Spicer v. Epps et al
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 38 Report and Recommendations. This action is Stayed pending exhaustion of Fred Sanford Spicer, Jr.'s claims in state court. Signed by Chief District Judge Louis Guirola, Jr. on 9/21/2016 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
FRED SANFORD SPICER, JR.
CAUSE NO. 1:13CV377-LG-JCG
MARSHALL L. FISHER, Commissioner
of Mississippi Department of Corrections;
and JIM HOOD, Attorney General of the
State of Mississippi
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
BEFORE THE COURT is the Report and Recommendation  entered by
United States Magistrate Judge John C. Gargiulo. On September 26, 2013, Fred
Sanford Spicer, Jr., filed a Petition for Writ of Habeas Corpus  asserting that his
attorneys provided ineffective assistance of counsel during his capital murder trial
in the Circuit Court of George County, Mississippi. Judge Gargiulo determined that
Spicer failed to exhaust his claims in state court prior to filing his habeas petition
and recommended that this case should be stayed until after the Mississippi
Supreme Court has had an opportunity to review new evidence presented in support
of Spicer’s habeas petition. Spicer has filed a timely objection to the Report and
Recommendation. After reviewing the record in this matter as well as the state
court record and the applicable law, the Court finds that Judge Gargiulo’s Report
and Recommendation should be adopted as the opinion of this Court.
In September 2001, Edmond Hebert helped Spicer obtain employment with a
roofing company, and he allowed Spicer to live in his trailer which was located in
Lucedale, Mississippi. On October 12, 2001, Hebert and Spicer’s employer notified
Hebert’s mother that neither Spicer nor Hebert had reported for work. Hebert’s
mother went to the trailer multiple times to tell Hebert about the phone call, but
each time she returned home after noting that Hebert’s truck was not there.
On that same day, Spicer was pulled over while driving Hebert’s truck. A
sword that belonged to Hebert was also located in the truck. After the ownership of
the truck was determined, a welfare check was requested for Hebert, whose body
was found in the trailer. An autopsy revealed that Hebert had died as a result of
skull fractures. Hebert’s blood was located on Spicer’s clothing and on the sword
that was in Spicer’s possession. Dr. Stephen Hayne, the forensic pathologist who
performed the autopsy, opined that Hebert’s fatal skull fractures were caused by the
blunt edge of Hebert’s sword.1
A George County jury found Spicer guilty of capital murder and sentenced
him to death by lethal injection. Spicer appealed the conviction and sentence,
which were affirmed by the Mississippi Supreme Court. Spicer v. State, 921 So. 2d
292 (Miss. 2006). Spicer filed a petition for post-conviction relief. The Supreme
Court granted him an evidentiary hearing before the trial court concerning the
issue of whether Spicer’s attorneys provided him ineffective assistance during the
Spicer claims that he had permission to drive Hebert’s truck, that the sword
was not the murder weapon, and that the small amount of Hebert’s blood found on
Spicer’s clothing could have come from living and working with Hebert for a roofing
company. A more thorough discussion of the factual and procedural history of this
case is included in Judge Gargiulo’s Report and Recommendation , which is
incorporated herein by reference.
penalty phase of the trial by failing to investigate and introduce mitigation evidence
of Spicer’s character and childhood history. The Supreme Court rejected all of
Spicer’s arguments that his attorneys provided ineffective assistance during the
guilt phase of the trial.
The trial court held an evidentiary hearing and determined that Spicer’s
sentence should be vacated. At a subsequent hearing, the State withdrew its
request for imposition of the death penalty. The trial court sentenced Spicer to life
imprisonment without the possibility of parole. Spicer then filed the present habeas
petition, relying in part on testimony that was given by Spicer’s trial counsel during
the evidentiary hearing ordered by the Supreme Court. Judge Gargiulo
recommends that this case be stayed so that Spicer can present this evidence to the
Mississippi Supreme Court.
Federal courts are prevented from granting habeas relief unless the
petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1).
“Exhaustion requires that a petitioner first present the substance of his federal
claims to the highest state court either through direct appeal or by state collateral
review procedures.” Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009). “To
provide the State with the necessary opportunity, the prisoner must fairly present
his claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature of
the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). “A habeas petitioner fails to
exhaust state remedies when he presents material additional evidentiary support to
the federal court that was not presented to the state court.” Ward v. Stephens, 777
F.3d 250, 258 (5th Cir. 2015) (internal quotation marks omitted).
In his petition for post-conviction relief filed with the Mississippi Supreme
Court, Spicer argued that his two-court-appointed attorneys – Darryl A. Hurt, Sr.,
and Sidney Barnett – failed to consult with him in preparation for trial. Spicer
produced Mr. Hurt’s billing records, which revealed that Mr. Hurt met with Spicer
for a total of four hours over the ten months preceding Spicer’s trial. Mr. Barnett
had no billing records, because he was the public defender. The Mississippi
Supreme Court rejected Spicer’s argument, because no information had been
presented concerning the amount of time that Mr. Barnett had spent consulting
with Spicer. Spicer v. State, 973 So. 2d 184, 193 (¶22) (Miss. 2007). The Court
believed that Mr. Barnett had served as lead counsel during the trial and “was more
likely to have been the attorney meeting with Spicer.” Id.
Spicer also argued that Mr. Hurt and Mr. Barnett failed to conduct a factual
investigation concerning the charges filed against him. This argument was based
on affidavits signed by Mr. Hurt and Mr. Barnett in which they each testified:
Pursuant to Mississippi Rule of Appellate Procedure 22(c)(4)(ii), I
located my records related to Mr. Spicer’s Trial. My records include
only publicly available pleadings and court records. My records do not
now, nor did they ever, include any notes, draft pleadings,
correspondence, investigatory reports, attorney work-product, or other
nonpublic information . . . .
(Pet., Ex. 11, 12, ECF Nos. 1-14, 1-15). Spicer also relied on Mr. Hurt’s billing
records, which indicated Mr. Hurt had spent 63.25 hours preparing the case for trial
and none of those time entries reference factual investigation or legal research. The
Mississippi Supreme Court held that it would be a “stretch to assume, let alone
conclude” that Spicer’s attorneys did not investigate the alleged crime based solely
on the Miss. R. App. P. 22 affidavits. Spicer, 973 So. 2d at 194 (¶26). The Court
also held that it was evident from the trial transcript that Spicer’s attorneys were
“fully prepared” to cross-examine the State’s witnesses. Id. at (¶27).
In his habeas petition, Spicer has produced the following testimony from Mr.
Hurt and Mr. Barnett in support of his arguments that these attorneys failed to
consult with him and failed to investigate the charges against him: (1) Mr. Hurt
served as lead counsel during the trial; (2) Mr. Barnett did not conduct any legal
research, but Mr. Hurt may have conducted some legal research on the day before
trial; (3) Mr. Hurt did not interview any of the State’s witnesses, while Mr. Barnett
only interviewed Spicer’s mother and sister; (4) neither Mr. Hurt nor Mr. Barnett
reviewed videotaped interviews of the State’s witnesses; (5) neither Mr. Hurt nor
Mr. Barnett consulted with forensic or medical experts; (6) they did not hire a
private investigator because they felt it was unnecessary; (7) Mr. Barnett visited
Spicer five or six times prior to trial in order to find out whether Spicer was
incompetent; (8) Mr. Hurt met with Spicer five times prior to trial.
Spicer also argues in his habeas petition that Mr. Hurt and Mr. Barnett
provided him with ineffective assistance by adopting a trial strategy of self-defense
that would have required Spicer to testify at trial, even though they believed that
he was incompetent and unable to meaningfully consult with them. This argument
is based on Mr. Hurt’s testimony during the evidentiary hearing that he believed
Spicer was incompetent and unable to assist in his defense. Mr. Hurt also testified
that Spicer was unable to meaningfully consult with him. Mr. Hurt admitted that
he did not know whether he expected Spicer to testify until after the trial started.
A claim is not fairly presented to the state court “if the additional evidence in
federal court puts the claim in a significantly different and stronger position than in
state court.” Ward, 777 F.3d at 258. “Merely putting a claim in a stronger
evidentiary posture is not enough . . . ; the new evidence must be so significant that
it fundamentally alters the legal claim such that, in fairness, the claim ought to be
remitted to state court for consideration of that evidence.” Id. (internal citations
and quotation marks omitted). The Fifth Circuit has held that the following factors
“aid in a finding of exhaustion”:
there is no intentional withholding of evidence from state court; the
state petition is very specific rather than vaguely conclusory as to
petitioner’s theory of ineffective assistance of counsel; additional
evidence merely confirms what the petitioner specifically asserted in
the state habeas proceeding; and all crucial facts were before the state
Smith v. Dretke, 134 F. App’x 674, 678 (5th Cir. 2005).
First, there is no indication that Spicer intentionally withheld evidence from
the state court. Second, Spicer’s state court petition could not be considered
“vaguely conclusory.” However, the new evidence that Mr. Hurt adopted a defense
strategy that required Spicer’s testimony even though he viewed Spicer as
incompetent and unable to assist in his defense is not mere supplemental evidence.
In fact, this appears to be a new argument that was not considered by the
Mississippi Supreme Court. Furthermore, the Mississippi Supreme Court had no
information concerning the amount of time that Mr. Barnett spent consulting with
Spicer. As a result, Judge Gargiulo correctly determined that the new evidence
fundamentally altered Spicer’s claims such that Spicer did not exhaust his claims in
the state court.
Nevertheless, Spicer argues that this Court should not require him to
exhaust his claims, because he claims that the Mississippi Supreme Court violated
the standard of review for post-conviction petitions and failed to grant an
evidentiary hearing concerning the guilt phase of trial. Spicer has not cited any
legal authority in support of this argument. Furthermore, he has not demonstrated
that any exception to the exhaustion requirement applies in this case.
The Court must next consider whether Judge Gargiulo properly determined
that action concerning Spicer’s habeas petition be stayed pending exhaustion in
state court. The United States Supreme Court has held that “a stay and abeyance
should be available only in limited circumstances.” Rhines v. Weber, 544 U.S. 269,
277 (2005). Thus, a stay is only available when (1) the petition had good cause for
failing to exhaust; (2) the unexhausted claims are not plainly meritless; and (3) the
petitioner has not engaged in abusive litigation tactics or intentional delay. Id. at
277-78. Finally, if a stay is imposed, the district court “should place time limits on
a petitioner’s trip to state court and back.” Id. at 278.
Judge Gargiulo correctly found that there was good cause for Spicer’s failure
to exhaust. The procedural history of this case is unusual and it was reasonable for
Spicer to believe that he could not seek further relief in state court following the
evidentiary hearing concerning the sentencing phase of trial. Furthermore, Spicer’s
unexhausted claims are not plainly meritless. Third, there is no indication that
Spicer has engaged in any abusive litigation tactics or intentionally delayed the
proceedings. The Court also notes that failure to grant a stay could prevent Spicer
from seeking relief before this Court in the event that the state court denies him
relief. See Rhines, 544 U.S. at 275 (explaining that the filing of a habeas petition
does not toll the statute of limitations imposed by the AEDPA). Therefore, the
Court finds that this action should be stayed pending exhaustion in state court.
Spicer must file a petition in state court within thirty days of the date of this
opinion. Spicer must also file a motion to lift the stay or a motion to dismiss his
habeas petition within thirty days after exhausting his claims in state court.
Failure to comply with these time limits will result in dismissal of Spicer’s habeas
For the foregoing reasons, the Court finds that Judge Gargiulo’s Report and
Recommendation should be adopted as the opinion of this Court. This action is
stayed pending exhaustion of Spicer’s claims in state court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendation  entered by United States Magistrate Judge John C. Gargiulo
is ADOPTED as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that this action is
STAYED pending exhaustion of Fred Sanford Spicer, Jr.’s claims in state court.
Spicer is ordered to file a petition in state court within THIRTY DAYS of the date
of this opinion. Spicer must also file a motion to lift the stay or a motion to dismiss
his habeas petition within THIRTY DAYS after exhausting his claims in state
court. Failure to comply with these time limits will result in dismissal of Spicer’s
SO ORDERED AND ADJUDGED this the 21st day of September, 2016.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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