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McGee v. United States

United States District Court, N.D. West Virginia

March 29, 2019

MICHAEL T. McGEE, Petitioner,
v.
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

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         The pro se[1] 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. 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.

         This Court then entered a memorandum opinion and order affirming and adopting the magistrate judge's report 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 report and recommendation in order to file timely objections. 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 filed a motion for leave to amend supporting authority. ECF No. 15. 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.” 28 U.S.C. § 636(b)(1)(A). 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.” 333 U.S. 364, 395 (1948). Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo.

         III. Discussion

         This Court, after review, adopts and affirms the report and ...


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