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White v. United States

February 7, 2007

JAMES WESLEY WHITE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Marbley

MAGISTRATE JUDGE KING

OPINION AND ORDER

On August 29, 2006, after an evidentiary hearing on the sole remaining issue, the Magistrate Judge issued a Report and Recommendation recommending that the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255 be dismissed. Doc. No. 191. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. Doc. No. 193.

The sole issue remaining for this Court's consideration involves petitioner's allegation in claim two that his attorney prevented him from pleading guilty to the indictment without providing substantial assistance to the government. Petitioner testified at the evidentiary hearing that he was never willing to plead guilty to all of the charges against him, and that he wanted explain to the District Judge that he was not guilty of certain charges. After the evidentiary hearing, the Magistrate Judge recommended dismissal of the remaining claim on the merits.

Petitioner objects to the Magistrate Judge's recommendation, although he states that "the Magistrate Judge correctly cites testimony in the hearing." Objections, at 4. Petitioner argues in his objections that defense counsel operated under an actual conflict of interest and failed to properly investigate; petitioner also contends that he was denied his right to testify at trial. See Objections.

Petitioner's claim that he was denied his right to testify at trial was dismissed on the merits on May 19, 2005, see Doc. Nos. 156, 160, and that issue is no longer properly before this Court. Further, petitioner's claim that his attorney operated under a conflict of interest and failed to investigate were not raised in petitioner's §2255 petition filed on September 17, 2003, and those issues are likewise not properly raised in these objections.

For the reasons discussed by the Magistrate Judge, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

The Clerk shall enter FINAL JUDGMENT in this action.

ALGENON L. MARBLEY United States District Judge

20070207

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