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.

Speller v. United States

United States District Court, E.D. North Carolina, Eastern Division

July 22, 2019

TERRY LAMONT SPELLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on petitioner's second amended pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [DE 89-1]. The government has moved to dismiss petitioner's second amended § 2255 motion. [DE 103]. Petitioner has also moved to stay a writ of execution [DE 94], petitioned for a writ of audita querela [DE 96], moved for a certificate of appealability [DE 100], and moved for leave to supplement his second amended § 2255 [DE 106]. All of the motions are ripe for disposition. For the reasons discussed below, petitioner's motion for leave to supplement his § 2255 [DE 106] is GRANTED, the government's motion to dismiss [DE 103] is GRANTED and petitioner's second amended § 2255 motion [DE 89-1] is DISMISSED, petitioner's original § 2255 motion [DE 60] is DENIED AS MOOT, and petitioner's motions to stay the writ of execution [DE 94], obtain a writ of audita querela [DE 96] and obtain a certificate of appealability [DE 100] are all DENIED.

         BACKGROUND

         In August 2015, petitioner pleaded guilty, pursuant to a written plea agreement, to one count of health care fraud, in violation of 18 U.S.C. § 1347, and one count of engaging in monetary transactions in property derived from health care fraud, in violation of 18 U.S.C. § 1957. [DE 19, 21]. Petitioner was fraudulently billing Medicaid and using the proceeds on personal purchases. [DE 15, p. 10');">p. 10]. In March 2016, Judge James C. Fox sentenced petitioner to a total term of 240 months' imprisonment, 3 years' supervised release, a $200 special assessment, and restitution in the amount of $5, 962, 189.77. [DE 29, 31]. Petitioner appealed and the Fourth Circuit dismissed his appeal given the appellate waiver in petitioner's plea agreement. [DE 52].

         In June 2018, petitioner moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [DE60]. In October 2018, the Court granted petitioner leave to file a first amended § 2255 motion. [DE 74]. In February 2019, the Court denied petitioner's motion for judicial records. [DE 87]. Then, in April, the Court denied petitioner's motion for reconsideration of the Court's February order but granted petitioner leave to file a second amended § 2255 motion. [DE 95]. In response to the Court's February denial of his motion for judicial records and April denial of his motion for reconsideration, petitioner has moved for a certificate of appealability "on the issue of [w]hether [p]etitioner, a citizen[, ] has a qualified right of access to judicial records." [DE 100].

         In March 2019, the Clerk of Court issued a writ of execution on real property located in Plymouth, North Carolina and in which petitioner has a substantial financial interest. [DE 92]. The following month, petitioner moved to stay execution of the writ given his pending § 2255 motion and his intention to file a motion to quash the writ. [DE 94]. Shortly thereafter, he petitioned for a writ of audita querela to "stop enforcement of judgment as to restitution." [DE 96]. The government has responded in opposition to petitioner's motion to stay execution and petition for a writ of audita querela. [DE 110].

         Petitioner's second amended § 2255 motion includes ten alleged grounds for relief. Petitioner alleges that (1) trial counsel was ineffective in failing to move to dismiss his charges under the Speedy Trial Act, (2) trial counsel was ineffective in "failing to recognize the violation of the Speedy Trial Act and counseling a guilty plea to a count that should have been dismissed," (3) that trial counsel was ineffective in "failing to object to the Court's failure to follow its own rules governing loss and restitution," (4) that trial counsel was ineffective in "failing to review the relevant guideline case law and guidance for vulnerable victim enhancements," (5) that trial counsel was ineffective in "failing to review the relevant guideline case law and guidance for abuse of position of trust," (6) that trial counsel was ineffective in "fail[ing] to investigate the firearm enhancement and object to the Court's application," (7) trial counsel was ineffective in "fail[ing] to object to sophisticated means based on recent amendments," (8) trial counsel was ineffective in "fail[ing] to object to the number of victims," (9) trial counsel was ineffective in "counseling a plea to Count Two ... without adequate pre-plea investigation," and (10) the district court violated petitioner's due process rights by "threatening to take away his acceptance of responsibility for challenging inapplicable sentencing enhancements" or, alternatively, appellate counsel was ineffective "for not attacking the [appellate] waiver on [the] basis [of] enhancements." The government has moved to dismiss petitioner's second amended § 2255 motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. [DE 103]. Petitioner has responded in opposition to the motion to dismiss.

         DISCUSSION

         1. Petitioner's motion for a certificate of appealability is denied.

         Petitioner's motion for a certificate of appealability on the question of whether he has a "qualified right of access to judicial records" must be denied. In October 2018, petitioner moved this Court for an order directing the U.S. Probation Office to "provide him copies of the [victims'] affidavits used to determine the loss and restitution" in his case. [DE 75]. In February 2019, the Court denied petitioner's motion, determining that petitioner was not entitled under federal law to access any underlying victim affidavits and that petitioner instead had the opportunity to object to loss calculations contained in his presentence report. [DE 87]. Petitioner moved for reconsideration of the Court's February order and his motion for reconsideration was denied. [DE 95]. Petitioner now seeks a certificate of appealability on whether he, as a U.S. citizen, is entitled to copies of victim affidavits.

         Certificates of appealability, authorized by 28 U.S.C. § 2253, govern the right to appeal the dismissal of a federal habeas corpus petition. Slack v. McDaniel, 529 U.S. 473, 480-82 (2000). In order to obtain a certificate of appealability, a petitioner must demonstrate that reasonable jurists would find that a court's assessment of the constitutional claims in a federal habeas petition are debatable and, accordingly, any dispositive procedural ruling dismissing the constitutional claims in the habeas petition is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Because the motion at issue was not a federal habeas petition, § 2253 is inapplicable. Petitioner is not entitled to a certificate of appealability on the Court's denial of his motion for judicial records. Additionally, petitioner cannot obtain a certificate of appealability to raise particular legal issues on appeal, because in general, parties can only raise legal arguments on appeal from a final judgment. The final judgment rule, with some limited exceptions that are not applicable here, serves as a bar on piecemeal appeals. See Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). In sum, petitioner is not entitled to a certificate of appealability and his motion is denied.

         2. Petitioner's motion to stay execution and petition for a writ of audita querela are denied.

         First, petitioner's motion to stay execution of the writ of execution issued by the Clerk in March 2019 is denied. Petitioner moved to stay execution of the writ so that he could file a motion to quash and so that his § 2255 proceedings could be resolved. To date, however, petitioner has not filed a motion to quash the writ of execution. Instead, he has petitioned for a writ of audita querela.

         The writ of execution was issued in March 2019 to require petitioner to sell his property in Plymouth, North Carolina in order to satisfy-at least in part-the restitution that he owes. A restitution order is a final judgment. 18 U.S.C. § 3664(o). Under Rule 8 of the Federal Rules of Appellate Procedure and Rule 38 of the Federal Rules of Criminal Procedure, a federal district court has discretion to stay collection of a restitution order. The party requesting a stay bears the burden of establishing that a stay is appropriate. Nken v. Holder,566 U.S. 418, 433-34 (2009). A court deciding whether to grant such a stay should consider "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured ...


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.