENT,
GRANTING MOTION FOR LEAVE TO AMEND SUPPORTING
AUTHORITY AND MOTION TO AMEND SUPPORTING AUTHORITY,
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND OVERRULING PETITIONER’S OBJECTIONS
I.

Background

The pro se1 petitioner, Michael T. McGee, filed a motion (ECF
No. 1) under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence by a person in federal custody.

In that motion, the

petitioner claims that he was denied due process, asserts claims of
ineffective assistance of counsel, and claims that the Career
Offender’s Guideline Residual Clause is unconstitutionally vague
and that the Court violated the rule in Descamps v. United States
133 S. Ct. 2276 (2013).

1

ECF No. 6 at 3, 4, 7.

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014). The Court must read a pro se
plaintiff’s allegations in a liberal fashion.
See Haines v.
Kerner, 404 U.S. 519, 520 (1972).

Magistrate Judge Robert W. Trumble made a preliminary review
of the motion and determined that summary dismissal was not
warranted and entered an order directing the respondent to file an
answer, motion or other responsive pleading.
response and petitioner filed his reply.

Respondent filed its

Magistrate Judge Trumble

then issued a report and recommendation (ECF No. 6) without holding
an evidentiary hearing, and recommended “that the District Judge
deny and dismiss Petitioner’s motion with prejudice.”

ECF No. 6

at 1.
This

Court

affirming

and

then

entered

adopting

the

a

memorandum

magistrate

opinion

judge’s

and
report

order
and

recommendation. ECF No. 9. The Clerk then entered final judgment.
ECF No. 10.
On October 23, 2017, petitioner filed a motion to set aside
order and final judgment.

ECF No. 14.

In that motion, among other

things, petitioner asserts that “he did not receive; nor receive by
certified mail, return receipt a copy of the Magistrate Judge’s
Report and Recommendation (ECF No. 6), to file timely objections.”
ECF No. 14 at 2 (internal quotation marks omitted).
After conducting an investigation of whether or not petitioner
received the magistrate judge’s report and recommendation in order
to file timely objections, this Court finds that it is more likely
than

not

that

petitioner

did

not

receive

that

recommendation in order to file timely objections.
2

report

and

Therefore, the

petitioner’s motion to set aside order and final judgment (ECF No.
14) is GRANTED.
Petitioner also filed objections to the magistrate judge’s
report and recommendation.

ECF No. 13.

Assuming the petitioner

never received the report and recommendation in order to file
timely objections, this Court will consider the objections.
Lastly,

petitioner

supporting authority.

filed

a

ECF No. 15.

motion

for

leave

to

amend

This motion is GRANTED.

The

Court will consider this motion as part of the petitioner’s
objections.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.

As to those findings to which

objections were not filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).

28

As the Supreme Court of the United States

stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
3

333 U.S. 364, 395 (1948).
to

the

report

and

Because the petitioner filed objections

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo.
III.

Discussion

This Court, after review, adopts and affirms the report and
recommendation (ECF No. 6) in its entirety.
First, petitioner asserts that he was transported without
“counsel and hearing.”

ECF No. 13 at 2.

Petitioner argues that

“based on denial of counsel and a hearing in Ohio — the probable
cause challenges and malicious prosecution involved in his case,
passes over from the Fourth Amendment to the Due Process clause
. . .

Therefore, for the Magistrate Judge to find that Movant was

properly transported to the Northern District of West Virginia on
the day of his arrest for his counsel’s ineffectiveness for failing
to investigate and object to violations of Fed. R. Crim. P.
5(c)(1)(A)-(B).”

Id.

This Court finds that the magistrate judge

correctly found that petitioner was not denied Due Process when he
was

arrested

in

Ohio

and

transported

to

West

Virginia.

Specifically, the magistrate judge correctly found that petitioner
was properly transported from Steubenville Ohio, where he was
arrested, to the Northern District of West Virginia on the day of
his arrest for his initial appearance in front of Magistrate Judge
James E. Seibert in accordance with Rule 5(c)(2(B)(ii) of the
Federal Rules of Criminal Procedure.

4

ECF. No. 6 at 3-4.

Second, as to petitioner’s objections as to the magistrate
judge’s findings with respect to petitioner’s claims of ineffective
assistance

of

counsel,

for

ineffective

assistance

of

counsel

claims, the United States Supreme Court has set forth a two-pronged
test for courts to use when determining whether a convicted
defendant’s claim of ineffective assistance of counsel warrants
reversal of the conviction.
668, 687 (1984).

Strickland v. Washington, 466 U.S.

First, “the defendant must show that counsel’s

performance was deficient.”

Id.

Second, “the defendant must show

that the deficient performance prejudiced the defense.” Id. These
two prongs are commonly referred to as the “performance” and
“prejudice” prongs.

Fields v. Att’y Gen. of Md., 956 F.2d 1290,

1297 (4th Cir. 1992).
This Court finds that under Strickland, the magistrate judge
correctly found that petitioner’s claims that trial counsel was per
se ineffective, that counsel was ineffective due to a failure to
investigate and suppress evidence, and that counsel was ineffective
by failing to raise an issue on direct appeal, were without merit.
Moreover, petitioner’s argument that Carpenter v. United
States, 138 S. Ct. 2206, provides some basis for his ineffective
assistance of counsel claim is without merit.

First, petitioner’s

attorney did not fail to meet either prong under Strickland by not
foreseeing the holdings in Carpenter.

Second, Carpenter is not

applicable to the circumstances presented here.

5

Carpenter is a

narrow

decision

that

seems

to

specifically

address

call-site

records and the collection of such records over an extended period
of time.

Carpenter, 138 S. Ct. at 2220 (“Our decision today is a

narrow one . . .

We do not disturb the application of Smith[v.

Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed. 2d 220 (1979)] and
[United States v.]Miller[, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d
71

(1976)]

or

call

into

techniques and tools . . .”).

question

conventional

surveillance

In this case, the records that were

collected and the special agent’s testimony in the underlying
criminal action consisted of the numbers petitioner called, the
numbers that called petitioner’s number, and the dates, times, and
length of the calls.

The United States Supreme Court in Carpenter

explicitly stated that telephone call logs reveal little in the way
of identifying information.

Id. at 2219.

Third, petitioner asserts that his “sentence exceeds the
statutory maximum absent the prior convictions to be a career
offender.”

ECF No. 13 at 8.

However, this Court finds that the

magistrate judge correctly found that no analysis of the ruling in
Descamps is required in this matter, and that petitioner is a
career

offender

without

consideration

of

his

conviction

for

aggravated robbery given his two previous controlled substance
felony convictions, which unambiguously qualify him as a career
offender under United States Sentencing Guideline § 4B1.1. ECF No.
6 at 9.

6

Therefore,

this

Court

upholds

the

determinations

of

the

magistrate judge and therefore his recommendation.
IV.

Conclusion

Accordingly, the report and recommendation of the magistrate
judge (ECF No. 6/163) is AFFIRMED and ADOPTED in its entirety. The
petitioner’s motion for a writ of habeas corpus pursuant to 28
U.S.C. § 2255 (ECF No. 1/146) is DENIED.

Also, the

motion to set

aside order and final judgment (ECF Nos. 14/169) is hereby GRANTED,
the motion for leave to amend supporting authority and motion to
amend supporting authority (ECF No. 15) is hereby GRANTED and the
petitioner’s objections (ECF No. 13/168) are OVERRULED.
It is further ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

7

DATED:

March 29, 2019

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

8