United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION/OPINION I.
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
February 16, 2018, Shawn McClain (APetitioner@), filed this
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (AMotion@) by
his counsel, Elgine McArdle. [Civil Action No. 5:18CV30, ECF
No. 1; Criminal Action No. 5:15CR22, ECF No.
undersigned now issues this Report and Recommendation on
Petitioner's Motion without holding an evidentiary
hearing. For the reasons stated below, the undersigned
recommends that the District Judge deny and dismiss
Petitioner's Motion under 28 U.S.C. Â§2255.
Conviction and Sentence
April 1, 2015, the Petitioner was named in a one count
Indictment which charged that he did Aunlawfully, knowingly,
intentionally and without authority possess with intent to
distribute a quantity of heroin, a Schedule I controlled
substance, in violation of Title 21, United States Code,
Section 841(a)(1) and 841(b)(1)(c).@ ECF No. 1. On September
15, 2014, the Petitioner entered a plea of guilty. ECF No.
27. Pursuant to the plea agreement, the maximum sentence the
Petitioner faced was not more than 20 years imprisonment, a
$1, 000, 000 fine and at least 3 years supervised release.
The plea agreement provided that if his Base offense Level
was found to be a Level 16 or below, he waived the right to
appeal any order, the conviction and any sentence or the
manner in which the sentence was determined or to challenge
the conviction or the sentence or the manner in which was
determined in any post-conviction proceeding, including any
proceeding under 28 U.S.C. § 2255. Provided, however,
the agreement did not waive the Petitioner's right to
perfect any legal remedies he may otherwise have on appeal or
collateral attack respecting claims of ineffective assistance
of counsel or prosecutorial misconduct. ECF No. 25 at 4.
Following preparation of a Pre-Sentence Report, the Court
found that the Petitioner had a Total Offense Level of 14 and
a Criminal History Category of III, resulting in a sentencing
range of 21 to 27 months. On March 3, 2015, the Court imposed
a sentence of 120 months, which was outside the advisory
sentencing guideline system. [ECF No. 41].
Petitioner did not appeal to the United States Court of
Appeals for the Fourth Circuit.
Federal Habeas Corpus
Petitioner alleges ineffective assistance of counsel as his
one ground for relief. More specifically, the Petitioner
alleges that his former counsel failed to resolve or even
attempt to resolve the pending bond revocation at his first
sentencing which eventually lead to the second
indictment... He further alleges that his former
counsel failed to seek a continuance of the sentencing when
the judge pronounced an intended sentence of 120 months when
the PSR and plea called for a guideline range of 15-21
months. In addition, he alleges that his former counsel
failed to investigate and resolve the matters in the bond
petition which resulted in a 115 month increase in his
expected sentence. Finally, he alleges that counsel's
failures not only resulted in a 115 month increase in his
sentence, but it also resulted in a second indictment which
extended his sentence for the same offense for yet another 95
months above the initial sentence, all for the same conduct.1
ECF No. 53 at 4. For relief, the Petitioner requests that his
1 On April 5, 2016, a second indictment was returned against
the Petitioner and a co-defendant. The Petitioner was charged
in Count One with conspiracy to possess with intent to
distribute and to distribute heroin and fentanyl, in
violation of 21 U.S.C. § 846 and 841(b)(1)(C). The
indictment alleged that this criminal activity occurred
between November of 2014 and February 17, 2015. Count Six of
the indictment alleged that the Petitioner distributed heroin
and fentanyl within 1000' of a Protected Location on or
about February 4, 2015. See 5:16-CR-16, ECF No. 1.
Accordingly, the criminal conduct alleged in this indictment
occurred while the Petitioner was released on a personal
recognizance bond in Criminal Action No. 5:14cr22, and
resulted in his arrest on February 17, 2015, and the
subsequent revocation of his pre-trial release.
on the second matter be set aside or, alternatively, that the
two sentences imposed be run concurrently and not
upon review of the record, the undersigned recommends that
Petitioner's Motion be denied and dismissed from the