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David R. Spencer v. United States

August 30, 2011

DAVID R. SPENCER, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In this pro se action for a writ of habeas corpus, petitioner David Spencer challenges his conviction and sentencing in Superior Court of the District of Columbia. A jury convicted Mr. Spencer of first degree murder and related offenses. Mr. Spencer claims, among other wrongs, that he was subjected to prosecutorial misconduct and that he was denied the effective assistance of counsel at trial, on appeal, and throughout collateral attack proceedings. The Petition will be dismissed because (1) Mr. Spencer has failed to show that the local remedy under D.C. law is inadequate or ineffective and thus the Court lacks jurisdiction; and (2) the Court lacks jurisdiction over the claim of ineffective assistance of appellate counsel because Mr. Spencer failed to move to recall the mandate.

I. FACTS

Mr. Spencer was charged in an indictment on October 2, 1991, and a jury convicted him of eight counts including first degree murder, assault with a deadly weapon, and kidnaping while armed. He was sentenced on September 2, 1992. Since sentencing, Mr. Spencer has appealed and collaterally attacked his conviction and sentence in numerous ways.

First, he filed an appeal. While that appeal was pending, he filed a motion under D.C. Code § 23-110, seeking a new trial based on alleged ineffective assistance of trial counsel. The D.C. Superior Court held a full evidentiary hearing and denied the motion for new trial on April 5, 1994. Mr. Spencer appealed that ruling. The two appeals were consolidated, and on April 23, 1998, the D.C. Court of Appeals affirmed both. Mr. Spencer moved for rehearing and/or rehearing en banc and that motion was denied. The Court of Appeals issued its mandate in the consolidated appeals on August 3, 1998. On October 21, 1998, Mr. Spencer's petition for writ of certiorari was denied.

On May 14, 1998, Mr. Spencer filed a document in the D.C. Court of Appeals titled "Motion to Recall the Mandate," but the motion did not seek to recall the mandate. Response and Mot. to Dismiss ("Resp.'s Mot.") [Dkt. # 5], Ex. 4 (Mot. to Recall Mandate). Instead, the motion only asked that counsel be appointed for the purpose of pursuing a claim for ineffective assistance of appellate counsel. Id. The D.C. Court of Appeals interpreted the motion to be a "motion to appoint counsel to pursue a motion to recall the mandate," and denied the motion. Resp.'s Mot., Ex. 5 (Order dated May 19, 1998).

On November 1, 2000, Mr. Spencer filed a second motion under D.C. Code § 23-110, this time alleging that the Superior Court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it failed to instruct the jury that it must find the armed element of each offense beyond a reasonable doubt. The Court of Appeals held that Apprendi was not retroactive and denied the motion on March 13, 2003.*fn1

On November 15, 2004, Mr. Spencer filed a third motion under D.C. Code § 23-110.

In this last motion, he alleged that counsel on his prior § 23-110 claim was ineffective. On August 9, 2005, the Superior Court addressed the claim in a fifteen page opinion and denied the motion. See Resp.'s Mot., Ex. 8 (Mem. Op. dated Aug. 9, 2005).*fn2 Mr. Spencer appealed and the Court of Appeals affirmed. See Resp.'s Mot., Ex. 9 (Order dated July 19, 2006). The mandate issued on August 10, 2006. Mr. Spencer now challenges his conviction and sentence by filing this Petition for writ of federal habeas corpus.

II. ANALYSIS

A. Timliness

28 U.S.C. § 2254 is the federal law governing petitions for writs of habeas corpus filed in federal courts by State prisoners. Section 2254(a) provides that a federal district court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition under 28 U.S.C. § 2254 must be filed within a one-year limitations period, which is calculated as follows:

The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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