United States v. Demetrius Demarco Spencer

1

United States of America, Plaintiff, v. Demetrius Demarco Spencer, Defendant.

No. 20-cr-229 (ECT/BRT)

United States District Court, D. Minnesota

December 21, 2023

Allison Kim Ethen, Quinn Askew, Samantha H. Bates, Thomas Calhoun-Lopez, and William C. Mattessich, United States Attorney's Office, Minneapolis, MN, for Plaintiff United States of America.

Demetrius Demarco Spencer, pro se.

OPINION AND ORDER

Eric C. Tostrud United States District Court Judge

Defendant Demetrius Demarco Spencer has filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C § 2255. ECF No. 121. On March 1, 2022, after a two-day trial, a jury found Spencer guilty of being a felon in possession of a firearm in violation of 18 U.S.C §§ 922(g)(1) and 924(a)(2). ECF. No. 70; see also ECF No. 1. Several months later, he was sentenced to 120 months' imprisonment, followed by three years of supervised release. ECF No. 95. Spencer is currently serving this sentence at the Federal Correctional Institution in Greenville, Illinois, with a projected release date of January 11, 2031. See Fed. Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/ (last visited Dec. 21, 2023).

Spencer claims that his conviction and sentence should be vacated because a police officer lied on the witness stand, his attorney failed to “test” the firearm found in his possession, and the Bureau of Prisons miscalculated the length of his sentence. He also states that he wants “to know how to get the ‘first Step Act.'” ECF No. 121-2 at 3.^[1] This final claim does not otherwise appear in Spencer's motion, although in addition to a new trial, he seeks relief in the form of “access to first Step Act.” Id. at 12.

I

A person serving a federal sentence may move to vacate, set aside, or correct his conviction or sentence on the grounds “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The movant bears the burden to establish that his conviction or sentence violated either the Constitution or federal law. United States v. Hill, 215 F.Supp.3d 823, 826 (D. Minn. 2016).

Relief under § 2255 “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, not all claims of error in a conviction or sentence are cognizable in a § 2255 proceeding. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc). Claims not raised on direct appeal generally may not be raised in a motion to vacate under § 2255. Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice,' or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

II

To the extent Spencer's claim regarding the officer's testimony and the “testing” of the firearm are direct challenges to the evidence adduced at trial, Spencer did not raise these claims in his direct appeal, and they are subject to the procedural-default rule. His very spare motion does not argue that any of the exacting exceptions to the rule would apply to save his claims from dismissal. See e.g., Dansby v. Payne, 47 F.4th 647, 659 (8th Cir. 2022) (“To show cause [to excuse a procedural default], [the movant] must demonstrate that his failure to comply with the . . . procedural rule was attributable to ‘some objective factor external to the defense.'”) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); Shinn v. Ramirez, 596 U.S. 366, 379-80 (2022) (noting that “actual prejudice” requires more than an allegation “that ‘the errors at . . . trial created a possibility of prejudice,' but rather that the constitutional violation ‘worked to his actual and substantial disadvantage.'”) (quoting Murray, 477 U.S. at 494); Schlup v. Delo, 513 U.S. 298, 327 (1995) (holding that a habeas petitioner claiming actual innocence “must show that it is more likely than not that no reasonable juror would have convicted him”). Although given time to do so, Spencer did not file a reply memorandum to elucidate any potential claim of cause, prejudice, or actual innocence, and none can be gleaned from the record. His substantive claims regarding the evidence at trial are therefore procedurally defaulted.

Construing Spencer's claims liberally, however, his reference to his previous failed attempt to argue these issues and his belief that counsel would raise the issues could be an attempt to claim ineffective assistance of counsel for failing to press these evidentiary issues on appeal. See Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004) (“When we say that a pro se complaint should be given liberal construction, we mean that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.”). Claims of ineffective assistance of counsel are not subject to the usual procedural-default rules. United States v. Pherigo, 327 F.3d 690, 696 (8th Cir. 2003) (“Claims of ineffective assistance of counsel are properly raised in a post-conviction motion under 28 U.S.C. § 2255 and not on direct appeal.”).

To prevail on a claim that counsel rendered ineffective assistance, Spencer must establish both that his appellate attorney's performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 689-93 (1984). Courts must presume that attorneys provide effective representation, and “will not second-guess strategic decisions or exploit the benefits of hindsight.” Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997). Indeed, any “scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. And even if Spencer could show that his appellate counsel's performance was deficient, counsel's assistance is unconstitutional only “if the deficiencies actually affected [Spencer's] appellate proceedings.” Pfau v. Ault, 409 F.3d 933, 939 (8th Cir. 2005). Put differently, Spencer “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

Before Spencer's trial, the government moved in limine to admit evidence under Rule 404(b) of Spencer's 2013 federal conviction for being a felon in possession of a firearm. ECF No. 39. Because the prior incident was similar to the charged offense and was not overly remote in time, the motion was granted. ECF No. 57. Near the end of its case-in-chief, the government proffered the testimony of the police officer who arrested Spencer for the prior offense. Minneapolis Police Officer Joshua Stewart testified that in 2012 he witnessed Spencer take a gun-shaped item out of his pocket, lean into a nearby car, and put the item into the car. Tr. [ECF No. 113] at 155, 157. When Officer Stewart investigated, he found a 9-mm handgun under the seat of the car. Id. at 156-57.

Spencer asserts that Officer Stewart “got on the stand and testified about my last case in which he wrote in his Report that he seen me put a gun under a seat and lied, and on this case he said the same thing.” ECF No. 121-2 at 16. Spencer contends that “you can find two different [stories] if you read his Direct on this case and his cross on my last case.” Id. Having reviewed Officer Stewart's testimony in the previous matter and his testimony in this case, it appears that Spencer takes issue with Officer Stewart's statement that he believed Spencer put the gun under the front passenger seat, id. at 155, when in the prior case he testified-and wrote in his police report-that Spencer put the gun under the driver's seat. Trial Tr., United States v. Spencer, No. 12-cr-280 (MJD/JJK), ECF No. 84, at 155-56. Spencer's allegation thus appears to be that Officer Stewart's testimony regarding the circumstances of Spencer's prior arrest was false.

Officer Stewart's testimony did not establish Spencer's guilt for the crime charged here and was not intended to do so. It merely provided facts to the jury regarding Spencer's prior conviction for a similar crime-possession of a firearm-to show his “knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Whether Spencer committed the prior offense in the precise way Officer Stewart described was unimportant. Moreover, Spencer's attorney cross-examined Officer Stewart regarding the differences between the prior arrest and the instant offense. Tr. at 158-59. And the evidence here was overwhelming that Spencer possessed the weapon involved: an eyewitness at whom Spencer pointed the weapon testified to that fact. Id. at 37. Any appellate challenge that relied on the differences between Officer Stewart's 2013 testimony and his testimony in this case would not have changed the outcome of Spencer's appeal. Spencer's attorney did not render ineffective assistance in failing to raise on appeal the issue of Officer Stewart's allegedly false testimony.

Spencer's second contention is more difficult to discern. He appears to claim that his attorney erred by “no testing...