Spencer v. United States
| Decision Date | 29 March 2012 |
| Docket Number | Civil Action No. 2:08-01390,Criminal No. 2:99-00012-03 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | ERIC DEWAYNE SPENCER, Movant, v. UNITED STATES OF AMERICA, Respondent. |
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. 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. (Docs. No. 1219, 1220). 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.
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-relatedoffenses. 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).
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. (Doc. No. 539 at 8-9, 15-16, 20). 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 andsell 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).
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 sentencinghearing 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).
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. (Doc. No. 498, 99-4566(L)). 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 hearingbased 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).
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 jurytrial 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...
To continue reading
Request your trial