Spicer v. Cain
| Decision Date | 29 September 2021 |
| Docket Number | 18-60791 |
| Parties | Fred Sanford Spicer, Jr., a prisoner incarcerated at the Mississippi State Penitentiary in Parchman, Mississippi, Petitioner-Appellant, v. Burl Cain, Commissioner, Mississippi Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:13-CV-377
Before King, Dennis, and Ho, Circuit Judges. [*]
Petitioner Fred Spicer, Jr., was convicted of capital murder and sentenced to death. Believing his conviction was the product of his counsel's ineffective assistance at both the guilt and sentencing phases of his trial, Spicer sought post-conviction relief. After a series of state-court proceedings, the federal district court concluded that Spicer failed to establish prejudice within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), and therefore denied his application for a writ of habeas corpus. For the reasons that follow, we AFFIRM.
Almost two decades ago, a jury convicted petitioner Fred Spicer Jr., of capital murder and sentenced him to death. On direct appeal, the Mississippi Supreme Court affirmed, see Spicer v. State, 921 So.2d 292, 300-02 (Miss. 2006), and the United States Supreme Court denied certiorari. Spicer v. Mississippi, 549 U.S. 993 (2006).
Believing his conviction was the product of counsel's ineffective assistance at both the guilt and sentencing phases of his trial, Spicer petitioned the Mississippi Supreme Court for post-conviction relief in 2006. And, Spicer's petition was successful in part: the court granted an evidentiary hearing on his sentencing-phase ineffective assistance of counsel claim. Nevertheless, the court denied Spicer's guilt-phase ineffective assistance of counsel claim without a hearing. See Spicer v. State, 973 So.2d 184, 192-204 (2007). It is this claim that we refer to throughout this opinion as Spicer's 2006 guilt-phase ineffective assistance claim.
The two-day evidentiary hearing on his sentencing-phase claim- prior to which Spicer's trial attorneys were deposed and at which both attorneys testified-precipitated a vacatur of Spicer's death sentence, and, in 2007, he was resentenced to life in prison without the possibility of parole.
Following these state court proceedings, Spicer petitioned the United States District Court for the Southern District of Mississippi for a writ of habeas corpus. With the benefit of testimony gathered during the above- mentioned evidentiary hearing, Spicer argued again that he had received ineffective assistance throughout the guilt phase of his trial.
In light of the hearing testimony, the federal district court determined that Spicer's 2006 guilt-phase ineffective assistance claim was fundamentally altered and, thus unexhausted. As a consequence, the district court stayed Spicer's federal habeas proceedings and ordered him to present his guilt-phase ineffective assistance claim supported by the additional evidence, to the Mississippi Supreme Court for consideration in the first instance. Spicer v. Fisher, No. 1:13CV377-LG-JCG, 2016 WL 5137759, at *4 (S.D.Miss. Sept. 21, 2016).
In keeping with this directive, Spicer filed another petition for post-conviction relief, in 2016, asking the Mississippi Supreme Court again to review his guilt-phase ineffective assistance claim, this time presenting the evidence developed at the hearing. (We refer to this claim throughout this opinion as Spicer's 2016 guilt-phase ineffective assistance claim.) In a two-page summary order, the Mississippi Supreme Court declined to do so.
Spicer then returned to federal district court; the district court lifted the stay and reviewed Spicer's guilt-phase ineffective assistance claim on the merits-hearing testimony included. It concluded that Spicer failed to establish prejudice within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). On that basis, the district court denied habeas relief and a Certificate of Appealability ("COA"). Spicer v. Fisher, No. 1:13CV377LG-JCG, 2018 WL 4976816 (S.D.Miss. Oct. 15, 2018).
We granted Spicer's motion for a COA to authorize further review of his claim that trial counsel was ineffective because counsel failed to present exculpatory forensic evidence, failed to otherwise investigate his case, and failed to consult with him prior to trial.
To begin, we establish the scope of our jurisdiction over this appeal by assessing whether our COA is broad enough to encompass Spicer's guilt-phase ineffective assistance claim as presented to the Mississippi Supreme Court in 2006 and 2016. Because we find that it is, we proceed to address both iterations of this claim, first concluding that the 2016 claim is procedurally barred and next that the 2006 claim was properly denied. Accordingly, we AFFIRM.
As a threshold matter, we recognize that our review in this posture is limited to the issues as to which a COA was granted. See 28 U.S.C. § 2253(c); Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998).
In this case, our COA grant concluded that reasonable jurists could debate whether Spicer's claim for "ineffective assistance of counsel based on trial counsel's failure to consult with him, investigate the case, and present exculpatory forensic evidence" was correctly resolved.
Arguments to the contrary notwithstanding, this grant is broad enough to cover Spicer's guilt-phase ineffective assistance claim as presented in 2016 and 2006. Although our COA left open for debate "the appropriate scope of the § 2254 record," all evidence included in support of the 2006 claim was also included in support of the 2016 claim, which undoubtedly is properly before us.[1] After all, it was the 2016 claim-along with all accompanying evidence-that the district court expressly reviewed and subsequently denied in the order from which Spicer appeals. And, it is the scope of the evidentiary record that differentiates Spicer's two claims, with the 2016 record encompassing the entirety of the 2006 record, along with some additional testimony.[2]
Accordingly, Spicer's claim, as presented in 2006, falls squarely within the description of the issue identified for review by our COA. See 28 U.S.C. § 2253(c)(2).[3] Our order does not explicitly exclude review of the 2006 claim, nor does it otherwise seek to define the evidentiary contours of this appeal in a way that would preclude us from addressing it.
In short, because the COA's scope is broad enough to encompass Spicer's 2016 guilt-phase ineffective assistance of counsel claims, it is necessarily broad enough to include his 2006 claim, and we therefore have jurisdiction to consider them both on appeal. Cf. Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997) ().
Having established as much, we address only the 2006 claim on the merits. This is so because, as we explain below, the 2016 claim is procedurally barred.
When-at the federal district court's behest-Spicer presented his 2016 guilt-phase ineffective assistance claim to the Mississippi Supreme Court, that court's written order disposed of it on procedural grounds. Thus, respondent argues, Spicer's 2016 guilt-phase ineffective assistance claim is procedurally defaulted, and this default bars our review. We agree.
Questions of procedural default are assessed de novo on appeal. See Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). The procedural default doctrine precludes federal habeas review where the last state court to consider the claim based its denial of relief on an independent and adequate state-law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This procedural bar may, however, be overcome by "demonstrat[ing] cause for the default and actual prejudice as a result of the alleged violation of federal law." Id. at 750.
To satisfy the "independent" and "adequate" requirements, a state court's dismissal must clearly and expressly indicate that it rests on a state procedural bar, and the bar must be strictly or regularly followed by state courts and applied to the vast majority of similar claims. Amos, 61 F.3d at 338-39. To that end, the Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997) (quoting Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996)).
In this case, the Mississippi Supreme Court explicitly denied Spicer's 2016 petition on the grounds that it was time barred and successive under state procedural laws, Mississippi Code §§ 99-39-5(2) and 99-39-27(9). There is no indication from the face of the court's order that it reviewed the merits of Spicer's claim nor that it relied on any federal constitutional law in denying his claim. Indeed, the court's denial of relief appears to rely "clearly and expressly" on state procedural bars, Amos, 61 F.3d at 338, and we have routinely held that Mississippi's post-conviction procedural bars for untimely petitions and successive petitions are independent and adequate state procedural grounds in this context, see Johnson v. Puckett, 176 F.3d 809, 815 n.3 (5th Cir. 1999) (time bar); Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir. 1998) (successive bar of § 99-39-23(6)).[4]
Certainly the Mississippi Supreme Court has recognized a fundamental rights exception to its procedural bars; and, indeed, in his 2016 petition, Spicer argued to that court that this exception should cover his Sixth...
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