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Delbert Mcgee v. United States of America

October 12, 2012

DELBERT MCGEE , PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY U. S. District Judge

E-FILED Friday, 12 October, 2012 11:48:32 AM Clerk, U.S. District Court, ILCD

OPINION

On March 20, 2012, Petitioner, Delbert McGee, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (#1). On March 23, 2012, Petitioner filed a Motion (#3) to supplement his § 2255 petition (#1). On April 10, 2012, the Government filed its Response (#4) to Petitioner's Motion (#1). On April 23, 2012, Petitioner filed a supplement (#5) to his § 2255 motion (#1). This court has carefully and thoroughly reviewed the arguments of the parties and the documents provided. Following this careful consideration, Petitioner's Motion to Supplement (#3) is GRANTED. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DENIED. Additionally, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED.

I. FACTS AND PROCEDURAL HISTORY*fn1

On January 7, 2010, police officers obtained a search warrant for Petitioner's residence. During the search, officers found 1) a loaded Lorcin model9LMM, 9 millimeter pistol; 2) a loaded Rohm model RG10 .22 caliber revolver; 3) a loaded Hi Point model C9 9 millimeter pistol; and 4) a Ruger model Single Six .22 caliber revolver. Petitioner admitted that the guns belonged to him, that he had purchased three of the guns, and one of them was loaned to him. Prior to January 7, 2010, Petitioner had been convicted in McLean County, Illinois case 2002-CF-1437 of a felony offense, residential burglary. On March 4, 2010, in case 10-CR-20013 in this court, Petitioner was charged in an indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

On December 6, 2010, Petitioner entered into a plea agreement (10-CR-20013, #19). In the agreement, Petitioner agreed to, in pertinent part and among other things, the following statements:

3. Pursuant to Federal Rule of Criminal Procedure l1(c)(l)(C), the defendant will enter a plea of guilty to the indictment in this cause. The indictment charges the defendant with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(l).

4. The defendant has personally read the indictment and the charge to which the defendant is pleading guilty. The indictment and the charge have been explained to the defendant by the defendant's attorney. Furthermore, the defendant fully understands the nature and elements of the crime to which the defendant is pleading guilty.

12. The defendant further understands, and the parties agree that pursuant to the pre-plea criminal history computation as completed by the U.S. Probation Department, the defendant would be classified as an Armed Career Offender under the sentencing guidelines, as he has three prior felony convictions that are considered violent felonies and/or serious drug offenses, as that concept is defined at U.S.S.G. § 4B1.4 and 18 U.S.C. § 924 (e)(l).

13. The United States and the defendant agree that by pleading guilty he is admitting to violating 18 U.S.C. § 922 (g) and he has three prior convictions for a violent felony or a serious drug offense, or both, committed on occasions different from one another, which are the following: Residential Burglary in cause number 02CF1437 in McLean County Circuit Court, Burglary in cause number 97CFI066 in McLean County Circuit Court and Delivery of Cannabis in cause number 03CF58.

16. The United States and the defendant agree that pursuant to U.S.S.G. § 4B1.4(c)(2) the defendant's criminal history category for an armed career criminal is Category VI, where the defendant possessed the firearm in connection with a controlled substance offense (as defined in a U.S.S.G. § 4B1.2(b)).

17. Further, the defendant's criminal history category according from U.S.S.G. § 4A1.1 is also calculated at criminal history category of VI, where the defendant has 13 criminal history points from the following convictions:

[ * * *]

c. On March 21, 2003, the defendant plead [sic] guilty to Delivery of Cannabis in case number 03CF58 in the McLean County Circuit Court, Illinois. The defendant was sentenced to 6 years in the Illinois Department of Corrections. This results in 3 criminal history point pursuant to § 4A1.1(a).

24. The defendant also understands that he has a right to attack his conviction or sentence collaterally on the grounds that the Constitution or laws of the United States were violated, he received ineffective assistance from his attorney, this Court was without proper jurisdiction or the conviction or sentence was otherwise subject to collateral attack. The defendant understands such an attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and his attorney have reviewed Section 2255, and the defendant understands the rights that statute gives him. The defendant's attorney has fully discussed and explained this waiver with the defendant but has made no recommendation to the defendant as to the waiver of a motion under Title 28, United States Code, Section 2255. The defendant specifically acknowledges that the decision to waive the right to ...


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