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Spencer v. Rickard

United States District Court, S.D. West Virginia

February 15, 2018

JERMONZA SPENCER, Petitioner,
v.
BARBARA RICKARD, Warden, FCI McDowell, [1] Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE

         This 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).

         At the 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).

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Spencer's criminal proceedings and direct appeals

         On 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.[2] 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.

         Spencer's 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, 2000).[3]

         Spencer's other post-conviction filings

         On 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.

         The 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, 2003).

         Spencer 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.

         Spencer's instant section 241 petition

         The 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 Alleyne.

         Likewise, 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 ...


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