United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
Clark, United States District Judge
Movant Spencer Elam, proceeding pro se, filed this
motion to vacate or correct sentence under 28 U.S.C.
§2255 complaining of the legality of his conviction.
This Court referred the matter to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
was charged in a 12-count indictment with conspiracy to
possess with intent to distribute hydrocone, three counts of
use, carrying, and possession of a firearm during and in
furtherance of a drug trafficking crime, two counts of
possession with intent to distribute hydrocodone, two counts
of being a felon in possession of a firearm, and three counts
of use of a communications facility to facilitate the
commission of a felony. He went to trial before a jury and
was convicted on six of these counts, receiving a total
sentence of 480 months in prison.
took a direct appeal and his conviction and sentence were
affirmed by the Fifth Circuit. United States v.
Elam, 561 Fed.Appx. 432, 2014 U.S. App. LEXIS 6585, 2014
WL 1387302 (5th Cir., May 2, 2015). Elam did not seek
certiorari from the U.S. Supreme Court.
Elam's Motion to Vacate or Correct Sentence
filed a motion and amended motion to vacate or correct
sentence raising 15 grounds for relief, including the
following: (1) counsel was ineffective for failing to file a
petition to dismiss counts 2 and 4 as duplicative; (2)
counsel was ineffective during plea negotiations; (3) counsel
was ineffective for failing to investigate a viable defense
and subpoena witnesses; (4) counsel failed to object or raise
on direct appeal to a constructive amendment or fatal
variance between the first superseding indictment and the
proof at trial pertaining to counts 1 through 5; (5) counsel
was ineffective for failing to object to the jury
instructions on counts 3 to 5, which constructively amended
the indictment and/or the counts; (6) appellate counsel was
“disinterested in his case” and erred by failing
to peruse the record to raise more issues on appeal,
including insufficient evidence and prosecutorial misconduct;
(7) counsel was ineffective for not renewing a Rule 29 motion
for acquittal and failing to object to the prosecutor
vouching for the credibility of a witness; (8) counsel was
ineffective for failing to present a coherent defense; (9)
counsel was ineffective for failing to object to Count 4 of
the indictment; (10) counsel was ineffective because he had
conflicts of interest during all phases of the trial; (11)
appellate counsel was ineffective by failing to present the
strongest arguments on appeal; (12) counsel committed
cumulative errors; (13) actual innocence; (14) trial and
appellate counsel failed to assert prosecutorial
vindictiveness in securing a superseding indictment and the
prosecution of his case; and (15) counsel was ineffective by
exposing a potential defense.
The Report of the Magistrate Judge
reviewing t h e pleadings o f both Elam and the Government
and the trial records, the Magistrate Judge issued a
comprehensive and detailed Report concluding that neither
Elam's trial counsel nor his appellate counsel were
constitutionally ineffective. The Magistrate Judge further
determined that actual innocence is not a constitutional
claim and that in any event, Elam did not set out a colorable
claim of actual innocence. The Magistrate Judge recommended
that the motion to vacate or correct sentence be dismissed
and that Elam be denied a certificate of appealability
Elam's Objections to the Report
filed objections to the Magistrate Judge's Report
focusing on two points, numbered as grounds for relief (2)
and (3) above. These points, together with Elam's
objections, will be discussed in more detail below.
The Plea Offer
ground no. 2, Elam asserted that on September 21, 2012, his
attorney Brent Gimble brought him a plea offer from the U.S.
Attorney, John Bales. Elam stated that he and Gimble had a
dispute over the contents of the agreement but that Elam
finally agreed to sign it. Gimble told him to talk to
Elam's wife and Gimble would get back to him later, but
the lawyer never did.
to Elam, he tried to contact Gimble but without success. Two
weeks later, Elam went to trial without any details of the
expiration of the plea ...