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United States v. Spencer

United States District Court, D. Massachusetts

October 2, 2018

UNITED STATES OF AMERICA
v.
BARRY SPENCER

          MEMORANDUM OF DECISION AND ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner Barry Spencer II, pro se, moves this court to vacate his sentence pursuant to 28 U.S.C. § 2255.

         I. Factual Background

         On 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 # 224.[1] 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.

         Petitioner 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.[2] Aside from issues raised at trial and on appeal, the primary ground for the motion is ineffective assistance of counsel.

         II. Legal Principles

         Federal 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).

         To make 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).

         III. Application

         In 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.

         As a 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.

         Regarding 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 ...


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