United States District Court, D. Minnesota
Benjamin Bejar and Thomas M. Hollenhorst, for Plaintiff
United States of America
Spencer, Pro Se
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
the Court are two motions filed by Marvin Spencer, pro
se: (1) Motion for the Appointment of Counsel [Doc. No.
321]; and (2) Motion for an Extension [Doc. No. 323]. For the
reasons set forth below, the Court denies without prejudice
Spencer's Motion for Appointment of Counsel and denies
his Motion for an Extension.
a February 2016 jury trial, Spencer was found guilty of
robbery, conspiracy to commit robbery, discharging a firearm
during and in relation to a crime of violence, and being a
felon in possession of ammunition, in violation of 18 U.S.C.
§§ 371, 922(g)(1), 924(c), and 1951. (See
Redacted Jury Verdict [Doc. No. 188].) In August 2017, this
Court sentenced Spencer to 257 months in prison.
(See Am. Sentencing J. at 2 [Doc. No. 269].)
counsel filed a direct appeal with the Eighth Circuit Court
of Appeals, challenging the sufficiency of the evidence and
the reasonableness of the sentence, and Spencer also filed a
pro se brief challenging this Court's
jurisdiction, counsel's effectiveness, and the validity
of his conviction under 18 U.S.C. § 924(c) in light of
Johnson v. United States, 135 S.Ct. 1551 (2015).
See United States v. Spencer, No. 16-3435, 2017 WL
4005119, at *1 (8th Cir. Sept. 12, 2017) (per curiam) [Doc.
his appeal was pending with the Eighth Circuit, Spencer filed
the instant motions in April and June, 2017. On September 12,
2017, the Eighth Circuit denied Spencer's appeal,
Spencer, 2017 WL 4005119, at *1, entered judgment,
(see 8th Cir. Judgment [Doc. No. 325]), and issued
its mandate on October 3, 2017. (8th Cir. Mandate [Doc. No.
326].) In response to Spencer's request for an extension
to file a petition for rehearing, on October 4, 2017, the
Eighth Circuit recalled the mandate and granted Spencer an
extension. Although the filing of a notice of appeal
“confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects
of the case involved in the appeal, ” see Griggs v.
Provident Consumer Discount. Co., 459 U.S. 56, 58 (1982)
(per curiam), the instant motions for appointment of counsel
and an extension are not aspects of Spencer's case on
appeal. Accordingly, the Court considers Spencer's
seeks an extension of time in which to file a motion under 28
U.S.C. § 2255, noting his awareness of the one-year
statute of limitations applicable to such motions. (Mot. for
Extension at 1.) Both the docketed and original copies of
Spencer's Motion for an Extension are so faintly printed
as to be nearly illegible, but Spencer appears to state that
the basis for his motion arises under Johnson.
(See id.) Explaining his need for additional time,
Spencer appears to argue that his facility has withheld his
legal materials, and that periods of confinement in the
facility's Special Housing Unit, or “SHU, ”
and transfer between prisons, have hindered his filing
2255(a) provides a limited means of relief for prisoners
claiming a right to release from custody based on sentencing
errors. See United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (citation omitted). A one-year statute
of limitations applies to Section 2255 motions, which runs
from the latest of:
(1) The date on which the judgment of conviction becomes
(2) The date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from ...