Simms v. Horne

Filing 20

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1 ) Simms is not "in custody" fo r the purposes of 28 U.S.C. § 2254(a). Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. Signed by Magistrate Judge Leslie A Bowman on 12/5/2014. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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Thomas C. Horne, Attorney General of the)
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State of Arizona,
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Respondent.
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Donald William Simms, II,

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No. CIV 14-2194-TUC-CKJ (LAB)
REPORT AND RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254, filed on June 24, 2014, by Donald William Simms, II, an inmate confined in the United

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States Prison in Inez, Kentucky. (Doc. 1); (Doc. 17)

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Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate
Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

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The Magistrate Judge recommends the District Court, after its independent review of the

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record, enter an order dismissing the petition. Simms is not “in custody” for the purposes of

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28 U.S.C. § 2254(a).

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Summary of the Case

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Simms was charged by the state with conspiracy to transport and/or possess marijuana

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for sale in criminal case CR66597. (Doc. 11-1, pp. 3-4) While that case was proceeding,

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Simms was involved in another drug conspiracy, which was subsequently charged by the state

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in criminal case CR20001137. Id. Simms entered into plea agreements in both matters. Id.

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In a combined proceeding, he pleaded guilty to two counts of conspiracy. Id. On August 28,

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2000, the trial court sentenced Simms to intensive probation for five years and ordered him to

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serve 60 days in jail. Id.; (Doc. 1-2, pp. 30-33) In the pending petition, Simms challenges

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these two consolidated convictions. (Doc. 1)

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Simms subsequently was involved in another offense, which was prosecuted by the

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federal government and for which he received a sentence of 65 months. (Doc. 11-1, pp. 3-4)

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In August of 2003, as a result of this federal offense, Simms’s consolidated probation sentence

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was revoked by the state court. Id. The state court imposed no additional sentence of

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incarceration because Simms was already serving a federal sentence for the underlying offense.

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(Doc. 11-1, p. 12); (Doc.11-1, p. 24)

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In 2010, Simms filed a Rule 32 proceeding in the consolidated cases arguing his trial

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counsel had been ineffective. (Doc. 11-1, p. 15) The trial court denied the petition because

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cases CR66597 and CR20001137 were terminated in August of 2003. (Doc. 11-1, p. 24); (Doc.

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1-3, p. 14) The court of appeals dismissed his petition for review and issued its mandate in

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April of 2011. (Doc. 11-1, p. 4)

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Simms filed a second Rule 32 in March of 2012 arguing again that trial counsel had been

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ineffective. (Doc. 11-1, pp. 4-5) Specifically, he argued trial counsel failed to tell him about

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a plea offer received from the prosecutor in February of 2000 for case CR66597. (Doc. 11-1,

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p. 4) The petition was denied by the trial court and the court of appeals. (Doc. 11-1); (Doc.

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11-1, p. 4) The court of appeals held specifically that Simms’s claim of ineffective assistance

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was precluded pursuant to Ariz.R.Crim.P. 32.2(a)(2),(3) because he could have raised the issue

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in his first Rule 32 proceeding. (Doc. 11-1, p. 8)

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Simms is currently serving a federal sentence of 242 months imposed by the Eastern
District of Wisconsin on December 16, 2009. (Doc. 1, p. 12)

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On September 18, 2013, Simms was sentenced to a term of 1.75 years by Pima County

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Superior Court in case CR20122055-001. (Doc. 1, p. 12); (Doc. 11, p. 4, n. 1) Simms is now

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serving this state sentence concurrently with his federal sentence. (Doc. 1-2, p. 2); (Doc. 11,

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p. 4, n. 1)
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On June 24, 2014, Simms filed the pending petition for writ of habeas corpus pursuant

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to 28 U.S.C. 2254. He challenges his consolidated state court convictions in CR66597 and

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CR20001137. He claims (1) he has newly discovered evidence of trial counsel’s failure to

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communicate a plea offer to him in CR66597, (2) trial counsel was ineffective for failing to tell

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him of this favorable plea offer in February of 2000, and (3) his due process rights were

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violated because he did not get a “full and fair hearing.” (Doc. 1) He alleges he found in his

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CR66597 casefile a letter from the county attorney, dated February 22, 2000, offering a

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favorable plea, which his attorney never disclosed to him. (Doc. 1, p. 6)

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On August 21, 2014, the respondent filed an answer arguing among other things that this

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court has no jurisdiction over the petition because Simms is not “in custody” for the purposes

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of 28 U.S.C. § 2254(a). (Doc. 11) Simms filed a reply on October 24, 2014. (Doc. 19)

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Discussion

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The writ of habeas corpus affords relief to persons “in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The “in custody”

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requirement is fulfilled only if the habeas petitioner is “in custody” pursuant to “the conviction

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or sentence under attack at the time his petition.” Maleng v. Cook, 490 U.S. 488, 490-491, 109

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S.Ct. 1923, 1925 (1989).

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Here, Simms challenges his state court convictions in CR66597 and CR20001137. He

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is not, however, in custody pursuant to those convictions. He is in custody pursuant to a

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separate federal conviction, CR 08-086, and a separate state conviction, CR20122055-001.

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(Doc. 1, p. 12) (CR 08-086, E.D. Wis., 242 months, imposed 12/16/2009); (Doc. 11, p. 4, n.

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1). Accordingly, his petition is not cognizable and must be dismissed.

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Simms argues he is in custody pursuant to these state court convictions because his state

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court sentence in CR 20122055-01 was enhanced due to his prior convictions in CR66597 and

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CR20001137. (Doc. 19, p. 3); (Doc. 19-1, p. 5); (Doc 1-1, p. 2) The Supreme Court, however,

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has rejected this expansive view of the “in custody” requirement. Maleng v. Cook, 490 U.S.

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488, 491, 109 S.Ct. 1923, 1925 (1989) (rejecting the argument “that a habeas petitioner may
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be ‘in custody’ under a conviction whose sentence has fully expired at the time his petition is

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filed, simply because that conviction has been used to enhance the length of a current or future

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sentence imposed for a subsequent conviction.”).

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Simms also maintains his convictions have resulted in a loss of civil liberties. (Doc. 19,

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p. 4) Lingering collateral consequences, however, do not satisfy the “in custody” requirement.

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Maleng, 490 U.S. at 492, 109 S.Ct. at 26.

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Finally, Simms argues his petition should be construed as an attack on his 2012 state

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court conviction because the sentence in that case was enhanced by his prior state court

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convictions. Habeas corpus, however, may not be used to collaterally attack an expired

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conviction that was used to enhance the sentence under review. Lackawanna County Dist.

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Attorney v. Coss, 532 U.S. 394, 402, 121 S.Ct. 1567, 1573 (2001).

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1)

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Simms is not “in custody” for the purposes of 28 U.S.C. § 2254(a).

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.

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They do not permit a reply to a response.

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DATED this 5th day of December, 2014.

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