United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
Barry Spencer II, pro se, moves this court to vacate his
sentence pursuant to 28 U.S.C. § 2255.
April 23, 2015, a jury convicted petitioner on one count of
possession with intent to distribute crack cocaine and one
count of conspiring to do the same. See Docket #
Petitioner moved for a new trial, asserting, inter
alia, that the government violated its Brad v
obligations by withholding evidence regarding a drug
laboratory chemist's correction of a report. See
Docket # 227; cf Brady v. Maryland. 373 U.S. 83, 86
(1963). Ultimately, after extensive briefing and multiple
hearings, the court issued a detailed order finding no
Brad v violation and denying petitioner's
motion. See Docket # 275. Petitioner was thereafter
sentenced to 60 months imprisonment and three years of
supervised release. See Docket # 281.
appealed his conviction, but the First Circuit upheld it and
affirmed all of the challenged rulings. United States v.
Spencer. 873 F.3d 1, 17 (1st Cir. 2017). After the
Supreme Court of the United States denied his petition for
writ of certiorari, 138 S.Ct. 1030 (2018), petitioner timely
filed the pending motion to vacate. Aside from issues raised at
trial and on appeal, the primary ground for the motion is
ineffective assistance of counsel.
habeas relief is limited to "claims involving 'the
right to be released upon the ground that the sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum allowed by law, or is otherwise subject to
collateral attack."' Rogers v. United
States. 180 F.3d 349, 357 n.15 (1st Cir. 1999) (quoting
28 U.S.C. § 2255). Petitioner bears the burden of
establishing that he is entitled to relief. See ja\ To do so,
he must make "a sufficient showing of fundamental
unfairness." Singleton v. United States. 26
F.3d 233, 236 (1st Cir. 1994).
out a claim of counsel ineffectiveness warranting relief
under § 2255, petitioner "must show both deficient
performance by counsel and resulting prejudice."
Tevlin v. Spencer. 621 F.3d 59, 66 (1st Cir. 2010):
see Strickland v. Washington. 466 U.S. 668, 687
(1984). Strickland sets the standard: Deficient
performance is shown where "counsel's representation
fell below an objective standard of reasonableness," and
prejudice exists where "there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland. 466 U.S. at 688, 694.
"A petitioner bears a very heavy burden on an
ineffective assistance claim." Lema v. United
States. 987 F.2d 48, 51 (1st Cir. 1993).
support of the first ground of his § 2255 motion,
petitioner argues that he was denied effective assistance of
counsel because (1) Attorney Butters "abandoned"
petitioner after the initial mistrial, thereby denying him a
"speedy retrial"; and (2) Attorney Butters
committed various alleged mistakes involving the
circumstances at the heart of petitioner's Brad
v claim. Both arguments fail.
prefatory matter, the court reaffirms its prior assessment of
Attorney Butters' stellar representation of petitioner:
Defendant has, at various points in this case, elected to
represent himself. He is an able advocate for his cause.
Nonetheless, the court appointed standby counsel, Mr. Thomas
Butters, who tried the case to the jury and has taken the
lead on the post-verdict matters, aside from this motion for
a new trial. Mr. Butters has performed admirably, protecting
defendant's interests at every turn and ensuring that the
mistakes described in this opinion found the light of day.
The court thanks Mr. Butters for his exceptional service.
See Docket # 275 at 2 n.1.
his first argument, petitioner fails to allege any facts
supporting abandonment by Attorney Butters or a denial of the
right to a speedy trial. Moreover, based upon the court's
familiarity with these proceedings and a review of the
docket, petitioner's claims are simply untrue. Petitioner
was retried within the 70-day time limit imposed by the
Speedy Trial Act, and ...