Spencer v. United States of America
Filing
1228
MEMORANDUM OPINION AND ORDER as to Eric Dewayne Spencer; denying certificate of appealability; adopting 1207 PROPOSED FINDINGS AND RECOMMENDATIONS; denying 1124 MOTION by Eric Dewayne Spencer to Vacate, Set Aside or Correct Sentence by a Person i n Federal Custody pursuant to Title 28, United States Code, Section 2255; directing that this matter be removed from the Court's active docket. Cross Reference Criminal Case Number 2:99-00012-03. Signed by Judge David A. Faber on 3/29/2012. (cc: Judge, USA, counsel, movant) (tmr)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ERIC DEWAYNE SPENCER,
Movant,
v.
Civil Action No. 2:08-01390
Criminal No. 2:99-00012-03
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court is Movant Eric Spencer’s Motion to
Vacate, Set Aside and Correct Sentence pursuant to 28 U.S.C. §
2255. (Doc. No. 1124).
By Standing Order, this action was
referred to United States Magistrate Judge Mary E. Stanley for
submission of findings and recommendations regarding
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate
Judge Stanley submitted to the court her Proposed Findings and
Recommendation (“PF&R”) on November, 14, 2011, in which she
recommended that the § 2255 Motion be denied, and that the civil
action be dismissed from the court’s docket.
(Doc. No. 1207).
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Stanley’s Findings and Recommendation.
The failure of any party
to file timely objections constitutes a waiver of such party’s
right to a de novo review by this court.
1
Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984).
On December 8, 2011, the Movant filed
a motion to extend time to file objections to the PF&R, which
the court granted.
(Docs. No. 1210, 1214).
On February 9,
2012, the Movant filed a second motion to extend time to file
objections, which the court granted, giving the Movant until
February 20, 2012, to file his objections.
1220).
(Docs. No. 1219,
The Movant filed his objections on February 24, 2012.
(Doc. No. 1222).1 The court has reviewed de novo those portions
of the PF&R to which the Movant objects and FINDS that the
objections lack merit.
Accordingly, the court ADOPTS and
incorporates herein the Magistrate Judge’s Proposed Findings and
Recommendation.
I.
Factual and Procedural Background
On or about February 17, 1999, a federal grand jury
returned a thirteen count superseding indictment charging Eric
Spencer and a number of others with various drug-related
1
The court notes that the objections were not timely filed.
However, on November 10, 2011, the Movant was granted a sentence
reduction under 18 U.S.C. § 3582, pursuant to the Fair
Sentencing Act of 2010, which retroactively amended the United
States Sentencing Guidelines for offense involving cocaine base.
The Movant’s sentence was reduced from 262 months to 168 months.
Spencer was released from incarceration on November 16, 2011.
(Doc. No. 1207). Because of this, he did not immediately
receive the PF&R entered November 14, 2011. There is ample
evidence that the Movant was diligently pursuing his rights, and
he filed his pro se objections four days after the extended
deadline. For these reasons, the court will treat his
objections as timely filed.
2
offenses.
Defendant was charged with conspiracy to distribute
and possess with intent to distribute cocaine powder, cocaine
base (“crack”), and marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846: travel in interstate commerce to facilitate
the conspiracy in violation of 21 U.S.C. § 846, and possession
with intent to distribute crack, cocaine powder, and marijuana
in violation of 21 U.S.C. § 841(a)(1).
(Doc. No. 57).
Guilty Plea
On or about April 21, 1999, Defendant pled guilty, pursuant
to a written plea agreement, to the conspiracy charge.
During
the plea hearing, and in accordance with the requirements of
Federal Rule of Criminal Procedure 11(b)(1), Mr. Spencer
appeared with his counsel, Herbert Henderson, to review the
penalties to which Spencer was exposed based upon his guilty
plea, and to review the rights he was giving up as a result of
the plea.
At the plea hearing, before and after pleading
guilty, Mr. Spencer was informed that, at sentencing, the United
States intended to prove a sufficient drug quantity for the
statutory ten-year mandatory minimum and that the maximum
sentence could be life in prison.
20).
(Doc. No. 539 at 8-9, 15-16,
Additionally, at the plea hearing, Mr. Henderson, in the
presence of Spencer, proffered that the Defendant admitted that
from 1995 to 1998, he conspired with Calvin Dyess, Benjamin
Green, and Leon Mitchell to purchase cocaine and marijuana and
3
sell it to others.
Mr. Henderson further specified that these
individuals agreed to pool their money, purchase drugs and
divide the drugs for re-sale.
Mr. Henderson proffered that
Spencer was involved in the sale of cocaine, crack, and
marijuana.
(Id. at 14-15). Mr. Spencer also acknowledged in his
own words that he knew he was dealing with these controlled
substances, that he knew what others were doing, and that they
knew what he was doing.
Spencer admitted that his conduct was
unlawful, and specifically admitted that the conspiracy involved
50 or more grams of cocaine base or five or more kilograms of
cocaine powder.
(Id. at 16-17).
Sentencing
A three-day sentencing hearing was held for Eric Spencer
and his co-defendants, Calvin Dyess and Orange Dyess on August
25 and 26, 1999.
As noted by the Court of Appeals, “[t]he
district court’s factual findings that served as bases for
[Defendant’s] sentence were not admitted by [Defendant].”
United States v. Dyess, 478 F.3d 224, 241 (4th Cir. 2007).
The
sentencing court found that the testimony presented at the
sentencing hearing established that the total amount of drugs
involved in the conspiracy was at least 1.5 kilograms of cocaine
base, as calculated in the PSR, and that Spencer had a
supervisory role in the distribution scheme.
Mr. Spencer did
not contest the amount of drugs involved during the sentencing
4
hearing and, in fact, admitted that the conspiracy involved 12
to 17 kilograms of cocaine during his debriefing and through Mr.
Henderson at sentencing.
During his allocution, Mr. Spencer
stated: “I haven’t denied selling drugs, and I fully accept
responsibility for the offenses I committed.”
(Doc. No. 488 at
415).
Mr. Spencer’s First Appeal
On September 1, 1999, Mr. Spencer timely filed a pro se
notice of appeal to the United States Court of Appeals for the
Fourth Circuit.
(Doc. No. 386).
His appeal was consolidated
with his co-defendants, Calvin Dyess and Orange Dyess.
No. 498, 99-4566(L)).
(Doc.
Attorney Thomas Gillooly was appointed to
represent Spencer during his appeal.
The defendants moved to disqualify the United States
Attorney’s Office for the Southern District of West Virginia and
that motion was granted.
The United States Attorney’s Office
for the Eastern District of Virginia was appointed by the
Attorney General to serve as Special Assistants to the Attorney
General to represent the United States.
(Doc. No. 761).
On
July 9, 2003, the defendants jointly moved to dismiss the
indictment, to withdraw their guilty pleas, and for a new
sentencing hearing based on the government misconduct. (Doc. No.
826.) Spencer and Calvin Dyess also filed a joint motion to
vacate their sentences, and to conduct a new sentencing hearing
5
based upon the Supreme Court’s decision in Apprendi v. New
Jersey, 530
U.S. 466 (2000). (Doc. No. 824).
In support of their motions for relief, Mr. Spencer and his
two co-defendants argued that the factual basis for the
sentencing guidelines calculations used at their original
sentencing hearing was undermined by the misconduct of Officers
Hart and Henderson and co-defendant, Ms. Rader, as well as by
the purported recantations by co-defendants Benjamin E. Green,
Jr. and Lori Nicole Cummings. (Doc. No. 827).
On August 26, 2003, this court empaneled a special grand
jury in Charleston, West Virginia, to investigate and review the
conduct surrounding the investigation of the drug trafficking
activities of Calvin Dyess, Spencer and others. Dyess, 478 F.3d
at 234. The grand jury ultimately issued a presentment and
report.
According to the Presentment and Report of the Grand Jury,
during the grand jury proceedings, Officer Hart testified that
he denied suggesting that Ms. Rader lie about Calvin’s drug
dealing, and further denied threatening Ms. Rader during the
course of her criminal case. Hart also denied ever attempting to
coerce other witnesses to exaggerate the weight of the drugs
involved in the conspiracy, as alleged in the affidavits of
Green and Cummings. (Doc. No. 1027 at 12).
6
In his December 17, 2003 Order addressing the various
motions, Judge Haden stated that “an evidentiary hearing on the
alleged perjured testimony offered at sentencing and
resentencing, if necessary, cleansed of the tainted evidence,
should cure any prejudice engendered by Hart’s malfeasance.”
United States v. Dyess, 293 F. Supp. 2d 675, 686 (S.D. W. Va.
Dec. 17, 2003).
Judge Haden also denied the defendants’ motion
to withdraw their guilty plea, correctly noting that the
information was not exculpatory evidence; rather it was
impeachment evidence. Judge Haden also noted that no Defendant
made a claim of actual innocence.
(Doc. No. 1207 at p. 18).
As
to the defendants’ motion to be resentenced, Judge Haden ordered
an evidentiary hearing to determine the weight of the credible
evidence on the issue of Spencer’s three-point enhancement for
his role in the offense.
Id.
The evidentiary hearing was held
on July 9, 2004, in front of this court.2
On June 24, 2004, the Supreme Court decided the case of
Blakely v. Washington, 542 U.S. 296 (2004), which extended the
holding in Apprendi to other mandatory state sentencing schemes.
The Court held that, in the context of mandatory sentencing
guidelines under state law, the Sixth Amendment right to a jury
2
Judge Haden passed away prior to the evidentiary hearing, and
the undersigned was appointed to the case post-appeal.
7
trial prohibited enhancing criminal sentences based on facts
other than those decided by the jury or admitted by the
defendant. Still outstanding was the issue of whether these
holdings would be extended by the Court to the United States
Sentencing Guidelines.
The defendants, who had the burden of proof, called the
following witnesses to testify at the July 9, 2004 evidentiary
hearing: Rachel Ursala Rader (Ms. Rader), Officer William Hart,
Officer George Henderson, Lori Nicole Cummings, United States
Probation Officer John B. Edgar and Assistant United States
Attorney Monica Schwartz. Both the defense and the government
examined and cross-examined the witnesses under oath. None of
the testimony at the evidentiary hearing concerned any specific
amounts of drugs. In fact, Ms. Rader and Lori Cummings both
testified that they had no specific knowledge of the amount of
drugs involved in the conspiracy.
On February 11, 2005, the undersigned issued an Order
denying the defendants’ motions to vacate their sentences and
their motion for re-sentencing. (Doc. No. 1001). After having
the opportunity to observe each witness testify at the hearing,
the court noted that “the defense offered proof that part of
[Ms. Rader’s] testimony during defendants’ consolidated
sentencing hearing is not reliable.” (Id. at 3). The government
did not dispute this finding. Instead, the government argued
8
that, notwithstanding Ms. Rader’s testimony and the alleged
misconduct by Officers Hart and Henderson, there was sufficient
untainted evidence to support the original sentences imposed.
(Id. at 3-4).
The court further found that the drug quantities
established by the government witnesses (other than Ms. Rader,
Hart, Henderson, Green and Cummings, whose testimony was deemed
unreliable) at the original sentencing hearing “significantly
exceeded the 1.5 kilograms of crack cocaine Judge Haden used to
sentence the defendants.” (Id. at 5). There was no evidence
presented that the conduct of Officers Hart and Henderson had
affected the original testimony of the remaining witnesses. (Id.
at 6).
The Order further stated that the court “reconsidered Judge
Haden’s original sentences in these cases in light of Booker and
finds them to be reasonable and fully supported by credible
evidence. In light of this evidence, if called upon to
resentence these defendants, the court would give them the same
sentences Judge Haden imposed.” (Id. at 11-12).
The defendants
filed a motion to reconsider, which was summarily denied by this
court.
(Doc. No. 1025).
On February 28, 2005, Mr. Spencer
filed a Notice of Appeal, and Joan Mooney was appointed as new
counsel for Defendant on this appeal.
9
(Doc. No. 1020).
Mr. Spencer’s Second Appeal
On his second appeal, Spencer argued that his Booker claim
was properly preserved on remand.
He further asserted that he
neither admitted, nor could the government prove beyond a
reasonable doubt, that 1.5 kg of cocaine base was attributable
to him.
The Fourth Circuit made the following findings concerning
his claims:
Sixth Amendment sentencing error occurs when a
sentencing court under a mandatory sentencing
guideline regime bases its decision on facts (other
than a prior conviction) not found by a jury beyond a
reasonable doubt or admitted by the defendant, to
enhance a defendant’s sentence above the minimum
required by a finding of guilty for a given offense.
Booker, 543 U.S. at 244, 125 S. Ct. 738. Such error
occurred when these defendants were initially
sentenced in 1999, but we are of the opinion it was
cured on remand in 2005. In its order denying the
defendants’ motions to vacate the sentences and for
resentencing, the district court (Judge Faber)
announced that it had “reconsidered . . . [the]
original sentences in these cases in light of Booker”
and found the terms “to be reasonable and fully
supported by credible evidence.” (SJA 390-91). We find
that this language is, for all practical purposes, an
“alternative identical sentence treating the
Guidelines as advisory only.” See United States v.
Revels, 455 F.3d 448, 451 (4th Cir. 2006; see
United States v. Hammoud, 381 F.3d 316, 353-54 (4th
Cir. 2004). We therefore conclude that any Booker
error in the defendants’ sentencing is harmless, as it
has not “actually affected the outcome of the
proceedings.” United States v. Hughes, 401 F.3d 540,
548 (4th Cir. 2005).
10
United States v. Dyess, 478 F.3d 224, 240-241 (4th Cir. 2007).
The Fourth Circuit upheld the decision of the lower court and
ultimately regarded any Sixth Amendment errors as harmless.
Finally, to the extent that the defendants argued that
their original sentences were not supported by credible evidence
because the sentences were tainted by the misconduct of Hart and
Ms. Rader, which culminated in Hart’s subornation of perjury by
Ms. Rader at the sentencing hearing, the Fourth Circuit stated:
We have already addressed the substance of this
question in our discussion of Booker and the impact on
the defendants’ sentences of the [Rader]-Hart affair.
On remand, Judge Faber considered anew all of the
evidence justifying the defendants’ sentences and
found that “in spite of the credibility problems of
[Rader], Hart, Henderson and Green, the original
sentences are supported by abundant credible
evidence.” (SJA 390). We agree with the district court
and find the defendants’ contentions on this point to
be without merit.
Id. at 242-43.
Spencer then filed a Petition for Writ of Ceriorari,
Spencer v. United States, 552 U.S. 1063 (No. 07-5582).
The
Petition for a writ of certiorari was denied on December 3,
2007.
552 U.S. 1063 (2007).
A Petition for Rehearing was also
denied by the Supreme Court on March 3, 2008.
States, 552 U.S. 1251 (2008).
Spencer v. United
Defendant filed the instant
motion under 28 U.S.C. § 2255 on December 5, 2008.
1124).
11
(Doc. No.
On November 10, 2011, Eric Spencer was granted a reduction
in sentence in light of Amendment 750 to the United States
Sentencing Guidelines and under 18 U.S.C. § 3582(c)(2).
No. 1204-1206).
(Docs.
Defendant’s sentence was reduced to 168 months.
(Doc. No. 1204 at 2).
In addition to the conditions of
supervised released previously imposed, the court imposed a
special condition of supervised release requiring Defendant to
serve 90 days in a community confinement center. (Doc. No. 1204
at 2). The District Court’s Memorandum Opinion and Judgment
Order states that, in granting the reduction, the District Court
considered an addendum to the PSR and the applicable factors
under 18 U.S.C. § 3553(a).
II.
Discussion
Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 688 (1984), the
United States Supreme Court adopted a two-prong test for
determining whether a defendant received adequate assistance of
counsel.
The first prong is competence; Defendant must show
that the representation fell below an objective standard of
reasonableness.
Id. at 687-91.
There is a strong presumption
that the conduct of counsel was in the wide range of what is
considered reasonable professional assistance, and a reviewing
court must be highly deferential in scrutinizing the performance
of counsel.
Id. at 688-89.
12
In order to meet the first prong, Defendant:
Must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment. The court must then determine
whether, in light of all the circumstances, the
identified acts or omissions were outside the wide
range of professionally competent assistance. . .
[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.
Id. at 690.
The second prong is prejudice; “[t]he defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.
A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. at 694.
The court may determine the prejudice prong prior to
considering the competency prong if it is easier to dispose of
the claim on the ground of lack of prejudice.
Id. at 697.
Using this standard and based upon all of the evidence of
record, the court will address the merit of each of Movant’s
allegations concerning ineffective assistance of counsel.
The standard for ineffective assistance of counsel
following a guilty plea is that the defendant must demonstrate
prejudice by showing that “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
13
and would have insisted on going to trial.”
Hooper v.
Garraghty, 845 F.2d 471, 475 (4th Cir. 1988).
III. The Movant’s Objections
Objection I. “Counsel Henderson was ineffective for
failing to investigate the law regarding Movant
Spencer’s aggravating rule [sic, role] enhancement
under U.S.S.G. § 3B1.1.”
The Movant asserts that he received ineffective assistance
of counsel at the sentencing stage of his trial, when his
counsel failed to present United States v. Capers, 61 F.3d 1100
(4th Cir. 1995).
In Capers, the Fourth Circuit explained the
1993 Amendment to the commentary of U.S.S.G. 3B1.1.3
According to U.S.S.G. § 3B1.1(b), “If the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive, increase [base offense level] by 3 levels.”
Capers, 61 F.3d 1100, 1109 (4th Cir. 1995).
“Before the
amendment, a defendant in the circuit could receive the
enhancement without having exercised control over other persons;
after the amendment, the defendant must have exercised control
over other persons to warrant the enhancement.”
Id. at 1110.
Capers further explained:
3
This objection is essentially the same ground raised in his
Section 2255 motion, where the Defendant asserts that Mr.
Henderson did not have an appropriate understanding of the
guideline permitting a sentence enhancement for someone who had
an aggravating role in the offense. (Doc. No. 1125 at 45).
14
The 1993 amendment did not alter the text of the
guideline itself but rather amended the commentary by
adding a new application note to explain what it means
to be an organizer, leader, manager or supervisor.
Prior to the amendment some circuits (including ours)
had concluded that a defendant’s control over
property, assets, or criminal activities could trigger
U.S.S.G. 3B1.1(b)’s enhancement. Other circuits,
however, had concluded that the enhancement was
warranted only when the defendant controlled one or
more participants in the criminal endeavor. The 1993
amendment explains that an increased sentence may be
warranted in either case, though an enhancement (as
opposed to an upward departure) is the appropriate
vehicle only for those defendants who controlled
people.
Id. at 1110.
In further support of his objection, Movant cites to two
cases originating in the Southern District of West Virginia,
United States v. Cameron, 573 F.3d 179 (4th Cir. 2009), and
United States v. Sayles, 296 F.3d 219 (4th Cir. 2002).
In
Cameron, the Fourth Circuit found error in a sentence where the
district court applied a 3B1.1 enhancement, finding that there
was no evidence that the defendant planned or organized the
operation, exercised any control or authority over other
participants, recruited accomplices into the operation, or
claimed any share of the fruits of the criminal activity.
F.3d at 186.
573
In Sayles, the Fourth Circuit reversed the
district court’s application of 3B1.1 enhancements, holding that
“being a buyer and seller of Illegal drugs, even in league with
more than five or more other persons, does not establish that a
15
defendant has functioned as an ‘organizer, leader, manager, or
supervisor’ of criminal activity.”
Id. at 185.
The Movant’s argument under this objection is that it is
“arbitrary and capricious that the [PF&R] would insinuate an
upward departure when the judge did not depart upwardly at the
original sentencing.”
In fact, the Defendant’s Pre-Sentencing
Report recommended an upward adjustment under § 3B1.1(b) based
on the probation officer’s belief that Spencer “was a
manager/supervisor of criminal activity” and that the
application of U.S.S.G. 3B1.1(b) is appropriate.
at p. 9).
(Doc. No. 1166
Judge Haden did impose a three-level enhancement for
an aggravated role in the offense; the court also granted a
three-level reduction for acceptance of responsibility.
(Doc.
No. 488 at 409-12).
Additionally, it was established by a preponderance of the
evidence at the sentencing hearing that the Movant had exercised
managerial responsibility during the conspiracy.
Counsel
Henderson cross-examined each of the government’s witnesses
concerning Defendant’s alleged activities in the course of the
conspiracy.
(See Doc. No. 488 at 402-405).
Mr. Henderson’s
objection and argument was consistent with the amendment to §
3B1.1 and the holding in Capers.
The Movant has not
demonstrated that Henderson’s representation fell below an
objective standard of reasonableness; nor is there evidence that
16
“but for” Henderson’s conduct, he would not have pled guilty and
would have insisted on going to trial.
For these reasons, the
court FINDS that Movant has not shown that Mr. Henderson
provided ineffective assistance of counsel in violation of his
Sixth Amendment rights, and no relief is warranted on this
ground.
Objection II. “Counsels were ineffective for not
objecting to the district court’s misrepresentation of
the statutory mandatory minimum and maximum penalties
alleged in the indictment.”
The Movant claims that his lawyers provided ineffective
assistance of counsel by failing to inform him of the minimum
and maximum punishments when no drugs were charged in the
indictment.
(Doc. No. 1222 at pg. 6).
The Movant asserts that
the statutory minimum and maximum punishment to which he was
exposed was misrepresented at the plea hearing, and that his
lawyers should have objected to and challenged this
misrepresentation.
Mr. Spencer’s objection is limited to Mr.
Gillooly and Mr. Mooney.4
Id.
To address this claim, the first issue is whether there was
a misrepresentation of the statutory maximums and minimums.
To
be certain, the law in the Fourth Circuit was changing during
4
The Movant concedes that this argument is frivolous with respect
to Mr. Henderson: “[The argument might be frivolous] in light
of [sic; in regards to] Mr. Henderson and the timeline of
Jones.” Doc. No. 1222 at pg. 6. The Movant finds error with
the Magistrate Judge’s attempt to “stretch” the Jones timeline
holding to his lawyers Gillooly and Mooney.
17
the time the Defendant and his co-conspirators were entering
guilty pleas.
The Defendant entered his guilty plea after the
Supreme Court rendered its decision in Jones v. United States,
526 U.S. 227 (1999), which was the precursor to the decisions in
Apprendi, Blakely and Booker.
After Apprendi was decided, but before the decisions in
Blakely and Booker, it was the standard practice of the court,
where there was no drug quantity pled in an indictment, to
sentence a defendant under Section 841(b)(1)(C), which provided
no mandatory minimum sentence and had a maximum sentence of 20
years.
In United States v. Promise, the Fourth Circuit held
that an “individual who possesses with intent to distribute an
identifiable but unspecified quantity of [controlled
substances]” faces a maximum sentence of twenty years under that
section, and that a “sentence exceeding twenty years may be
imposed only upon an additional finding that the offense
involved a specific threshold quantity of a schedule I or II
controlled substance.”
266 F.3d 150, 156 (4th Cir. 2001)(en
banc).
In United States v. Cotton, 261 F.3d 397, 404 (4th Cir.
2001), the court determined that an indictment was “mandatory
and jurisdictional” and that an indictment that contained no
specified drug quantity only granted the district court
jurisdiction to try and sentence the defendant under the
18
baseline drug trafficking offense in section 841(b)(1)(C).
In
2002, the Fourth Circuit issued its opinion in United States v.
Martinez, 277 F.3d 517 (4th Cir. 2002) in which the court held,
inter alia, that based upon the decisions in Apprendi, Promise
and Cotton, the district court erred in advising a defendant at
his guilty plea hearing that he faced a mandatory minimum
sentence of ten years and a maximum sentence of life in prison,
where the defendant’s indictment did not specify a drug
quantity.
The Martinez court further held that the district
court possessed jurisdiction only over Martinez for a conspiracy
to violate section 841(b)(1)(C), and that the court could only
conduct plea and sentencing proceedings for that offense.
Id.
at 529.
Mr. Spencer admitted during his plea colloquy that the
conspiracy involved five kilograms or more of cocaine powder or
50 grams or more of cocaine base.
Because he admitted to the
essential element of the charge during his plea, the minimum ten
year and maximum life sentence was triggered.
Defendant also
repeatedly agreed that he understood that he was exposed to the
minimum and maximum penalty under this section.
Based upon the
settled law at the time, Spencer was properly advised of the
minimum and maximum sentences to which he was exposed,
notwithstanding the fact that the superseding indictment
contained no drug quantity, and Defendant has not shown that
19
counsel’s conduct fell below an objective standard of
reasonableness under the circumstances.
The court has
recognized this fact in denying a similar claim raised by a codefendant, Calvin Dyess.
Dyess v. United States, Case No. 2:08-
cv-00849.
Nor was Mr. Gillooly’s performance deficient on this issue.
Defendant asserts that had Mr. Gillooly challenged the
Defendant’s guilty plea on this issue, he may have been able to
withdraw his guilty plea.
There is ample evidence that counsel
Gillooly investigated the case law and gave the Defendant the
benefit of his professional advice.
(Doc. No. 1145 at 35-36).
The court is convinced that there was no Sixth Amendment
violation, and Defendant was properly advised of the minimum and
maximum sentences to which he was exposed, based upon his
voluntary admissions during his plea colloquy that the
conspiracy involved a quantity of more than 5 kg of cocaine and
50 grams or more of cocaine base.5
A motion by Mr. Gillooly
would have been frivolous, which Mr. Gillooly likely realized.
Fourth Circuit precedent supports that conclusion by Mr.
Gillooly.
In United States v. Cotton, the Fourth Circuit held
5
The Movant takes issue with this fact in his Objections. He
notes that Mr. Henderson told him to “simply say yes to
everything so as not to make Judge Haden or the Government
upset,” insinuating that he would not have admitted to these
quantities of drugs had he been correctly informed that he was
facing a maximum of only 20 years with no mandatory minimum.
20
that an indictment that omits a drug quantity is sufficient to
sustain a conviction and the failure of the Court to inform the
Defendant of a drug quantity at the plea hearing is no reason to
allow withdrawal of the plea.
293 F.2d at 687 n.16.
Based on
the foregoing, the Movant has failed to show that counsel
Gillooly’s performance fell below a standard of objective
reasonableness.
Finally, the Movant criticizes counsel Mooney’s performance
on appeal:
“Movant wishes to preserve for appeal the fact that
counsel Mooney was in the best position to make the challenge to
the guilty plea on Movant’s direct appeal. . . Moreover, the
Magistrate has totally discounted the attached disciplinary
hearing of counsel Mooney effectively suspending her from
practicing law.”6
The fact that Ms. Mooney was reprimanded in a
separate case “around the same time” that she was representing
Mr. Spencer does not adequately show that Ms. Mooney’s
performance in Mr. Spencer’s case fell below the standard of
objective reasonableness, and the Magistrate Judge did not err
in failing to consider it.
For these reasons, the court FINDS
that the defendant did not receive ineffective assistance of
6
Spencer attached to his objections a record of a disciplinary
action against Ms. Mooney, which was filed in 2009. (Doc. No.
1222 at p. 21). The attachment shows Ms. Mooney being
disciplined by the West Virginia Supreme Court for a lack of
communication and diligence in an unrelated case, as well as her
contempt of court order.
21
counsel from Mr. Henderson, Mr. Gillooly, or Ms. Mooney.
As
such, he is not entitled to relief on this ground.
Objection III. “Counsel Henderson was ineffective at
sentencing for failing to object to the drug quantity
attributable to Movant Spencer at sentencing.”
In his third objection, the Movant objects to the fact
“that the Magistrate judge would adopt the government’s stance
verbatim” and asserts that Magistrate Judge Stanley’s finding
“do[es] not contain a scintilla of authority.”
The Movant
specifically finds fault with the assertion that Mr. Henderson
made a strategic decision not to object to the relevant conduct
determination, thus securing a 3-level reduction in defendant’s
guideline for acceptance of responsibility.
The government
relied on the fact that Defendant admitted to being involved
with 12-17 kilograms of powder cocaine, which the Movant now
denies.
The issue is whether Mr. Henderson’s conduct during the
sentencing phase fell below an objective standard of
reasonableness.
The court finds that it did not.
Mr. Henderson
may have made a strategic decision not to challenge the quantity
in order to secure the acceptance of responsibility three-level
reduction.
It is also possible that because he did not know the
exact quantities, and based on the fact that Mr. Spencer had
admitted to dealing a certain amount of drugs (at least 5 kg of
cocaine and 50 grams of cocaine base), he made a strategic
22
decision not to call attention to the admitted quantity of drugs
by objecting to the lower quantity considered at sentencing.
The Movant had the burden to show that Mr. Henderson’s conduct
fell below an objective standard of reasonableness, and he has
not met that burden.
The Movant’s assertion that he would have
only had a base level of 12 rather than 38 runs contrary to his
own admitted quantity of drugs.
For these reasons, the court
denies the defendant’s objections and finds that Mr. Spencer is
not entitled to relief on this ground.
Objection IV. “Mr. Gillooly was ineffective for
failing to investigate and interview witnesses prior
to the 2004 evidentiary hearing and calling those
witnesses at the hearing to dispute the drug
quantity.”
The Movant’s Fourth objection alleges that Thomas Gillooly,
who represented Defendant during the remand proceedings, failed
to investigate and interview witnesses prior to the 2004
evidentiary hearing.
Mr. Gillooly’s Affidavit shows that he
attempted to interview and investigate prior to the evidentiary
hearing:
“defense counsel and I made strenuous and repeated
efforts to obtain interviews of the witnesses we thought should
be considered for the evidentiary hearing.
to talk to us or refused outright.”
Most were reluctant
(Doc. No. 1145).
The
Movant takes issue with well-settled law that the failure to
call witnesses is a tactical decision which generally does not
amount to ineffective assistance of counsel.
23
Goodson v. United
States, 564 F.2d 1071, 1072 (4th Cir. 1977).
Mr. Gillooly’s
affidavit shows that he did investigate and attempt to secure
alternate witnesses, which were unwilling to testify.
The
refusal to subpoena witnesses when he did not know what the
witnesses would say at the hearing certainly falls within a
tactical decision by counsel.
Movant has failed to show that Mr. Gillooly’s performance
in failing to call witnesses at the evidentiary hearing falls
below an objective standard of reasonableness.
As such, the
court finds that he is not entitled to relief on this ground.
Objection V. “The District Court erred in not
resentencing Movant Spencer in light of Apprendi and
Booker.”
In this objection, the Movant concedes that his Apprendi
error is moot based on his resentencing under 18 U.S.C. §
3582(c)(2) to 168 months.
However, he asserts that his Booker
argument warrants further consideration.
He objects to the fact
that he was never given an opportunity to present evidence based
on the § 3553(a) factors when this court stated during the
limited evidentiary hearing that it would have imposed the same
sentence as Judge Haden’s original sentence.
Mr. Spencer relies
heavily upon the dissent during his direct appeal.
It is clear from the record that the Fourth Circuit
considered this exact argument during Mr. Spencer’s direct
24
appeal and ultimately upheld this court’s ruling.
The majority
opinion states:
Any further proceeding designed to correct the Booker
error in the sentences would be little more than an
empty formality, for the sentence the district court
would impose on remand is a foregone conclusion. At
the conclusion of the most recent evidentiary hearing
in this case, the district court (Judge Faber)
possessed as much or more reliable information about
the defendants and the details of their offenses as
had the sentencing court (Judge Haden). The district
court was thus entitled to conclude that the sentences
were reasonable and justified by abundant proof. We
therefore decide that the defendants are not entitled
to resentencing under Booker despite the Sixth
Amendment error, or otherwise, as the defendants’
sentences were not “longer than that to which they
would otherwise be subject.” Hughes, 401 F.3d at 548.
478 F.3d at 242 (internal citations omitted).
Because the
defendant has already raised this issue before the appellate
courts, and because the Fourth Circuit has already held that any
error on this issue was harmless, the court FINDS that defendant
is not entitled to relief on this objection concerning the
alleged error in failing to resentence Mr. Spencer.
Additionally, the court has considered whether to grant a
certificate of appealability in this case.
See 28 U.S.C. §
2253(c). To grant a certificate of appealability, there must be
a substantial showing of the denial of a constitutional right by
demonstrating that the issues raised are debatable among
jurists, that a court could resolve the issues differently, or
that the questions deserve further proceedings.
25
28 U.S.C. §
2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).
The standard
is satisfied only upon a showing that reasonable jurists would
find that any assessment of the constitutional claims is
debatable or wrong and that any dispositive procedural ruling is
likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
The
court concludes that the governing standard is not satisfied in
this instance.
Accordingly, the court DENIES a certificate of
appealability.
CONCLUSION
For the reasons stated above, the court ADOPTS the PF&R,
OVERRULES Movant’s objections to the PF&R and DENIES Mr.
Spencer’s motion under 28 U.S.C. § 2255.
This matter is removed
from the court’s active docket.
The court further DIRECTS the Clerk to send a copy of this
Memorandum Opinion and Order to the defendant pro se, and
counsel of record.
IT IS SO ORDERED on this 29th day of March, 2012.
Enter:
David A. Faber
Senior United States District Judge
26
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