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.

Spears v. United States

United States District Court, M.D. Florida, Fort Myers Division

June 14, 2018

ROBERT JAMES SPEARS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          John E. Steele, Judge

         This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #61)[1] filed on November 17, 2017. The government filed a Response in Opposition to Motion (Cv. Doc. #9) on May 25, 2018.

         I.

         On February 12, 1992, petitioner was indicted for possession with intent to distribute in excess of 50 grams of crack cocaine. On April 14, 1992, petitioner entered a plea of guilty, without a plea agreement, to Count One of the Indictment. On July 15, 1992, petitioner was sentenced to 135 months of imprisonment with credit for time served followed by a term of supervised release. (Cv. Doc. #9-3.) July 9, 1993, petitioner's sentence was reduced to 78 months pursuant to the government's Motion under Rule 35. (Cv. Doc. #9, ¶¶ 1-4.)

         On January 17, 2002, U.S. Probation submitted a Petition for warrant based on petitioner having committed home invasion/robbery, burglary of an occupied dwelling, and resist/obstruct officer without violence. (Cv. Doc. #9-5.) The Court granted the petition for the issuance of a warrant for violation of supervised release. (Cr. Doc. #37.) A Writ was issued as petitioner remained in state custody, and petitioner made an initial appearance on February 12, 2003. (Cr. Docs. ## 45, 47.) On March 25, 2003, the Court conducted the final revocation hearing. (Cr. Doc. #57.) Supervised release was revoked, and petitioner was sentenced on March 26, 2003, to 27 months incarceration to be served consecutively to the state sentence which petitioner was presently serving. No additional term of supervised release was imposed. (Cr. Doc. #60.)

         Petitioner filed his motion pursuant to 28 U.S.C. § 2255 on November 16, 2017, alleging that the Court acted under the mistaken assumption that term had to be imposed consecutively to the 25 years imposed by the state court. Petitioner seeks to have the sentence be imposed concurrently to the state sentence.

         II.

         A. Need For Evidentiary Hearing

         A district court shall hold an evidentiary hearing on a habeas petition “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b). “[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (citation omitted). Viewing the facts alleged in the light most favorable to petitioner, the record establishes that petitioner is not entitled to relief, and therefore an evidentiary hearing is not required.

         B. Custody Under § 2255

         Pursuant to Section 2255,

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). According to Florida's Department of Correction's Offender Database, petitioner is currently in their custody with a current projected release date of November 19, 2026.

         A United States Marshal detainer has been lodged pending completion of that sentence. Petitioner received a 25 year state prison sentence on January 31, 2003, and the detainer has been in place since May 15, 2003. Petitioner can attack “a federal sentence, yet to be served, while defendant is in custody completing a state sentence” even if not physically in custody. Desmond v. U.S. Bd. of Parole, 397 F.2d 386, 389 (1st Cir. 1968). Therefore, ...


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.