United States District Court, S.D. West Virginia
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE
matter is assigned to the Honorable David A. Faber, Senior
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court is the petitioner, Jermonza Spencer's (hereinafter
“Spencer”) Petition under 28 U.S.C. § 2241
for a Writ of Habeas Corpus (ECF No. 1).
time he filed his petition, Spencer was incarcerated at the
Federal Correctional Institution at McDowell in Welch, West
Virginia. A review of the Federal Bureau of Prison's
(“BOP”) inmate locator on its website,
www.bop.gov, indicates that Spencer was released
from BOP custody on March 29, 2016, and he is now serving his
10-year term of supervised release. Although Spencer failed
to notify the court of updated contact information, the
undersigned's staff contacted his probation officer and
determined an address where this Proposed Findings and
Recommendation may be mailed to Spencer (which is provided at
the end of this document).
BACKGROUND AND PROCEDURAL HISTORY
criminal proceedings and direct appeals
October 9, 1998, Spencer was convicted in the United States
District Court for the Western District of Virginia of one
count of conspiracy to distribute cocaine base, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), and one count of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Jury Verdict, United States v.
Spencer, No. 3:97-cr-00082-JCT-2 (W.D. Va. Oct. 9,
1998), ECF No. 85. Spencer's superseding indictment did
not contain a specific drug quantity, id., ECF No.
56, and, apparently, the jury made no specific finding
concerning the drug quantity. Prior to Spencer's
conviction, the United States of America (hereinafter
“the government”) filed an Information to
establish Spencer's prior conviction(s), for the purpose
of seeking a statutory sentencing enhancement under 21 U.S.C.
§ 851. Id., ECF No. 71. On January 15, 1999,
Spencer was sentenced to serve a 360-month term of
imprisonment, followed by a 10-year term of supervised
release. Id., ECF No. 104.
Judgment was affirmed by the United States Court of Appeals
for the Fourth Circuit on November 22, 1999. United
States v. Spencer, 202 F.3d 261 (4th Cir.
Nov. 22, 1999). On appeal, Spencer asserted four claims of
error: (1) Spencer's Sixth Amendment right to
confrontation was violated by admission of an out-of-court
statement allegedly made by his non-testifying co-defendant;
(2) the government used testimony of witnesses whose
testimony had been procured by promising the possibility of
favorable sentencing treatment; (3) the government deprived
Spencer of his right to confront witnesses used against him
at sentencing to establish the drug weight for which he was
sentenced; and (4) the government failed to meet its burden
of proof at sentencing regarding drug weight. Spencer's
petition for a writ of certiorari was also denied.
Spencer v. United States, 121 S.Ct. 379 (Oct. 30,
other post-conviction filings
October 10, 2001, Spencer filed a Motion to Vacate, Set Aside
or Correct Sentence under 28 U.S.C. § 2255 in the United
States District Court for the Western District of Virginia.
Motion to Vacate, Set Aside or Correct Sentence, Spencer
v. United States, No. 7:01-cv-00776-JCT-gc (W.D. Va.
Oct. 10, 2001), ECF No. 2. That motion raised the following
grounds for relief: (1) The court violated Spencer's
Sixth Amendment rights by allowing the prosecution to
introduce “hearsay” statements made by his
co-defendant; (2) The court lacked subject matter
jurisdiction to sentence Spencer because the court relied
upon drug amounts that the evidence did not link to Spencer
except through hearsay statements of his co-defendant; (3)
The government offered no evidence at sentencing to prove the
drug quantity for which the court sentenced Spencer, thus
violating his Fifth Amendment right; (4) The prosecution
obtained the conspiracy conviction in violation of the Fifth
Amendment by using the out-of-court statement by
Spencer's co-defendant, by failing to file a timely
notice of the intent to seek a sentence enhancement under 21
U.S.C. § 851, and by failing to present evidence upon
which the court could make an independent finding of fact at
sentencing as to the drug amount attributable to Spencer; and
(5) Counsel provided ineffective assistance in failing to
raise the grounds for relief raised in the section 2255
motion. See Memorandum Opinion at 3-4, Spencer
v. United States, No. 01-cv-00776, ECF No. 15.
section 2255 motion was dismissed by the district court on
November 15, 2002. Id., ECF Nos. 15, 16.
Specifically, the district court found that grounds one
through four of the motion were raised, or should have been
raised, in Spencer's direct appeal and, thus, those
grounds were barred from consideration in his section 2255
motion. Id., ECF No. 15 at 4. The district court
further found that Spencer's claims of ineffective
assistance of counsel lacked merit. Id. at 4-9.
Spencer's subsequent appeal was dismissed on May 23,
2003, see United States v. Spencer, No. 03-6075
(4th Cir. May 23, 2003), and his petition for a
writ of certiorari was denied on November 17, 2003, see
United States v. Spencer, No. 03-6797 (U.S. Nov. 17,
thereafter successfully pursued two Motions to Reduce
Sentence under 18 U.S.C. § 3582(c), pursuant to
Amendments 706 and 782 to the United States Sentencing
Guidelines, and, ultimately, on June 16, 2015, his sentence
was reduced to 235 months. Order Granting Motion to Reduce
Sentence, United States v. Spencer, No.
3:97-cr-00082, ECF No. 237.
instant section 241 petition
instant section 2241 petition, which was filed on November
17, 2014, challenges Spencer's mandatory minimum sentence
under 21 U.S.C. § 841(b), and the enhancement thereof
under 21 U.S.C. § 851, based upon the Supreme
Court's decisions in United States v. Alleyne,
133 S.Ct. 2151 (2013), and United States v.
Descamps, 133 S.Ct. 2276 (2013). Specifically, Spencer
appears to be asserting that, because the drug quantity
attributed to him at sentencing was not pled in the
indictment and found beyond a reasonable doubt by the jury
(or stipulated to by Spencer), his mandatory minimum sentence
under the enhanced penalty provisions of 21 U.S.C. §
841(b)(1)(A) and (B) is unlawful in light of
Spencer asserts that the additional enhancement of his
sentence under 21 U.S.C. § 851, based upon his prior
Virginia conviction for possession of cocaine, was also
unlawful because such conviction was not addressed in the
indictment and considered by the jury. Additionally, Spencer
contends that the Virginia conviction does not qualify as a
predicate offense under § 851 in light of
Descamps. Spencer further contends that, due to
these intervening changes in the law, the erroneous increases
of his sentence without jury findings renders ...