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United States v. McClain

United States District Court, N.D. West Virginia

February 19, 2019

SHAWN MCCLAIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Bailey Judge

          REPORT AND RECOMMENDATION/OPINION I. INTRODUCTION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

         On 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. 53]..[1]

         The 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. §2255.

         II. FACTS

         A. Conviction and Sentence

         On 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].

         B. Direct Appeal

         The Petitioner did not appeal to the United States Court of Appeals for the Fourth Circuit.

         C. Federal Habeas Corpus

         The 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.

         sentence on the second matter be set aside or, alternatively, that the two sentences imposed be run concurrently and not consecutively.

         D. Recommendation

         Based upon review of the record, the undersigned recommends that Petitioner's Motion be denied and dismissed from the ...


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