Myers v. United States, Civil Action Nos. 3:13-17705

• Decision Date: 10 May 2016
• Docket Number: Civil Action Nos. 3:13-17705,Criminal Action No. 3:00-00062
• Court: U.S. District Court — Southern District of West Virginia
• Parties: SPENCER T. MYERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

SPENCER T. MYERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action Nos. 3:13-17705

Criminal Action No. 3:00-00062

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

May 10, 2016

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Petitioner's Petition for Writ of Error Audita Querela.¹ (Document No. 156.) By Standing Order, this matter was referred to the undersigned United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 158.) By Order entered on January 6, 2016, the above case was referred to the undersigned for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 166.)

FACTUAL BACKGROUND

1. Criminal No. 3:00-0062:

By Indictment filed on March 21, 2000, Petitioner was charged with one count of Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1) (Count 1); one count of Distribution of Cocaine Base, a Scheduled II Controlled Substance, in violation of 18 U.S.C. § 841(a)(1) (Count 2); one count of Possession of a FirearmDuring and in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3); one count of Knowingly Possessing a Firearm with an Obliterated Serial Number in violation of 18 U.S.C. §§ 922(k) and (24(a)(1) (Count 4); and one count of Corruptly Persuading Another to Hinder an Investigation in violation of 18 U.S.C. § 1512(b)(3). (Criminal Action No. 3:00-00062, Document No. 1.) Following a jury trial conducted on June 21 - 22, 2000, Petitioner was convicted of all five Counts. (Id., Document Nos. 39 and 46.) A Presentence Investigation Report was prepared. (Id., Document No. 60.) The District Court determined that Petitioner had a Base Offense Level of 43, and a Total Offense Level of 47, the Court having applied the following: (1) a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice; and (2) a two-level enhancement pursuant to U.S.S.G. § 3D1.4 for a multiple count adjustment.² (Id.) The District Court sentenced Petitioner on September 11, 2000, to a term imprisonment of life as to Count 1, 240 months as to Count 2, 60 Months as to Count 4,and 120 months as to Count 5. (Id., Document Nos. 61.) The District Court directed that Counts 2, 4, 5, and 6 were to run concurrently with Count 1, and Count 3 was to run consecutively. (Id.) The District Court further imposed a five-year term of supervised release, imposed a $500.00 special assessment, and directed Petitioner to pay $5,464.95 in restitution. (Id.)

On September 20, 2000, Petitioner, by counsel, filed a Notice of Appeal. (Id., Document No. 63.) In his appeal, Petitioner argued as follows: (1) The inclusion of a thirteenth juror in jury deliberations constituted a glaring procedural error that warranted an immediate reversal and remand; (2) The District Court abused its discretion by allowing the introduction and repeated useof extremely prejudicial evidence at trial; (3) The District Court committed reversible error by failing to specifically instruct the jury that it must unanimously agree upon which of four drug transactions in evidence satisfied the distribution element necessary for a conviction on the Count Two charge of drug trafficking and on the Count Three charge of possession and use of a firearm in furtherance of drug trafficking; (4) Title 18 U.S.C. § 924(c)(1)(A) did not apply to Petitioner's use of a firearm; (5) The Court's imposition of a life sentence without parole based on his conviction under Count One for possession of a firearm by a convicted felon was disproportionate and in violation of the Eighth Amendment; and (6) The District Court erred by allowing victim testimony from Shilot's wife and mother and in imposing restitution because he was not convicted of a "crime of violence" within the meaning of Federal Rules of Criminal Procedure 32(c)(3)(E). On February 7, 2002, the Fourth Circuit Court of Appeals affirmed Petitioner's convictions and sentences. United States v. Myers, 280 F.3d 407 (4^th Cir. 2002). Petitioner filed a petition for certiorari in the United States Supreme Court, which was denied on October 7, 2002. Myers v. United States, 537 U.S. 852, 123 S.Ct. 53, 154 L.Ed.2d 84 (2002).

2. Section 2255 Motion:

On October 1, 2003, Petitioner filed his first Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Civil Action 3:03-2220, Document No. 80.) As grounds for habeas relief, Petitioner asserted that trial counsel acted ineffectively based on the following: (1) "Counsel was ineffective in securing [Petitioner] a full and fair suppression hearing;" (2) "Counsel failed to object and challenge the District Court's ruling that evidence in the automobile was secured by a valid search warrant;" (3) "Counsel failed to object and challenge the validity of the search warrant:' (4) "Counsel failed to object and challenge thearrest for a lack of probable cause;" (5) "Counsel failed to object and challenge post-arrest and pre-Miranda statements;" (6) "Counsel failed to investigate, interview and present witnesses and evidence in favor of suppressing unlawfully obtained evidence from automobile." (Id.) By Proposed Findings and Recommendation entered on March 21, 2005, United States Magistrate Judge Maurice G. Taylor recommended that Petitioner's Section 2255 Motion be denied. (Id., Document No. 89.) By Memorandum Opinion and Judgment Order entered on August 11, 2005, United States District Judge Robert C. Chambers adopted Judge Taylor's recommendation and denied Petitioner's Section 2255 Motion. (Id., Document Nos. 91 and 92.) Petitioner filed a Notice of Appeal on October 13, 2005. (Id., Document No. 93.) On September 19, 2008, the Fourth Circuit affirmed in part and dismissed in part.³ United States v. Myers, 294 Fed.Appx. 69 (4^th Cir. 2008)(per curiam opinion). On November 12, 2008, Petitioner filed a Petition for Rehearing and Rehearing En Banc. United States v. Myers, Case No. 05-7731 (4^th Cir.), Document No. 82. By Order entered on November 14, 2008, the Fourth Circuit denied Petitioner's Petition for Rehearing and Rehearing En Banc. Id., Document No. 83. On February 9, 2009, Petitioner filed a Motion to Reconsider. Id., Document No. 84. By Order entered on March 17, 2009, the Fourth Circuit denied Petitioner's Motion to Reconsider. Id., Document No. 86.

3. First Section 2241 Petition:

On February 15, 2013, Petitioner filed in the Northern District of West Virginia a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the validity of his conviction. By Proposed Finding and Recommendation, United States Magistrate Judge John S. Kaull recommended that Petitioner's Section 2241 Petition be denied. Myers v. O'Brien, 2014 WL235523 (N.D.W.Va. January 22, 2014). By Memorandum Opinion and Judgment Order entered on January 22, 2014, United States District Judge Frederick P. Stamp, Jr. adopted Judge Kaull's recommendation and denied Petitioner's Section 2241 Petition. Id. On October 15, 2014, the Fourth Circuit dismissed Petitioner's appeal. Myers v. O'Brien, 584 Fed.Appx. 162 (4^th Cir. 2014)(per curiam opinion).

4. Writ of Error Audita Querela:

On July 8, 2013, Petitioner filed his instant Petition for Writ of Error Audita Querela pursuant to 28 U.S.C. § 1651. (Civil Action 3:13-17705, Document No. 156.) Citing Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Petitioner argues that he was erroneously designated an armed career criminal. (Id., pp. 4 - 5.) Petitioner explains that the District Court "misstat[ed] and misquot[ed] the criteria needed to impose a sentence under the A.C.C.A." (Id.) Specifically, Petitioner requests the Court "to turn its attention to the language supplied under U.S.S.G. 4A1.2(a)(2),⁴ which says that prior sentences imposed in unrelated casesare to be counted separately." (Id.) Petitioner argues that a number of his prior offenses were "related" resulting in him being "actually innocent of being an armed career criminal." (Id., pp. 5 - 6.) Petitioner, therefore, requests that this Court vacate his life sentence and remand this matter for re-sentencing.⁵ (Id., p. 6.) As an Exhibit, Petitioner attaches a copy of pertinent pages from his Sentencing Transcript. (Id., pp. 8 - 9.)

5. Motion Under 28 U.S.C. § 2244:

On September 13, 2013, Petitioner filed in the Fourth Circuit a "Motion Under 28 U.S.C. § 2244 for Order Authorizing District Court to Consider Second or Successive Application forRelief Under 28 U.S.C. §§ 2254 or 2255." In re: Spencer Myers, Case No. 13-377 (4^th Cir.), Document No. 2. Specifically, Petitioner sought permission to file a successive Section 2255 Motion based upon Alleyne. Petitioner argued that even though he was not convicted of murder, the "District Court imposed a life sentence based on the murder of Robert Shilot under § 2A1.1." Id. Thus, Petitioner argued that his sentence was invalid based upon Alleyne. Id. By Order entered on September 23, 2013, the Fourth Circuit denied Petitioner's Motion under 28 U.S.C. § 2244 for an order authorizing the District Court to consider a second or successive application for relief under 28 U.S.C. § 2255. Id., Document No. 4.

6. Second Section 2241 Petition:

On December 2, 2013, Petitioner filed in the Northern District of West Virginia his second Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Myers v. O'Brien, 2014 WL 2462984 (N.D.W.Va. June 2, 2014). Specifically, Petitioner challenged the validity of his conviction and sentence as imposed by the Southern District of West Virginia. Id. Citing Alleyne, Petitioner argued that he was improperly sentenced because the sentencing judge relied on findings in the Presentence Report concerning his prior...