Simmons v. United States of America

Filing 20

ORDER ADOPTING the Magistrate Judge's 16 Report and Recommendation, and Granting Respondent's 9 Motion to Dismiss. Simmons' petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 is Dismissed. The Clerk of Court is directed to enter the appropriate judgment of dismissal and to close this case. Simons is hereby Denied a certificate of appealability, and he is Denied leave to appeal in forma pauperis. Signed by Chief Judge Lisa G. Wood on 8/5/2015. (csr)

N the Oniteb Stateo flitritt Court
for the boutbern Morta Of eorgia
3runtuitk JDibiion
EVERETTE SIMMONS,
Petitioner,
V.

WARDEN SUZANNE HASTINGS,
Respondent.

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CIVIL ACTION NO.: CV214-183

ORDER

Presently before the Court are Petitioner Everette Simmons'
("Simmons") Objections to the Magistrate Judge's Report and
Recommendation dated June 18, 2015. Dkt. No. 16. After an
independent and de novo review of the entire record, the Court
OVERRULES Simmons' Objections, dkt. no. 19, and CONCURS with the

Magistrate Judge's Report and Recommendation. The Magistrate
Judge's Report and Recommendation, as supplemented herein, is
ADOPTED as the opinion of the Court. Consequently, Respondent's

Motion to Dismiss, dkt. no. 9, is GRANTED, and Simmons' petition
for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241,
dkt. no. 1, is DISMISSED.

The Clerk of Court is DIRECTED to

enter the appropriate judgment of dismissal and to CLOSE this
case. Furthermore, for the reasons stated in the Magistrate

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Judge's Report and Recommendation, Simmons is hereby DENIED a
certificate of appealability, and he is DENIED leave to appeal
in forma pauperis.
I. Background

Simmons is currently incarcerated at the Federal
Correctional Institution in Jesup, Georgia. Simmons was
convicted in the Eastern District of Missouri after a jury trial
of conspiracy to distribute and possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 846 and
841(a)(1). Simmons was sentenced to 110 months' imprisonment.
Dkt. No. 9-8, p. 2. Simmons' trial counsel filed an Anders v.
California, 386 U.S. 738 (1967), brief with the Eighth Circuit
Court of Appeals and challenged the Government's trial
witnesses' credibility. Simmons filed a pro se brief to
challenge the district court's drug quantity and sentence
enhancement determinations. The Eighth Circuit affirmed the
judgment of the Eastern District of Missouri. United States
Simmons, 404 F. App'x 100 (8th Cir. 2010),

V.

cert. denied, Simmons

v. United States, No. 10-10346, 131 S. Ct. 2978 (June 6, 2011).
In 2011, Simmons filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 in the Eastern
District of Missouri. In that motion, Simmons asserted: his
involvement in the conspiracy rested solely on his coconspirators' statements of past activities they already
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achieved, in violation of Federal Rules of Evidence
801(d) (2) (E); trial counsel was ineffective by not challenging
the use of the Government's expert, Salvatore Cira; the jury was
tampered with because a Drug Enforcement Agency agent had a
conversation with a juror; the prosecution used a surprise
rebuttal witness, Amanda Gabriel; counsel was ineffective
because he failed to file a motion for judgment of acquittal;
the Government presented a false date for the end of the
conspiracy, which was a deliberate deception; he was prejudiced
because his counsel was ineffective; and prosecutorial
misconduct. Dkt. No. 9-6, pp. 21-44. In denying Simmons'
motion, the Eastern District of Missouri determined that
Simmons' ineffective assistance of counsel claims were without
merit and that he had procedurally defaulted on his remaining
claims. Dkt. No. 1-1, pp. 3-15. Simmons filed a motion for
reconsideration of the order denying his Section 2255 motion,
and the Eastern District of Missouri denied his motion. Simmons
filed an appeal, and the Eighth Circuit denied Simmons a
certificate of appealability and dismissed his appeal. Dkt.
No. 9, p. 3. The United States Supreme Court denied Simmons'
petition for writ of certiorari. Simmons v. United States,
No. 13-7948, 134 S. Ct. 1045 (Jan. 27, 2014)
Simmons commenced this action on December 29, 2014, by
filing a petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2241. Simmons offered numerous arguments in support of
his Petition. He asserted he was denied a fair and impartial
trial, in violation of the Sixth Amendment, as well as the due
process clauses of the Fifth and Fourteenth Amendments. Simmons
also asserted the indictments against him were defective because
the indictments listed the end of the conspiracy as occurring on
December 4, 2008, and July 9, 2009, even though the evidence at
trial showed the conspiracy ended on October 30, 2008. Dkt.
No. 1, p. 2.
Additionally, Simmons alleged the trial court erred by
denying his motion to sever, which deprived him of "an
appreciable chance for acquittal[.]" Id. at P. 12. He averred
his co-conspirators' statements were admitted improperly, in
violation of Federal Rules of Evidence 801(d) (2) (E) . Id. at
p. 14. Simmons asserted the trial court also allowed one of his
co-conspirators to offer perjured testimony. Id. at p. 17.
Simmons also contended the trial court erred by allowing
Salvatore Cira to provide his expert testimony regarding drug
couriers' practices as substantive evidence. Id. at p. 18. He
further stated a Drug Enforcement Agency agent had a private
conversation with a juror, and the trial judge did not conduct a
"proper" hearing to determine whether that contact was harmless.
Id. at p. 20. Simmons averred the Government's rebuttal
witness, Amanda Gabriel, should have been excluded because her
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testimony was irrelevant and misled the jury. Id. at p. 23.
Finally, Simmons asserted the trial court erred in denying his
valid motion for acquittal because the jury could not have found
him guilty of the charged offenses based on the evidence
presented. Id. at p. 24.
The Magistrate Judge determined Simmons failed to satisfy
Section 2255's savings clause. Dkt. No. 16,

pp. 5-6. The

Magistrate Judge also determined Simmons' Section 2241 petition
was nothing more than an attempt to file a second or successive
Section 2255 motion pursuant to 28 U.S.C. § 2255(h). Id. at
p. 6. Accordingly, the Magistrate Judge recommended
Respondent's Motion to Dismiss .be granted and Simmons' petition
be dismissed.
Simmons filed Objections to the Magistrate Judge's Report
and Recommendation. In his Objections, Simmons maintains his
Federal Rule of Evidence 801(d) (2) (E) claim was "fraudulently
procedurally barred" by the trial court judge.' Dkt. 19, p. 2.
Simmons asserts this issue was not raised on direct appeal,
which reveals an instance of ineffective assistance of counsel
since his counsel filed an Anders brief. According to Simmons,
his Rule 801(d) (2) (E) claim "is a very serious and [meritorious]
issue[,]" and the failure of the district court judge to rule on
1

A statement which "is offered against an opposing party and" "was
made by the party's coconspirator during and in furtherance of the
conspiracy[ ]" is not hearsay. Fed. R. Evid. 801(d) (2) (E).
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the merits of this claim "warrants [his] conviction to be
overturned." Id.
The basis of Simmons' Rule 801(d) (2) (E) argument before the
Eastern District of Missouri court was that hearsay statements
were used against him in violation of Rule 801(d) (2) (E) because
these statements were made to authorities after the end of the
conspiracy. Dkt. No. 9-6, p. 5. Simmons also argued his
appointed counsel was ineffective because he failed to review
and understand the hearsay exceptions and did not present any
argument against these statements' admissibility. Id. at
pp. 21-22. Simmons averred that, if the admissibility of these
statements would have been challenged, his counsel "would have
prevented a miscarriage of justice and would have been able to
file a proper motion to have the case dismissed." Id. at p. 22.
Upon review of Simmons' motion and the Government's
response thereto, the Eastern District of Missouri grouped
Simmons' grounds for relief in three (3) general categories:
prosecutorial misconduct, jury tampering, and ineffective
assistance of counsel. Dkt. No. 9-8, p. 4. As relevant here,
the Eastern District of Missouri noted Simmons' assertion that
the Government deliberately deceived the court by giving a false
date for the end of the conspiracy so that it could use
statements from his coconspirators, in violation of
Rule 801(d)(2)(E). Id. The Missouri court determined this
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issue was either decided adversely on appeal or could have been
raised on appeal, which foreclosed consideration in his
Section 2255 motion absent a showing of cause and prejudice.
Id. at pp. 7-8. That court also noted Simmons' assertion was
"merely an attempt to put a new spin on the credibility
challenge that was previously determined on direct appeal, and
is thus procedurally defaulted." Id. at p. 8. The Eastern
District of Missouri noted that, on Simmons' direct appeal, the
Eighth Circuit Court of Appeals had: concluded sufficient
evidence supported Simmons' conviction; held that credibility
determinations were within the jury's province; and made an
independent review of the record but found no nonfrivolous
issues for appeal. Id.
As to Simmons' contention his counsel provided ineffective
assistance for failing to file a pretrial motion to challenge
the statements of his coconspirators, the Eastern District of
Missouri determined Simmons' claim must fail. First, the court
noted the record refuted Simmons' assertions, as Simmons had
waived his right to file any pretrial motions in open court and
under oath. Id. at p. 9. The Missouri court found Simmons'
waiver to be a strategic decision, and he failed to satisfy the

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Strickland v. Washington,

466 U.S. 668 (1984),

standard

on this

or any other ineffective assistance claim. Id.
Contrary to Simmons' assertions in his Objections, the
Eastern District of Missouri addressed his Rule 801(d) (2) (E)
arguments as a claim of prosecutorial misconduct and as a claim
of ineffective assistance of counsel. Simmons raised his Rule
801(d) (2) (E) argument in his motion for reconsideration of the
denial of his Section 2255 motion, and claimed he was entitled
to his requested relief. Mot. for Recons. at 3-4, Simmons v.
United States of America, (E.D. Mo. Nov.

26, 2012), ECF No. 14.

The Missouri court found Simmons' motion was nothing more than a
reiteration of his Section 2255 motion, which the court had
already considered and rejected. Mem. & Order at 6, Simmons v.
United States of America, (E.D. Mo. Mar.

5, 2013), ECF No. 20.

II. Discussion
As the Magistrate Judge determined, Simmons fails to
satisfy Section 2255's savings clause to permit him to proceed

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"A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable." Strickland v.
Washington, 466 U.S. 668, 687 (1984)
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with his Section 2241 petition. To proceed under Section 2241,
Simmons must show the remedy afforded by Section 2255 is
"inadequate or ineffective" to challenge the validity of his
conviction. Taylor v. Warden, FCI Marianna, 557 F. App'x 911,
913 (11th Cir. 2014) . It is evident Simmons is displeased with
the Eastern District of Missouri's determination that his Rule
801(d) (2) (E) claim was procedurally defaulted as a prosecutorial
misconduct claim or, in the alternative, was a non-meritorious
ineffective assistance of counsel claim. Simmons' displeasure
with this ruling, however, is an insufficient basis for relief
pursuant to Section 2241. See Jones v. Warden, FCC Coleman
Medium, 520 F. App'x 942, 945 (11th Cir. 2013) (noting the mere
fact that a Section 2255 motion is procedurally barred does not
make that Section's remedy inadequate or ineffective); see also
Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003) (stating a
petitioner "has the burden of demonstrating Section 2255's
relief" is 'unavailable or ineffective[ ]', and to do so, there
must be more than a procedural barrier to bringing a Section
2255 motion. . . . This court has held a § 2255 motion is not
'inadequate or ineffective' merely because ' 2255 relief has
already been denied[ ]'") (internal citations omitted). Simmons
fails to meet his burden of demonstrating Section 2255's remedy

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is ineffective or inadequate, and he cannot proceed in this
Court via his Section 2241 petition as a result. 3

III. Conclusion
Simmons' Objections, dkt. no. 19, are OVERRULED.

The

Magistrate Judge's Report and Recommendation, as supplemented

By Simmons' own admission, neither he nor his attorney raised a Rule
801(d) (2) (E) argument on appeal. Dkt. No. 19, p. 5. As the Eastern
District of Missouri noted, this is an issue which could have been
raised on appeal, but Simmons (who also filed a pro se brief) did not,
which caused him to procedurally default this argument. Dkt. No. 9-8,
p. 8. In both the Eleventh Circuit and the Eighth Circuit, a
petitioner's failure to raise a claim on direct appeal results in
procedural default of that claim, which can only be overcome with a
showing of cause for the default and resultant prejudice or a showing
of actual innocence.
In the Eleventh Circuit, under the procedural default rule, "a
defendant generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant is
barred from presenting that claim in a § 2255 proceeding." McKay v.
United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (internal citation
and punctuation omitted). The procedural default rule "'is neither a
statutory nor a constitutional requirement, but it is a doctrine
adhered to by the courts to conserve judicial resources and to respect
the law's important interest in the finality of judgments.'" Id.
(quoting Massaro v. United States, 538 U.S. 500, 504 (2003)). There
are two exceptions to the procedural default rule. A defendant can
overcome "application of the procedural default bar by showfing] cause
for not raising the claim of error on direct appeal and actual
prejudice from the alleged error." Id. (internal citation omitted)
(alteration in original) . "Under the actual innocence exception—as
interpreted by current Supreme Court doctrine—a movant's procedural
default is excused if he can show that he is actually innocent either
of the crime of conviction or, in the capital sentencing context, of
the sentence itself." Id. (citing Dretke v. Haley, 541 U.S. 386, 388
(2004))
The Eighth Circuit has stated, "[a] § 2255 petition is not a
second direct appeal and issues raised for the first time in a § 2255
petition are procedurally defaulted." Meeks v. United States, 742
F.3d 841, 844 (8th Cir. 2014) (citing Becht v. United States, 403 F.3d
541, 545 (8th Cir. 2005)) . If a petitioner does not allege he is
"actually innocent", he "must demonstrate cause and actual prejudice
to excuse their procedural default." Id. (citing Charboneau v. United
States, 702 F.3d 1132, 1136 (8th Cir. 2013)). Under both Eleventh
Circuit and Eighth Circuit precedent, Simmons cannot overcome his
procedural default.
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herein, is adopted as the opinion of the Court. Respondent's
Motion to Dismiss, dkt. no. 9, is GRANTED.

Simmons' petition

for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241,
is DISMISSED.

The Clerk of Court is DIRECTED to enter the

appropriate judgment of dismissal and to CLOSE this case.
Simmons is DENIED a certificate of appealability. Simmons is
also DENIED in forma pauperis status on appeal.
SO ORDERED,

this

day of

____

, 2015.

LISA GODEYO CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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