USA v. Spencer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
ROLLIN LEE SPENCER, et al.,
Defendants.
Case No. 1:07-cr-00005-TMB
ORDER DENYING DEMAND FOR VACATION [DKT. 293]
On November 22, 	2019, 	Mr. Spencer filed a “Demand for 	Immediate
Vacation 	of 	Void 	Judgment 	Due 	to 	Facially 	Void 	Warrant” 	(“Demand 	for
Vacation”).1 For the following reasons, the Demand for Vacation is DENIED
WITHOUT PREJUDICE.
I. 	BACKGROUND
On November 30, 2007, a jury found Defendant Rollin Lee Spencer guilty of
two 	counts 	of 	Felon 	in 	Possession 	of 	Firearms, 	in 	violation 	of 	18 	U.S.C.
§§ 922(g)(1), 924(a)(2).2 On March 5, 2008, the Court sentenced Mr. Spencer to
120 months of imprisonment and three years of supervised release.3 On direct
appeal, the Ninth Circuit affirmed this Court’s sentence and judgment.4
1 Docket 293 (Demand for Vacation).
2 Dockets 2 (Indictment); 95 (Minute Entry).
3 Dockets 152 (Minute Entry); 157 (Judgment).
4 Dockets 211 (9th Cir. Memorandum); 213 (9th Cir. Mandate).
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On July 8, 2016, Mr. Spencer commenced his three-year term of supervised
release.5 However, the Court found that Mr. Spencer committed multiple violations
of his supervised release conditions and revoked supervision on June 1, 2019.6
Mr. Spencer was sentenced to 24 months of imprisonment.7 He then appealed the
revocation.8 On March 19, 2018, Ninth Circuit denied Mr. Spencer’s requests for
relief on appeal and affirmed the sentence.9
In the Demand for Vacation, Mr. Spencer argues that his arrest warrant in
the underlying criminal case and his later arrest warrant based on the supervised
release violations were invalid.10 Mr. Spencer alleges that the warrants “did not
contain the lawfully required impressed seal of the court.”11 Defendant argues that
“[i]f a ‘court’ will not use the legislationally mandated seal then it is a counterfeit
being coerced on the defendant . . .” and the “[l]ack of official court seal voids the
process.”12 Defendant further argues that “if such a process is issued without the
5 Docket 256 at 4 (Petition for Warrant).
6 Dockets 276 (Minute Entry); 279 (Judgment on Revocation).
7 Docket 279 at 2.
8 Docket 281 (Notice of Appeal).
9 Dockets 291 (Memorandum); 292 (Mandate).
10 Id. at 1.
11 Id. at 1‒2.
12 Id. at 2.
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mandated court seal the process is fatally invalid and void, as in this case.”13
Mr. Spencer concludes that, because the arrest warrants lacked official seals, the
“Court has exceeded its jurisdiction . . . causing him to be imprisoned without lawful
authority.”14 As a result, Mr. Spencer seeks to have his criminal case “completely
and immediately vacated.”15
II. 	LEGAL STANDARD
Complaints 	and 	motions 	filed 	by 	pro 	se 	prisoners 	are 	to 	be 	liberally
construed by the courts.16 Under 28 U.S.C. § 2255(a), a district court may “vacate,
set aside, or correct” a sentence of a federal prisoner that was imposed in violation
of the Constitution or laws of the United States, or if the court was without
jurisdiction to impose such sentence. Here, the Court liberally construes the
Demand for Vacation as a motion to vacate under Section 2255.17
III. 	DISCUSSION
A. 	Arrest Warrants Issued on or about September 11, 2007
Mr. Spencer’s claim for relief based on the allegedly improper September
2007 arrest warrant fails for two threshold reasons. First, the challenge is untimely.
13 Id. at 3.
14 Id. at 4.
15 Id.
16 United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000).
17 See Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995).
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Motions under Section 2255 must be filed within one year of (1) the final judgment
of conviction, (2) the date on which an impediment to making such a motion is
removed, (3) the date the Supreme Court recognizes a new, retroactive right, or
(4) the date new facts supporting the claim could have been discovered through
due diligence.18 Here, Mr. Spencer’s sentence and judgment were issued in March
2008.19 	The 	present 	Demand 	for 	Vacation 	was 	filed 	over 	ten 	years 	later.
Mr. Spencer does not claim that he was prevented from filing, or that he is relying
on a newly recognized right, or that the basis for the claim could not have been
discovered through due diligence at an earlier time. Therefore, the claim against
the September 2007 arrest warrant is patently untimely and must be dismissed.
Second, despite the statute of limitations, the Demand for Vacation is an
unauthorized second or successive Section 2255 motion. “A second or successive
motion must be certified as provided in section 2244 by a panel of the appropriate
court of appeals . . . .”20 Mr. Spencer previously filed a petition for writ of habeas
corpus attacking his underlying conviction,21 which the Court summarily dismissed
with prejudice.22 Mr. Spencer does not allege and the record does not show that
18 28 U.S.C. § 2255(f).
19 Dockets 152, 157.
20 28 U.S.C. § 2255(h).
21 Docket 237 (Petition).
22 Docket 239 (Order).
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he has obtained the Ninth Circuit’s authorization to file another challenge under
Section 2255. Therefore, the claim against the September 2007 arrest warrant is
an unauthorized second or successive attack and must be dismissed.
Accordingly, because the claim against the September 2007 arrest warrant
is both time-barred and second or successive, the Demand for Vacation as to that
warrant is DENIED WITHOUT PREJUDICE. In the event Mr. Spencer wishes to
pursue this claim and the Ninth Circuit authorizes a second or successive motion,
Mr. Spencer is advised that his motion must comply with the rules regarding the
form of a Section 2255 motion, as discussed below.
B. 	Arrest Warrant Issued on or about February 17, 2017
Mr. Spencer’s challenge of the February 2017 warrant must be dismissed
for failure to follow the Rules Governing Section 2255 Proceedings and the Local
Rules. Rule 2(c) of the Rules Governing Section 2255 Proceedings requires that
a “motion must substantially follow either the form appended these rules or a form
prescribed by a local district-court rule.” Further, Rule 2(d) clarifies that if a party
seeks relief from more than one judgment, the party “must file a separate motion
covering each judgment.”23 The District of Alaska Local Habeas Corpus Rules
requires that a motion under Section 2255 “be in the form provided by the clerk of
23 Rule 2(d), Rules Governing Section 2255 Proceedings.
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the court.”24 Here, Mr. Spencer’s Demand for Vacation does not substantially
follow the District of Alaska’s form for a motion to vacate under Section 2255.
Therefore, the Demand for Vacation as to the February 2017 arrest warrant is
DENIED WITHOUT PREJUDICE.
IV. 	CONCLUSION
IT IS HEREBY ORDERED:
1. 	The Demand for Vacation at docket 293 is 	DENIED WITHOUT
PREJUDICE.
2. 	The Clerk of Court is directed to provide Mr. Spencer with the proper
form to file a motion under Section 2255, as required by the Local Habeas Corpus
Rules.25 If Mr. Spencer wishes to proceed on his claim against the February 2017
arrest warrant, he must complete and return the attached form within thirty (30)
days of the date of this Order.26 Mr. Spencer is further advised that a deficient
or incomplete motion may be summarily dismissed.27
Dated at Anchorage, Alaska this 12th day of December, 2019.
/s/ Timothy M. Burgess_
TIMOTHY M. BURGESS
United States District Judge
24 D.Ak. HCR. 2.1(a)(2).
25 D.Ak. HCR. 2.1(a)(2)
26 D.Ak. HCR. 2.1(c)(1).
27 D.Ak. HCR. 2.1(c)(2).
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