United States District Court, D. Maryland
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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.
Motion to Vacate followed.
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).
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. Frady456 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 ...