United States District Court, N.D. West Virginia
MICHAEL T. McGEE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
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.
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.
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.
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).
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.
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.
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
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
Court, after review, adopts and affirms the report and