Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elam v. United States

United States District Court, E.D. Texas, Tyler Division

June 22, 2018

SPENCER ELAM
v.
UNITED STATES OF AMERICA

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

          Ron Clark, United States District Judge

         The 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.

         I. Background

         Elam 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.

         Elam 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.

         II. Elam's Motion to Vacate or Correct Sentence

         Elam 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.

         III. The Report of the Magistrate Judge

         After 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 sua sponte.

         IV. Elam's Objections to the Report

         Elam 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.

         A. The Plea Offer

         In 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.

         According 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.