McGee v. USA

Filing 9

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 6 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: The petitioners motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 1 is DENIED. It is further ORDERED that this case be DISMIS SED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/21/2017. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 9/21/2017: # 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
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The pro se 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).

ECF No. 6 at 3, 4, 7.

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.
II.

Applicable Law

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
III.

Discussion

This Court, after a review for clear error, finds no clear
error in the determinations of the magistrate judge and adopts and
affirms the report and recommendation (ECF No. 6) in its entirety.
This Court finds that the magistrate judge correctly found no
merit in petitioner’s claim that he was denied Due Process when he
was arrested in Ohio and transported to West Virginia.

The

magistrate judge 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.
The

ECF. No. 6 at 3-4.

magistrate

judge

also

correctly

found

no

merit

petitioner’s claims of ineffective assistance of counsel.

in

ECF No.

6 at 4-7. For ineffective assistance of counsel claims, the United
States Supreme Court has set forth a two-pronged test for courts to

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use when determining whether a convicted defendant’s claim of
ineffective

assistance

of

counsel

warrants

reversal

of

the

conviction.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, “the defendant must show that counsel’s performance was
deficient.”

Id.

Second, “the defendant must show that the

deficient performance prejudiced the defense.”
prongs

are

commonly

“prejudice” prongs.

referred

to

as

the

Id.

These two

“performance”

and

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 analyzed the 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.
This Court also finds that the magistrate judge correctly
found that no analysis of the Descamps ruling 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 U.S.S.G.
§ 4B1.1.

ECF No. 6 at 9.

Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a

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waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
This Court finds no error in the above determinations of the
magistrate judge and thus upholds his recommendation.
IV.

Conclusion

Accordingly, after a review for clear error, the report and
recommendation of the magistrate judge (ECF Nos. 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 Nos. 1/146) is
DENIED.

It is further ORDERED that this case be DISMISSED WITH

PREJUDICE and STRICKEN from the active docket of this Court.
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 to
counsel of record herein.

Pursuant to Federal Rule of Civil

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

September 21, 2017

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

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