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Spear v. United States

United States District Court, S.D. Mississippi, Southern Division

June 19, 2018

PHILIP JOSEPH SPEAR
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE UNDER 28 U.S.C. § 2255

          LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the [26] Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody and the [37] Motion to Amend 2255 Motion filed by Philip Joseph Spear. This Court conducted a hearing on June 13, 2018, at which Spear and his former counsel were present and testified. After consideration of Spear's Motions, the Government's response, the testimony and arguments at the hearing, the pleadings and record on file, and the relevant legal authority, the Court finds that the Motion to Amend should be granted. Spear's 2255 Motion, as amended, is denied.

         BACKGROUND

         Spear pled guilty to an information accusing him of two counts of production of any visual depictions of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2251(a), one count of production of any visual depictions of a minor engaged in sexually explicit conduct by a person having custody or control of a minor in violation of 18 U.S.C. § 2251(b), one count of transportation of any visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2251(c), one count of distribution of any sexual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a), and one count of possession of any visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B).

         This Court sentenced Spear to a total of 1920 months imprisonment and a life term of supervised release. This Court also ordered that Spear pay restitution in the amount of $47, 500, a special assessment of $600, and an additional special assessment of $30, 000.

         Spear filed a 2255 Motion alleging that (1) his attorneys provided ineffective assistance of counsel by failing to file a notice of appeal; (2) his attorneys provided ineffective assistance of counsel by waiving the preliminary hearing; (3) the information violated the Double Jeopardy Clause's multiplicity doctrine; (4) his attorneys provided ineffective assistance by failing to object to the life term of supervised release imposed by the Court; and (5) the restitution order imposed by the Court was unconstitutional. Spear has also filed a Motion to Amend his 2255 Motion to assert the following claims of ineffective assistance of counsel: (1) failure to provide discovery to Spear; (2) violation of Spear's right to a fair trial; (3) violation of Spear's Fifth Amendment right to due process; (4) failure to inform Spear of court proceedings; (5) failure to argue Spear's medical history, medical condition, age, and military service to support or request a sentence departure/variance; (6) failure to request a mental examination; (7) failure to object to Spear's sentence; (8) failure to allow Spear's family to speak on his behalf at the sentencing hearing; (9) failure to file a motion to dismiss for failure to indict and violation of his speedy trial rights; (10) failure to file a motion to dismiss for violation of Spear's Miranda rights; (11) failure to allow Spear to read, view, or examine the presentence investigation report; (12) use of deceptive practices to coerce and threaten Spear to waive his rights and plead guilty; and (13) failure to ask for the Court to accept the Government's recommendation of sentencing Spear to the low end of the guidelines.

         DISCUSSION

         28 U.S.C. § 2255(a) provides four grounds for relief: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and (4) that the sentence is otherwise “subject to collateral attack.”

         I. MOTION TO AMEND 2255 MOTION

         The Court finds that Spear's Motion to Amend his 2255 Motion should be granted. Therefore, the Court will consider the arguments Spear asserted in his Motion to Amend as well as the arguments he made in his original Motion in this Memorandum Opinion and Order.

         II. INEFFECTIVE ASSISTANCE FOR FAILURE TO FILE A NOTICE OF APPEAL

         This Court conducted a hearing on the issue of whether Spear asked his attorney to file an appeal, because an attorney's failure to file a notice of appeal when requested - even when the right to appeal or collateral review has been waived - is per se ineffective assistance of counsel. See United States v. Tapp, 491 F.3d 263, 265 (5th Cir. 2007).

In such circumstances, if the petitioner is able to demonstrate by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal, regardless of whether he is able to identify any arguably meritorious grounds for appeal that would not be precluded by the terms of his appeal waiver.

Id. at 266. After hearing testimony from Spear and his counsel, the Court finds that Spear did not request that his counsel file a notice of appeal. Therefore, Spear did not demonstrate that his attorneys ...


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