Spicer v. Fisher, CIVIL ACTION NO: 1:13-cv-377-LG-JCG
| Decision Date | 16 August 2016 |
| Docket Number | CIVIL ACTION NO: 1:13-cv-377-LG-JCG |
| Parties | FRED STANFORD SPICER, a prisoner incarcerated at the Mississippi State Penitentiary in Parchman, Mississippi PETITIONER v. MARSHALL L. FISHER, Commissioner, 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 a Petition for Writ of Habeas Corpus (ECF No. 1) pursuant to 28 U.S.C. § 2254, filed by Fred Stanford Spicer with an accompanying Memorandum in Support (ECF No. 2) on September 26, 2013. Mr. Spicer is currently incarcerated at the Mississippi State Penitentiary in Parchman, Mississippi. After much delay, Respondents Marshall L. Fisher and Jim Hood filed a Response (ECF No. 28) on November 24, 2015. Petitioner was granted leave to file a reply (ECF No. 30) and thereafter filed a Reply (ECF No. 35) on February 15, 2016. Having considered the relevant law, the record, and the submission of the parties, the undersigned recommends that because Mr. Spicer has not exhausted his claims, he should be required to return to the Mississippi Supreme Court in order to present newly discovered evidence. Furthermore, this case should be stayed pending a final adjudication of his request to file a successive petition in Mississippi state court.
On April 30, 2003, Fred Spicer was found guilty of the capital murder of Edmund Hebert in the Circuit Court of George County, Mississippi. A unanimous jury sentenced him to death on May 1, 2003. Spicer appealed his verdict and his sentence, both of which were affirmed by the Mississippi Supreme Court. Spicer v. State, 921 So. 2d 292 (Miss. 2006). He then filed for postconviction relief, and the Mississippi Supreme Court granted his petition in part. Specifically, the court found that Spicer had made a sufficient showing of his trial counsel's ineffectiveness at the sentencing phase of his trial to be entitled to an evidentiary hearing on that issue. Spicer was denied relief on all of his other claims.
An evidentiary hearing was held in the Circuit Court of George County on March 15-16, 2011, where substantial additional evidence was introduced in support of Spicer's ineffective assistance claim. After taking the case under advisement, the trial court entered a Memorandum Decision and Order on February 22, 2012, finding that the mitigation evidence offered at the sentencing phase of Spicer's original trial was "woefully inadequate to allow the jury to give individualized consideration of Spicer's background and weigh the merits of imposing a sentence less than death." (ECF No. 1-8, Spicer v. Mississippi, No. 2009-0266(3) (Miss. George Cty. Cir. Ct. Feb. 22, 2012), at 12). For that reason, the court vacated and set aside Spicer's sentence of death. The court held another hearing on September 27, 2012, during which the State announced in open court that it waived seeking the imposition of the death penalty. (ECF No. 1-9, State v. Spicer, No. 20-2002-10,006(3) (Miss. George Cty. Cir. Ct. Sept. 27, 2012)). Because only one other sentence was available under the law, Spicer was sentenced to life imprisonment without the possibility of parole. Id.
Spicer did not seek further review of his case in state court, instead filing the instant Petition for a Writ of Habeas Corpus with this Court. In his Petition, Spicer relies on the same new evidence offered in the trial court in arguing that he is entitled to habeas relief because his trial counsel was also ineffective at the guilt phase of his trial and the Mississippi Supreme Court unreasonably denied him relief on this issue. Spicer also argues that the state court unreasonably denied him relief on his claim of cumulative error. Alternatively, Spicer argues that he is entitled to relief on these claims even without resorting to the new evidence presented in the Circuit Court.
For the reasons more fully set out below, the undersigned finds that Spicer has not exhausted his claims regarding ineffective assistance of counsel during the guilt phase of his trial, and he must return to state court in order to exhaust these claims.
At the time of his death, Edmond Hebert was living in a small trailer in Benndale, Mississippi, near Lucedale, in George County. His mother and stepfather lived in a trailer a few blocks away. Hebert worked various jobs as a sandblaster and painter, but his main occupation was laying linoleum flooring. He was working as a roofer when he was killed in October 2001. Among Hebert's possessions were agreen Nissan pickup truck and a sword that hung in a display on a wall of his trailer.
A few weeks before he was killed, Hebert invited Fred Spicer to live with him in his trailer. Hebert approached his boss about giving Spicer a job on the roofing crew, and his boss, Johnny Butler, hired Spicer. People who knew Hebert became accustomed to seeing him with Spicer, and, on occasion, Spicer was seen driving Hebert's truck alone.
On or about October 11, 2001 was the last time Butler saw Hebert. It was the end of a workday, and Butler gave both Hebert and Spicer their paychecks. Later that evening, Hebert and Spicer showed up at Larry Beauchamp's house for beer and conversation. Beauchamp had known Hebert for a couple of years but had only met Spicer after he moved into Hebert's trailer. At some point in the evening, the topic of conversation turned to the possibility that Hebert might have to leave George County to return to Louisiana; he asked Beauchamp to take care of his dog in case he had to leave. Spicer said that he would like to have the dog, but Hebert responded that he had already given it to Beauchamp. According to Beauchamp, this exchange soured Spicer's attitude. Hebert and Spicer then left Beauchamp's trailer an hour or so later in Hebert's truck.
When neither Hebert nor Spicer appeared at work the next day, Butler called Hebert's mother, Patricia Elder, to tell her that her son was fired. Mrs. Elder went to Hebert's trailer, but his truck was not there; she assumed he would not be either.She returned to the trailer two more times that day, but the truck was not present, so she returned to her trailer.
On October 12, Sergeant Brian White, a deputy with the Jackson County Sheriff's Department, was driving on Market Street in Pascagoula when he noticed a green Nissan pickup truck facing him at the intersection of Market and Highway 90. As he was turning onto Highway 90, Deputy White noticed that the truck's driver, a white male, "put a cold stare" on him. The truck also turned onto Highway 90, and the driver kept staring at Deputy White. At the same time, a white female passenger put her hand over her face and tried to squat down in the seat. Deputy White changed lanes to follow the truck, and he noticed that the driver continued to look at him through the rear-view mirror. While Deputy White called in the registration to dispatch, the truck moved from the far left-hand lane of Highway 90 to the far right-hand lane and turned into a restaurant's parking lot, all without a turn signal. Traffic prevented Deputy White from changing lanes to turn into the parking lot, so he pulled into another parking lot and waited. Only a few seconds later, the truck passed that lot, but Deputy White was again prevented by traffic from following it. He saw the truck turn into a motel parking lot. When Deputy White was finally able to pull into that lot, he saw that the two individuals had gotten out of the truck and were trying to reach places where they could hide from him.
Deputy White apprehended the driver, who refused to give his name and threw away the keys to the truck he had been driving. The driver denied tossing thekeys and again refused to give the deputy any information. At about that time, dispatch notified Deputy White that the truck was registered to Edmond Hebert. The driver denied being Hebert. White turned the driver over to another officer and went to look for the female passenger, who he found hiding behind a garbage can. The passenger was Angel Hinger, and she identified the driver as Freddie Spicer.
Deputy White arrested Spicer on three moving violations and conducted an inventory search of the truck. Officers found a camouflage jacket and a sword. Paperwork inside the truck indicated that it was registered to Edmond Hebert. The officers ran Spicer's name through the National Crime Information Center database, which returned a valid "hit" out of Franklin, Massachusetts for burglary. After transporting Spicer to the Detention Center, Deputy White asked a detective to call the George County Sheriff's Department and ask them to contact the vehicle's owner.
George County Deputy John Hilbun was accordingly dispatched to Hebert's residence for a welfare check. Deputy Hilbun had trouble finding the address, so he stopped to ask directions from a man who turned out to be Hebert's stepfather, James Elder. Elder and Deputy Hilbun went to Hebert's trailer together, and Elder forced the door open. Inside, they found Hebert's body on the couch in his living room, covered with a blanket. Elder removed a tool box sitting on the blanket and uncovered Hebert's face. Hebert was lying on his back. There were bloodstains on the walls, the door, the ceiling, and the floor of the living room, as well as on a lampshade. According to an expert who testified for the State, the blood stains werecast-off blood stains, consistent with blunt force trauma or a beating. Once notified that Hebert was dead, Jackson County officers seized Spicer's clothing.
The pathologist who performed the autopsy testified that he found numerous injuries on Hebert's body, including a three and one-half inch long cut over his forehead, bruises around both eyes, a cut above the right eye and the right eyelid, and an abrasion over the bridge of his nose. According to the pathologist, the cuts could have...
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