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Simmons v. United States

United States District Court, D. Maryland

May 21, 2019

DERRICK WENZEL SIMMONS Petitioner
v.
UNITED STATES OF AMERICA Respondent

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         Derrick Simmons, pro se, has filed a Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 131) and a further Motion styled "Motion for Disposition on the Merits of Pending Action" (ECF No. 162). The Court has considered the Motions and the Government's Opposition to same. For the reasons that follow, the Court DENIES Simmons' Motion to Vacate. His Motion for Disposition on the Merits, whatever that is intended to be, is MOOT.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 6, 2015, Simmons was charged by indictment with being a Felon in Possession of a Firearm. ECF No. 12. The charge also constituted a violation of conditions of the Supervised Release that Simmons was on at the time for a separate offense. See ECF No. 55 at 1 (Plea Agreement). A key fact of the Felon in Possession case was that Simmons was arrested while sitting in a car that had been stolen the night before. Id. at 9.

         On June 3, 2016, Simmons entered a guilty plea and admitted the violation. ECF No. 86 at 15, 9-11. His Plea Agreement, filed with the Court on June 6. 2016, included a "Factual and Advisory Guidelines Stipulation." ECF No. 55 at 4. That section explained that if Simmons obtained a three-level reduction for acceptance of responsibility, which he ultimately did, the final offense level would be ''either 17 ([the Government's] position) or 13 (the Defendant's position)." Id. at 5 (emphasis in original). The discrepancy between the possible offense levels depended on whether there would be a 4-level increase in the offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B) based on the firearm's use in connection with another felony offense, id, namely, the unauthorized use of a motor vehicle and/or theft of the motor vehicle. ECF No. 66 at 4 (Government's Sentencing Memorandum). The Government took the position that the increase applied, Simmons disagreed. The Plea Agreement included a waiver of appeal by which the Government was barred from appealing any outcome other than a sentence below the guidelines minimum for an offense level of 13 and Simmons was barred from appealing for any reason other than a sentence above the guidelines maximum for an offense level of 17. ECF No. 55 at 6.[1]

         Both Simmons and his attorney signed the Plea Agreement. ECF No. 55 at 8. Simmons specifically averred under oath that "I have read this agreement... and carefully reviewed every part of it with my attorney. 1 understand it, and I voluntarily agree to it. Specifically, I have reviewed the Factual and Advisory Guidelines Stipulation with my attorney, and I do not wish to change any part of it. I am completely satisfied with the representation of my attorney." Id., During the plea colloquy, Simmons re-confirmed under oath that he had reviewed the Agreement with his attorney and that his attorney had explained it to him. Id. at 14-15. The Government then recited the basic terms of the Agreement, including that the maximum sentence the Court could impose for the charge would be ten years imprisonment and that the final offense level would be 13 or 17, depending on the applicability of the disputed enhancement. Id. at 16-19. Simmons acknowledged that the Government's recitation was accurate. Id. at 20. Simmons also confirmed that he had discussed the sentencing guidelines with his attorney, id. at 22, and stated that he understood he would not be able to withdraw his plea simply because he did not like the Court's decision about which guideline range applied to him. Id. at 23.

         On September 1. 2016 the Court proceeded to sentencing. ECF No. 69. Based on the parties" arguments, sentencing memoranda, and the Pre-Sentence Report (PSR). the Court determined that the four-level enhancement advocated by the Government applied, making Simmons'' total offense level 17. ECF No. 85 at 18, 19. Because Simmons' criminal history category was determined to be IV, the guideline range for custody was 37 to 46 months. Id. at 19. A guidelines sentence of 12 to 18 months on the violation of Supervised Release was to run consecutively. Id.

         Once the guideline range was determined, however, the Government asked the Court to impose an upward variance sentence of 120 months-the statutory maximum for the charge- based on the circumstances of the charged offense and Simmons" extensive criminal history. Id. at 20-23. Simmons argued that a sentence within the guideline range was appropriate, especially given the extenuating circumstance that he was shot several times during his apprehension for the instant offense, which has caused lingering medical complications. Id. at 29. The Court ultimately sentenced Simmons to 108 months imprisonment on the Felon in Possession charge, followed by 12 months consecutive time for his violation of Supervised Release, a total of 120 months. ECF No. 85 at 38-39.

         On September 12, 2016. Simmons filed a notice of appeal. ECF No. 75. On August 11. 2017, the Fourth Circuit affirmed the Court's judgment. ECF No. 101.

         This Motion to Vacate followed.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, an incarcerated person in federal custody may file a motion challenging the legality of his sentence on one or more of the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

         However, post-conviction collateral attack is not a substitute for direct appeal. Before the Court can reach the merits of such a challenge, the movant must overcome certain procedural hurdles. One hurdle is the procedural default rule. See Massaro v. United Stales, 538 U.S. 500. 504(2003); United States v. Frady, 456 U.S. 152, 168-70 (1982). A claim which could have been but was not raised on a petitioner's direct appeal may not be raised in a § 2255 motion unless the petitioner (a) demonstrates cause for the failure to raise the claim on direct appeal, and (b) actual prejudice resulted from the error. Id. "The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel." United States v. Mikalajunas, 186 F.3d 490. 493 (4th Cir. 1999). The standard for prejudice is that the alleged error that led to the issue not being brought on appeal worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170.

         Likewise, a petitioner cannot re-raise arguments in a habeas petition that were already raised on direct appeal. Withrow v. Williams,507 U.S. 680, 721 (1993) (Scalia, J., concurring), Unite ...


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