*

United States v. Dale, 374 F.3d 321 (5th Cir.), cert. denied, 543 U.S. 993 (2004). 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

§

§

§

v. § Civil Action No. 3:05-CV-1858-L

§ (3:00-CR-0389-L(03))

§

KEVIN DEWAYNE SPENCER, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody, filed September 19, 2005. Pursuant to 28 U.S.C.

§ 636(b), and an order of the court in implementation thereof, this action was referred to the United

States magistrate judge for proposed findings and recommendation. On December 14, 2005, the

Findings and Recommendation of the United States Magistrate Judge (“Report”) were filed.

Defendant Kevin Dewayne Spencer (“Spencer” or “Defendant”) filed Objections to the Magistrate’s

Report and Recommendation in the Above Captioned Case (“Objections”) on December 29, 2005.

On April 26, 2002, a jury found Spencer guilty of securities fraud, interstate transportation

of stolen property, wire fraud, money laundering, and engaging in monetary transactions in property

derived from specified unlawful activity. He was sentenced on February 18, 2003 to 78 months

confinement, followed by supervised release for three years. His conviction and sentence were

affirmed on direct appeal.*

 On September 19, 2005, Spencer filed this § 2255 motion. As grounds

for relief, he asserts that (1) his attorney was ineffective for failing to file a motion to dismiss the

 

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Memorandum Opinion and Order – Page 2

indictment for lack of subject matter jurisdiction; (2) his sentence was enhanced based on facts not

submitted to the jury or proved beyond a reasonable doubt in violation of the Sixth Amendment to

the United States Constitution; and (3) the combination of these errors deprived him of a fair trial

and he is entitled to relief under the cumulative error doctrine.

The magistrate judge found that the indictment was not defective, and, therefore, Spencer’s

counsel was not ineffective for failing to seek dismissal of the indictment on jurisdictional grounds.

The magistrate judge also found that Spencer’s claim that the enhancement of his sentence based

on facts not submitted to a jury or proved beyond a reasonable doubt violated the Sixth Amendment

fails, as such claims are not cognizable on collateral review. Specifically, Spencer brings this claim

pursuant to United States v. Booker, 543 U.S. 220 (2005). Booker, however, does not apply

retroactively to cases on collateral review, but only to cases on direct review. Id. at 268; United

States v. Gentry, 432 F.3d 600, 602 (5th Cir. 2005). Regarding Spencer’s final claim, the magistrate

judge determined that, because Spencer failed to establish any error in the conduct of his criminal

trial, he is not entitled to relief under the cumulative error doctrine. The magistrate judge

recommends that the court deny Spencer’s motion to vacate, set aside, or correct sentence.

In his Objections, Spencer contends that the magistrate judge mischaracterizes the issues in

his motion. Spencer reiterates his arguments to support his claim that the indictment was defective

and that he received ineffective assistance of counsel. He also asserts that Booker should be applied

retroactively to this case. Spencer further contends that the cumulative error doctrine applies here

because of the defects in the indictment.

Having reviewed the pleadings, file and record in this case, the findings of the magistrate

judge, and having considered Defendant’s objection thereto, the court determines that the findings

 

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Memorandum Opinion and Order – Page 3

of the magistrate judge are correct. They are therefore accepted as those of the court. Defendant’s

Objections are overruled. Accordingly, Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody is denied, and this action is

dismissed with prejudice.

It is so ordered this 28th day of February, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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