United States District Court, N.D. West Virginia
MICHAEL T. McGEE, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 5:13CR23
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
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.
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.
Respondent filed its response and petitioner filed his reply.
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.
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).
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
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.
ECF. No. 6 at 3-4.
magistrate judge also correctly found no merit in
petitioner's claims of ineffective assistance of counsel.
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 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.” 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).
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.
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.
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
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).
Court finds no error in the above determinations of the
magistrate judge ...