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Spicer v. Fisher

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

October 15, 2018

FRED STANFORD SPICER, a prisoner incarcerated at the Mississippi State Penitentiary in Parchman, Mississippi PETITIONER
MARSHALL L. FISHER, Commissioner, Mississippi Department of Corrections, and JIM HOOD, Attorney General of the State of Mississippi RESPONDENTS



         Before the Court is a [1] Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Fred Stanford Spicer. Following this Court's prior [41] Memorandum Opinion and Order staying the case pending exhaustion of Spicer's claims in state court, Spicer returned to the Mississippi Supreme Court, was denied relief, and has returned to further pursue his Petition. The parties filed supplemental briefing. Having considered the submissions of the parties, the record, and relevant law, the Court finds that Spicer's Petition for Writ of Habeas Corpus should be denied.


         Fred Spicer was found guilty of capital murder and sentenced to death in the Circuit Court of George County for killing Edmund Hebert. Spicer appealed his verdict and sentence, both of which were affirmed by the Mississippi Supreme Court. Spicer v. State, 921 So.2d 292 (Miss. 2006). Spicer then filed for post- conviction relief, and the Mississippi Supreme Court granted his petition, in part. Spicer v. State, 973 So.2d 184 (Miss. 2007). Specifically, the court found that Spicer had made a sufficient showing that his trial counsel was ineffective at the sentencing phase of his trial to be entitled to an evidentiary hearing on that issue in the trial court. Relief was denied on all of Spicer's other claims, including his claim that his trial attorneys were ineffective during the guilt phase of his trial.

         An evidentiary hearing was held in the Circuit Court of George County on March 15-16, 2011, where substantial additional evidence was introduced in support of Spicer's ineffective counsel claim. After taking the case under advisement, the trial court entered a Memorandum Decision and Order on February 22, 2012, finding that the mitigation evidence offered at the sentencing phase of Spicer's original trial was “woefully inadequate to allow the jury to give individualized consideration of Spicer's background and weigh the merits of imposing a sentence less than death.” Spicer v. State, No. 2009-0266(3), slip op. at 12 (George Cty. Miss. Cir. Ct. Feb. 22, 2012). For that reason, the court vacated and set aside Spicer's sentence of death. The court held another hearing on September 27, 2012, during which the State announced in open court that it waived seeking the imposition of the death penalty. See State v. Spicer, No. 20-2002-10, 006(3) (Miss. George Cty. Cir. Ct. Sept. 27, 2012). Because only one other sentence was available under the law, Spicer was sentenced to life imprisonment without the possibility of parole. Id.

         Spicer did not seek further review of his case in state court; instead, he filed a Petition for a Writ of Habeas Corpus with this Court. In his Petition, Spicer relied on the new evidence that was offered in the trial court and argued that he is entitled to habeas relief because his trial counsel was also ineffective at the guilt phase of his trial and the Mississippi Supreme Court unreasonably denied relief on this issue. Spicer also argued that the state court unreasonably denied relief on his claim of cumulative error. Alternatively, Spicer argued that, even without resorting to the new evidence presented in the Circuit Court, he was entitled to relief on these claims. Finally, if the Court determined that the new evidence made his ineffectiveness claim unexhausted, Spicer sought a stay to return to state court and exhaust that issue.

         This Court granted the last request and stayed this matter so that Spicer could return to state court. Spicer applied for leave to file a second petition for post-conviction relief. The Mississippi Supreme Court denied relief:

Having duly considered each of his claims, the panel finds the application for leave to be successive and time-barred, and not within one of the exceptions. Miss Code Ann. §§ 99-39-5(2) and 99-39-27(9). Further, despite Spicer's assertion of newly discovered evidence, we find his claims barred by res judicata. Miss Code Ann. § 99-39-21(3).

Spicer v. State, No. 2016-M-01506-SCT, at 2 (Miss. Oct. 11, 2017). Spicer has now returned to this Court for habeas corpus relief. Both parties were allowed to file - and did file - supplemental briefing on the effect of the subsequent state court proceedings.

         II. FACTS

         Magistrate Judge Gargiulo previously set forth the facts of this case in detail in his [38] Report and Recommendation. These facts are included herein.

         At the time of his death, Edmond Hebert was living in a small trailer in Benndale, Mississippi, near Lucedale, in George County. His mother and stepfather lived in a trailer a few blocks away. Hebert worked various jobs as a sandblaster and painter, but his main occupation was laying linoleum flooring. He was working as a roofer when he was killed in October 2001. Among Hebert's possessions were a green Nissan pickup truck and a sword that hung in a display on a wall of his trailer.

         A few weeks before he was killed, Hebert invited Fred Spicer to live with him in his trailer. Hebert approached his boss about giving Spicer a job on the roofing crew, and his boss, Johnny Butler, hired Spicer. People who knew Hebert became accustomed to seeing him with Spicer, and, on occasion, Spicer was seen driving Hebert's truck alone.

         On or about October 11, 2001 was the last time Butler saw Hebert. It was the end of a workday, and Butler gave both Hebert and Spicer their paychecks. Later that evening, Hebert and Spicer showed up at Larry Beauchamp's house for beer and conversation. Beauchamp had known Hebert for a couple of years but had only met Spicer after he moved into Hebert's trailer. At some point in the evening, the topic of conversation turned to the possibility that Hebert might have to leave George County to return to Louisiana; he asked Beauchamp to take care of his dog in case he had to leave. Spicer said that he would like to have the dog, but Hebert responded that he had already given it to Beauchamp. According to Beauchamp, this exchange soured Spicer's attitude. Hebert and Spicer then left Beauchamp's trailer an hour or so later in Hebert's truck.

         When neither Hebert nor Spicer appeared at work the next day, Butler called Hebert's mother, Patricia Elder, to tell her that her son was fired. Mrs. Elder went to Hebert's trailer, but his truck was not there; she assumed he would not be either. She returned to the trailer two more times that day, but the truck was not present, so she returned to her trailer.

         On October 12, Sergeant Brian White, a deputy with the Jackson County Sheriff's Department, was driving on Market Street in Pascagoula when he noticed a green Nissan pickup truck facing him at the intersection of Market and Highway 90. As he was turning onto Highway 90, Deputy White noticed that the truck's driver, a white male, “put a cold stare” on him. The truck also turned onto Highway 90. The driver kept staring at Deputy White. At the same time, a white female passenger put her hand over her face and tried to squat down in the passenger seat. Deputy White changed lanes to follow the truck, and he noticed that the driver continued to look at him through the rear-view mirror. While Deputy White called in the registration to dispatch, the truck moved from the far left-hand lane of Highway 90 to the far right-hand lane and turned into a restaurant's parking lot, all without a turn signal. Traffic prevented Deputy White from changing lanes to turn into the parking lot, so he pulled into another parking lot and waited. Only a few seconds later, the truck passed that lot, but Deputy White was again prevented by traffic from following it. He saw the truck turn into a motel parking lot. When Deputy White was finally able to pull into that lot, he saw that the two individuals had gotten out of the truck and were trying to reach places where they could hide from him.

         Deputy White apprehended the driver, who refused to give his name and threw away the keys to the truck he had been driving. The driver denied tossing the keys and again refused to give the deputy any information. At about that time, dispatch notified Deputy White that the truck was registered to Edmond Hebert. The driver denied being Hebert. White turned the driver over to another officer and went to look for the female passenger, who he found hiding behind a garbage can. The passenger was Angel Hinger, and she identified the driver as Freddie Spicer.

         Deputy White arrested Spicer on three moving violations and conducted an inventory search of the truck. Officers found a camouflage jacket and a sword. Paperwork inside the truck indicated that it was registered to Edmond Hebert. The officers ran Spicer's name through the National Crime Information Center database, which returned a valid “hit” out of Franklin, Massachusetts for burglary. After transporting Spicer to the Detention Center, Deputy White asked a detective to call the George County Sheriff's Department and ask them to contact the vehicle's owner.

         George County Deputy John Hilbun was accordingly dispatched to Hebert's residence for a welfare check. Deputy Hilbun had trouble finding the address, so he stopped to ask directions from a man who turned out to be Hebert's stepfather, James Elder. Elder and Deputy Hilbun went to Hebert's trailer together, and Elder forced the door open. Inside, they found Hebert's body on the couch in his living room, covered with a blanket. Elder removed a tool box sitting on the blanket and uncovered Hebert's face. Hebert was lying on his back. There were bloodstains on the walls, the door, the ceiling, and the floor of the living room, as well as on a lampshade. According to an expert who testified for the State, the blood stains were cast-off blood stains, consistent with blunt force trauma or a beating. Once notified that Hebert was dead, Jackson County officers seized Spicer's clothing.

         The pathologist who performed the autopsy testified that he found numerous injuries on Hebert's body, including a three and one-half inch long cut over his forehead, bruises around both eyes, a cut above the right eye and the right eyelid, and an abrasion over the bridge of his nose. According to the pathologist, the cuts could have been from the blunt edge of the sword recovered from Hebert's truck. There were also numerous injuries to Hebert's arms and hands - including broken bones - which the pathologist characterized as defensive wounds. The fatal injury was the blow to the forehead that caused the long laceration. That blow fractured Hebert's skull. Subsequent testing revealed that blood found on the sword recovered from Hebert's truck, as well as bloodstains on Spicer's clothing, all came from Hebert.

         Spicer was charged with capital murder while in the commission of a robbery. After hearing the evidence summarized above, the jury found him guilty. At the sentencing hearing, the State presented evidence that Spicer had been convicted in a prior case of two counts each of robbery, conspiracy, and kidnapping in Rhode Island. In another case, he was convicted of two counts of assault with a dangerous weapon and one count of assault with intent to murder. Spicer's attorneys presented testimony from his mother and his aunt. Both women's testimony was brief, however. Bobbie Nell Spicer identified herself as Spicer's mother and defense counsel asked her whether she had anything to say about Spicer's penalty. But she never answered because the court sustained an objection to the question. Defense counsel then elicited testimony on her knowledge of Spicer's previous incarceration in Rhode Island and her belief that he had paid his debt to society for those crimes. Regina Walters, Spicer's aunt, gave similar testimony. After hearing the evidence, the jury returned a verdict of death, finding that Spicer had been previously convicted of a felony involving the use or threat of violence and that the murder was committed for pecuniary gain during the course of a robbery.


         Spicer, represented by trial counsel, appealed his conviction and sentence on several grounds, and the Mississippi Supreme Court denied relief. Spicer, 921 So.2d 292. In his later post-conviction proceedings, Spicer was represented by present counsel. Among the grounds urged for relief were (1) ineffective assistance of counsel, at both the guilt and sentencing phases of trial, (2) due process violations, (3) cumulative error, (4) the unconstitutionality of Mississippi's lethal injection protocol, and (5) mental retardation. The Mississippi Supreme Court rejected grounds 2 through 5 before turning to Spicer's ineffectiveness claims.

         Establishing ineffective assistance of counsel requires proving both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Spicer made two primary arguments in support of the guilt-phase ineffective assistance claim. First, he argued that his attorneys failed to consult with him prior to trial and prepare a strategy for his case. Two attorneys had been appointed as trial counsel - Darryl Hurt and Sidney Barnett, who was the George County Public Defender - because this was a capital murder case. Spicer pointed to the relatively few hours of pretrial work that were recorded on attorney Hurt's time sheets. The State argued in response that the George County Public Defender, Sidney Barnett, was lead counsel, and likely did most of the work. As George County's Public Defender, he would not have been required to keep time sheets. The state court accepted the State's position in lieu of any assertion by Spicer as to the hours Barnett worked on the case. Spicer, 973 So.2d at 192-93.

         The court also concluded, from its review of the record, that counsel had formulated a strategy of claiming self-defense, which they discussed with Spicer. That strategy was undermined however, when Spicer refused to testify, despite the advice of his lawyers. Id. at 193.

         Spicer's second argument was that his attorneys failed to conduct an adequate factual investigation into his case. In support, Spicer presented identical affidavits from each of his attorneys, which both contained the following statement:

Pursuant to Mississippi Rule of Appellate Procedure 22(c)(4)(ii), I located my records related to Mr. Spicer's trial. My records include only publicly available pleadings and court records. My records do not now, nor did they ever include any notes, draft pleadings, correspondence, investigatory reports, attorney work-product, ...

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