Spicer v. Fisher
| Decision Date | 21 September 2016 |
| Docket Number | CAUSE NO. 1:13CV377-LG-JCG |
| Parties | FRED SANFORD SPICER, JR. PETITIONER v. MARSHALL L. FISHER, Commissioner of Mississippi Department of Corrections; and JIM HOOD, Attorney General of the State of Mississippi RESPONDENTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT is the Report and Recommendation [38] 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 [1] 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 thepenalty 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 toexhaust 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 billingrecords, 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 thathe was incompetent and unable to meaningfully consult with them. This argument is based on Mr. Hurt's testimony during...
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