Spearman v. Wilson
Filing
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MEMORANDUM OPINION AND ORDER: 1) Clerk of Court directed to SUBSTITUTE Richard Ives, current Warden USP-McCreary as Respondent to this proceedings and to identify Eric D. Wilson as the former Warner of USP-McCreary; 2) Edward Omar Spearman's 28 USC § 2241 Petition for Writ of Habeas Corpur is DENIED; 3) This action is DISMISSED sua sponte, with prejudice; and 4) Judgment will be entered contemporaneously with this Memorandum Opinion and Order in favor of both the substituted Respondent Richard Ives, current warden USP-McCreary and Eric D. Wilson, former Warden USP-McCreary. Signed by Judge Henry R. Wilhoit, Jr on 7/18/2011.(RC)cc: COR, paper copy to pro se petitioner
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
EDWARD OMAR SPEARMAN,
No.6:10-CV-237-HRW
Petitioner,
v.
MEMORANDUM OPINION
RICHARD IVES, Warden, and
ERIC D. WILSON,jormer Warden,
AND ORDER
Respondents.
***** ***** ***** *****
Edward Omar Spearman ("Spearman"), confined in the Federal Correctional
(Medium) Institution at Coleman, Florida, has filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [D. E. No. 2].1 As Spearman has paid
the $5.00 filing fee, the Court screens his petition pursuant to 28 U.S.C. § 2243.
At the screening phase, the Court must dismiss any petition that "is frivolous,
or obviously lacking in merit, or where ... the necessary facts can be determined
from the petition itself without need for consideration of a return." Allen v. Perini,
When Spearman filed his petition, he was confined in the United States Penitentiary
McCreary, ("USP-McCreary"), located in Pine Knot, Kentucky. His petition is properly before the
Court because jurisdiction is detennined at the time a § 2241 petition is filed. See Carafas v.
LaVallee, 391 U.S. 234, 237 (1968); Bishop v. Med. Superintendent ofthe Ionia State Hosp., 377
F.2d 467, 468 (6th Cir. 1967); see also DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140
(6th Cir. 1993). Eric Wilson is no longer be the Warden ofUSP-McCreary. The new Warden of
USP-McCreary is Richard Ives. The Clerk will be instructed to note the substitution of party.
424 F.2d 134, 141 (6th Cir. 1970) (citations omitted).2
Because Spearman has not demonstrated that his remedy in the court where he
was sentenced was inadequate and ineffective to challenge his federal conviction and
sentence, or that he is actually innocent of the federal offenses of which he was
convicted, his § 2241 petition will be denied and this proceeding will be dismissed.
CONVICTION AND PRIOR COLLATERAL CHALLENGES
In 1996, a federal jury in Michigan convicted Spearman and his brother of
among other things, two counts of drug related murder and participating in a
continuing criminal enterprise ("CCE").3 United States v. Spearman, No. 91-50013
(E. D. Mich.) ("the Trial Court"). On June 26, 1996, Spearman was sentenced to
three terms of life in prison, with consecutive terms of five years and twenty years.
Spearman appealed, but the judgment was affirmed in an unpublished opinion. See
2
The Court holds pro se pleadings to less stringent standards than those drafted by attorneys.
Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir.
1999). During screening, the Court accepts as true a pro se litigant's allegations and liberally
construes them in his favor. Urbina v. Thoms, 270 F.3d 292,295 (6th Cir. 2001).
3
Spearman was convicted on eight of nine counts in a superceding indictment, specifically,
participating in a continuing criminal enterprise, 21 U.S.C. § 848; two counts ofdrug-related murder,
21 U.S.c. § 848(e)(1)(A) and 18 U.S.C. § 2; two counts of firearm use during a felony drug offense,
18 U.S.C. § 924(c); dealing in firearms without a license, 18 U.S.C. § 922(a)(l)(A); conspiracy to
provide false statements in connection with the acquisition of firearms, 18 U.S.C. § 922(a)(6); and
conspiracy to distribute cocaine, 21 U.S.C. § 846 and § 841(a)(I) & (b)(I)(A). The Government
agreed to dismiss the cocaine conspiracy charge for the purpose of sentencing.
2
UnitedStatesv. Spearman, 166F.3d 1215,1998 WL 840870 (6thCir. Nov.17, 1998).
On August 28,2000, Spearman filed a motion to vacate his sentence, pursuant
to 28 U.S.C. § 2255, raising six grounds for relief. On January 12,2001, the Trial
Court denied the § 2255 motion; entered a separate judgment on January 23, 2001;
and denied Spearman's motion to alter or amend the judgment on February 21, 2001.
Spearman appealed.
The Sixth Circuit granted Spearman's application for a
certificate of appealability only as to his claim that his trial counsel rendered
ineffective assistance by failing to raise and preserve a proper challenge to the grand
jury selection process under United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998).
On August 8, 2002, the Sixth Circuit affirmed the denial ofthe § 2255 motion.
Spearman v. United States, 43 F. App'x. 906, 2002 WL 1832743 (6th Cir., August
8, 2002) (Unpublished).
The Sixth Circuit determined that Spearman did not
demonstrate ineffective assistance of counsel because he failed to either allege or
show prejudice resulting from his trial counsel's failure to raise a proper Ovalle
challenge to the grand and petit jury selection process and the resulting random
removal of non-blacks from jury pool. Id. at **2. The court concluded that
Spearman failed to demonstrate a reasonable probability of a different outcome.
On January 26, 2007, Spearman filed a motion in the Trial Court, under Federal
Rule of Civil Procedure 60(b), seeking relief from the denial of his § 2255 motion.
3
He argued that when the Trial Court denied his § 2255 motion in January 2001, it
failed to address the merits of his claim under Richardson v. United States, 526 U.S.
813 (1999), which held that a jury must unanimously agree on which specific
violations constitute the "continuing series" of three or more predicate offenses
required to prove a CCE offense. Spearman alleged that he had raised the claim in
a supplement to his § 2255 motion.
On November 1,2007, the Trial Court denied the motion as untimely, noting
that it denied Spearman's § 2255 motion in January 2001; that Spearman waited six
years to seek relief from that ruling under Rule 60(b); and that Spearman's six-year
delay in seeking such relief was unreasonable. The Trial Court granted Spearman a
certificate of appealability, but the Sixth Circuit affirmed the denial ofthe Rule 60(b)
motion. United States v. Spearman, No. 07-2534 (6th Cir. Nov. 25, 2008).
CLAIMS ASSERTED IN THE § 2241 PETITION
Spearman challenges his CCE conviction under 21 U.S.C. 848, contending that
the Trial Court failed to instruct the jury that the "violations" themselves are elements
ofthe CCE and that the jury was required to agree unanimously as to which three (or
more) related drug crimes he committed as subsequently required by Richardson.
Spearman argues that the Trial Court failed to address his Richardson claim
when it denied his § 2255 motion in January 2001; that the failure rendered his §
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2255 remedy inadequate and ineffective to challenge his CCE conviction; that this
Court should address his Richardson claim on the merits in this proceeding, vacate
his CCE conviction, and order a new trial on that offense; and finally, that his counsel
on direct appeal was ineffective for failing to argue that Richardson is retroactively
applicable to his case.
DISCUSSION
28 U.S.C. § 2255 Remedy Was Not Inadequate or Ineffective
Spearman fails to state a cognizable habeas corpus claim under 28 U.S.C. §
2241. A federal prisoner may attack the execution ofhis sentence by challenging the
computation ofhis parole or sentencing credits by filing a petition for a writ ofhabeas
corpus under 28 U.S.C. § 2241 in the court having jurisdiction over his custodian.
Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998); United States v. Jalili, 925
F.2d 889,893 (6th Cir. 1991).
Title 28 U.S.C. § 2255 provides the primary avenue of relief for federal
prisoners seeking release as a result ofan unlawful sentence. Terrell v. United States,
564 F.3d 442, 447 (6th Cir. 2009) (citing 28 U.S.C. § 2255(a)). A prisoner may not
challenge his conviction and sentence under § 2241 "if it appears that the applicant
has failed to apply for relief, by [§ 2255] motion, to the court which sentenced him,
or that such court has denied relief." See 28 U.S.C. § 2255(e).
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This rule has one exception: the "savings clause" of § 2255 allows for a § 2241
action if § 2255 is "inadequate or ineffective to test the legality of the detention."
Terrell, 564 F.3d at 447 (quoting Witham v. United States, 355 F.3d 501, 505 (6th
Cir. 2004)); see 28 U.S.C. § 2255(e). "Construing [the savings clause], courts have
uniformly held that claims asserted by federal prisoners that seek to challenge their
convictions or imposition of their sentence shall be filed in the [jurisdiction of the]
sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the
execution or manner in which the sentence is served shall be filed in the court having
jurisdiction over the prisoner's custodian under 28 U.S.C. § 2241." Terrell, 564 F.3d
at 447 (quoting Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999)).
This is an exceedingly narrow exception. The remedy is not "inadequate and
ineffective" simply because the prisoner failed to file a prior post-conviction motion
under § 2255 or, ifhe filed a § 2255 motion, was denied relief. Charles, 180 F.3d at
756-58. Instead, the Sixth Circuit has held that this exception only applies "when the
petitioner makes a claim of actual innocence." Bannerman v. Snyder, 325 F.3d 722,
724 (6th Cir. 2003). It is the prisoner's burden to prove that his remedy under § 2255
is inadequate or ineffective. Charles, 180 F.3d at 756.
Spearman has not carried his burden in this case. Contrary to Spearman's
arguments, neither the Trial Court's alleged failure to consider the Richardson claim
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nor its denial of his Rule 60(b) motion six years later rendered his § 2255 remedy
inadequate or ineffective. In its November 1,2007, Order denying Spearman's Rule
60(b) motion, the Trial Court accurately pointed out that Spearman's six-year delay
in seeking Rule 60(b) relief from the January 12,2001, Order (denying his § 2255
motion) was unreasonable and that he could have, and should have, raised the issue
at an earlier date.
Spearman further ignores the fact that he then unsuccessfully appealed the
denial of his Rule 60(b) motion (as untimely) to the Sixth Circuit. That court found
no credence to Spearman's claim that the Trial Court's failure to address his
Richardson claim, and its denial of his Rule 60(b) motion over six years later,
violated his Fifth Amendment right to due process of law. On appeal, the Sixth
Circuit could have remanded and instructed the Trial Court to address on the merits
Spearman's Richardson claim. Instead, it rejected his arguments, concluding:
Spearman is not entitled to Rule 60(b) relief. ...
Here, the district court properly concluded that Spearman's Rule 60(b)
motion was untimely. Motions brought pursuant to Rule 60(b)(4)
and (6) must be filed within a reasonable time. Olle v. Henry Wright
Corp., 910 F.2d 357, 365 (6 th eire 1990). Spearman provided no
justification for filing his motion approximately six years after the
denial of his § 2255 motion, and he has not demonstrated any
extraordinary circumstances justifying relief from judgment.
Finally... the district court ...dismissed Spearman's petition as
untimely, not as a second or successive § 2255 motion to vacate.
7
Spearman v. United States, No. 07-2534 (6 th Cir. November 25,2008) (Unpublished)
(emphasis added); Trial Court Docket, [D. E. No. 451 (11/26/08)].
To reiterate what both the Trial Court and the Sixth Circuit have explained,
Spearman should not have waited until January 26, 2007, the date on which he finally
filed his Rule 60(b) motion, to object to the Trial Court's alleged failure to address
his Richardson claim (challenging the constitutionality of his CCE conviction) six
years before, on January 12,2001. Even assuming that Spearman's Richardson claim
had any merit, his six-year failure to object to its alleged omission from the January
200 1Order denying him relief under § 2255 constitutes a clear waiver of the claim.
Given these facts, and the Charles holding that a § 2255 remedy is neither
inadequate nor ineffective where such relief has been denied or where the petitioner
is procedurally barred from pursuing such relief, this Court can not conclude that
Spearman's § 2255 remedy in the Trial Court was inadequate or ineffective to
challenge his CCE conviction. See also Johnson v. Shartle, No.4:09-CV-1773, 2010
WL 750143, at *3 (N. D. Ohio, February 26, 2010) (holding that unsuccessful
challenges to his conviction through both § 2255 and a Rule 60(b) motion did not
entitle habeas petitioner to relief under § 2241).
Spearman claims that based on Richardson, he is actually innocent ofthe CCE
conviction because the jury was not specifically instructed to unanimously agree on
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the three underlying drug convictions forming the basis ofthe CCE, which instruction
the Supreme Court subsequently required in Richardson. 4 Even assuming that
Spearman had not waived his Richardson claim, his actual innocence argument lacks
merit because the "harmless error doctrine" applies to retroactive Richardson claims.
This means that the Trial Court's failure to instruct Spearman's jury on the
CCE charge in the precise manner Richardson subsequently dictated may have been
merely harmless error, not constitutional error. See Neder v. United States, 527 U.S.
1 (1999) (holding that the trial court's omission during its jury instructions of an
essential element ofthe offense charged is subject to harmless error review); Murr v.
United States, 200 F. 3d at 906 (holding that although Richardson applied
retroactively, the failure to include a CCE unanimity instruction on the CCE charge
was only harmless error); United States v. Escobar-de Jesus, 187 F3d 148, 161 (1 st
Cir. 1999) (same). At best, harmless error occurred in Spearman's criminal case.
In order to sustain a conviction for engaging in a CCE, the government must
prove: (i) a felony violation of a federal narcotics law; (ii) as a part of a "continuing
series" ofat least three violations; (iii) "in concert with five or more persons"; (iv) for
4
The Sixth Circuit has ruled that Richardson applies retroactively because it set forth
substantive law. Murr v. United States, 200 F.3d 895, 906 (6 th Cir. 2000).
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whom the defendant is an organizer, supervisor or manager; and (v) from which he
derives substantial income or resources. See 21 U.S.C. § 848(c).
On direct appeal, Spearman challenged the legal sufficiency of his CCE
conviction. In its Order affirming, the Sixth Circuit stated as follows on the issue:
. . . Defendant's first predicate violation was his conviction for
conspiracy to distribute cocaine. This count was dismissed at the close
of trial, without prejudice, to be reinstated in case of a challenge to
Defendant's CCE conviction. Cf United States v. Rutledge, 517 U.S.
292, 116 S.Ct. 1241,134 L.Ed.2d419 (1996).... The last two predicate
acts were established by Defendant's conviction for the two counts of
drug-related murder.
Given the serious nature of each individual murder charge, under the
circumstances involved here, the multiple murders arising out of the
same incident are separate predicate acts for the purposes of a CCE
charge.
United States v. Spearman, 1998 WL 840870, at *8 (footnotes omitted).
The jury's decision to convict Spearman on these three counts necessarily
establishes that the jurors unanimously agreed that he was guilty of those offenses.
"'This decision ensures that the concern at the core of the Richardson decision
namely, that jurors might convict on the basis of violations for which there was
non-unanimity - is not present." Murr, 200 F.3d at 906 (citation omitted) (holding
that the failure to instruct the jury in accordance with Richardson was harmless error
because the jury had unanimously found the petitioner guilty often substantive drug
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offenses); United States v. Long, 190 F.3d 471, 476, n.3 (6 th Cir. 1999) (holding that
failure to instruct the jury to unanimously agree upon each ofthe CCE violations was
"clearly harmless as the jury also unanimously found [the defendant] guilty of more
than three drug violations committed in the course of the ongoing conspiracy to
distribute cocaine.").
Thus, ignoring the waiver issue in this case, any alleged error stemming from
the subsequent Richardson decision is harmless because the jury unanimously found
Spearman guilty ofthree committing three underlying drug offenses committed in the
course of the ongoing conspiracy to distribute cocaine, all of which were violations
of Title 21 of the United States Code and which properly formed the basis of a CCE
conviction. s Finally, it is worth noting that Spearman's conviction for two counts of
drug related murder result in two life sentences, regardless of the CCE charge.
Spearman has not shown that his § 2255 remedy in the Trial Court was
inadequate to challenge his conviction. He has not shown that the harmless error in
the jury instructions, created by a subsequent and retroactively applicable Supreme
Court decision, rendered him "actually innocent" of either the CCE charge or the
seven other charges of which he was convicted, which included two counts of drug
5
Spearman's other argument, that his counsel on direct appeal was ineffective for failing to
argue that Richardson is retroactively applicable to his case, lacks merit. Spearman's conviction was
affirmed on direct appeal in November 1998, but Richardson was not rendered until July 1, 1999.
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related murder. Thus, Speannan is not entitled to relief under § 2441; his petition
will be denied; and this action will be dismissed.
CONCLUSION
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
The Ckerk of the Court is directed to SUBSTITUTE Richard Ives,
current Warden of USP-McCreary, as the Respondent to this proceeding, and to
identify Eric D. Wilson as theformer Warden ofUSP-McCreary.
(2)
Edward Omar Speannan's 28 U.S.C. § 2241 Petition for Writ ofHabeas
Corpus, [D. E. No.2], is DENIED;
(3)
This action is DISMISSED, sua sponte, with prejudice; and
(4)
Judgment will be entered contemporaneously with this Memorandum
Opinion and Order in favor ofboth the substituted Respondent, Richard Ives, current
Warden ofUSP-McCreary, and Eric D. Wilson, fonner Warden ofUSP-McCreary.
This 18 th day of July, 2011.
HENRY R. WILHOIT, JR.
SENIOR U.S. DISTRICT JUDGE
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