Simmons v. United States of America

Filing 11

MEMORANDUM: For the reasons discussed above, the Court concludes that motions and the files and records of this case conclusively show that Simmons is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts his mo tion to vacate. Therefore, the motion will be denied without an evidentiary hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Court finds that Simmons has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An appropriate Order will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 10/24/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT SIMMONS,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

Case No. 4:13-CV-02002-CEJ

MEMORANDUM
This matter is before the Court on the pro se petition of Robert Simmons on
a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
In the alternative, Simmons requests that the Court conduct an Evidentiary
Hearing. The United States has filed a response in opposition, and the issues are
fully briefed.
I.

Procedural Background

On January 25, 2012, Simmons pled guilty to knowingly and intentionally
distributing a mixture or substance containing heroin, in violation of 21 U.S.C.
§ 841(a)(1). United States v. Simmons, No. 4:11-CR-00442-CEJ, [Doc. #42 at 4].
The government agreed not to pursue a statutory enhancement under 21 U.S.C. §
851(a) in exchange for the defendant’s guilty plea. Id., [Doc. #27 at 1–2]. The
parties further stipulated that the Court would not be bound by the plea
agreement’s terms. Id. at 1. On April 20, 2012, the Court sentenced Simmons to a
235-month term of imprisonment. Id., [Doc. #39 at 2]. The judgment and sentence
were affirmed on appeal. Id., [Doc. #48].
On October 7, 2013, Simmons filed his present motion to vacate, pursuant to

28 U.S.C. § 2255. [Doc. #1]. In that motion, Simmons asserts a claim of ineffective
assistance of counsel based on allegations that his attorney (1) erroneously advised
him as to the predicted sentences associated with the government’s plea offer, and
(2) failed to communicate an earlier, more favorable plea offer to him. Id.
II. Factual Background
It is undisputed that on December 1, 2010, Simmons knowingly distributed
heroin to Betty Brown. United States v. Simmons, No. 4:11-CR-00442-CEJ, [Doc.
#27 at 2]. That evening, Ms. Brown died of acute heroin intoxication.
On October 20, 2011, a grand jury indicted Simmons for distribution of
heroin in violation of 21 U.S.C. § 841(a). According to the government, Michael
Dwyer (Dwyer), counsel to Simmons, then approached the government regarding a
joint sentence recommendation. [Doc. #5 at 2]. The government told Dwyer that it
would be willing to recommend a fifteen-year sentence. Id. As a second option, the
government offered to stipulate to a guideline sentence of 235-240 months and to
allow Simmons to argue for a below-guideline sentence. Id.
The

parties

disagree

about

what

occurred

after

the

aforementioned

discussions between Dwyer and the government. Simmons claims that Dwyer never
communicated the fifteen-year offer to him. [Doc. #1 at 5]. In his affidavit, Dwyer
states that he discussed both plea offers with Simmons on January 8 and January
24, 2013. [Doc. #7 at 2]. Specifically, Dwyer states that “[d]uring my discussions
with Simmons on January 8 and January 24, 2013, I told him of the government’s
offer to recommend a 15-year sentence and my advice to reject this offer because I
thought we could do better.” Id. He further states that he “believed on the basis of
our discussions that Simmons: (1) understood the proposed alternatives; (2)

2

thought a 15-year sentence was excessive and unacceptable; and (3) understood
why I believed that there was a reasonable probability that the Court would impose
a sentence less than 15 years of imprisonment.” Id.
Simmons ultimately accepted the second offer at a change of plea hearing on
January 25, 2012, and gave the following answers under oath:
Q: [Judge] Mr. Simmons, have you had enough time to talk to
your lawyer about this case?
A: [Simmons] Yes, ma’am.
Q: And you have talked to him about whether or not you should
plead guilty?
A: Yes, ma’am.
Q: Are you satisfied with the way that Mr. Dwyer has handled
the case?
A: Yes, ma’am.
After an extended colloquy regarding the constitutional rights relinquished by his
guilty plea, Simmons testified as follows:
Q: Do you have any questions about the rights that you’re
giving up by pleading guilty?
A: No, ma’am.
Q: Now that you know what you’re giving up, do you still want
to plead guilty?
A: Yes, ma’am.
Q: Has anyone made any threats to you to force you to plead
guilty?
A: No, ma’am.
Q: Has anyone made a promise to you about the sentence that
you will receive?

3

A: No, ma’am.
Q: Apart from the plea agreement that you have with the
government, have any promises been made to you in exchange
for your guilty plea?
A: No, ma’am.
The Court also informed Simmons of its discretion in sentencing.
Q:
Okay, Mr. Simmons, in this document, you and the
government have agreed to certain provisions of the Sentencing
Guidelines. I’m referring to Paragraph 6 of the agreement which
begins on page six and ends on page seven. Do you understand
that I’m not required to follow any recommendation that you
and the government make concerning the guidelines?
A: Yes, ma’am.
Q: I will determine which sentencing guidelines apply in your
case. And if you disagree with my decision, that will not give
you the right to withdraw your guilty plea, do you understand?
A: Yes, ma’am.
Q: I will consider the Sentencing Guidelines and other factors in
determining your sentence. If you receive a sentence that is
worse than you expected, that also will not give you the right to
withdraw your guilty plea. Do you understand?
A: Yes, ma’am.
Q: The penalties for this offense include a sentence of not more
than 20 years in prison or a fine of not more than $1 million or
both. Do you understand?
A: Yes, ma’am.
United States v. Simmons, Case No. 4:11-CR-00442-CEJ, [Doc. #42 at 7, 9–10,
12–13].
Following the change of plea hearing, Dwyer wrote two letters to Simmons.
In the first letter, dated March 6, 2012, Dwyer wrote that he was sending Simmons’
plea agreement and apologized that it was “so delayed.” [Doc. #1-2 at 16].
4

Simmons claims that this letter was the first time Dwyer “disclose[d] any relevant
information concerning the terms of Simmons’ plea agreement.” [Doc. #1 at 9.]
In the second letter, dated March 26, 2012, Dwyer discussed what Simmons
“bargained for in [his] plea agreement.” [Doc. #1-2 at 18]. Specifically, Dwyer
related that (1) Simmons would not be further prosecuted, (2) that the government
would not allege the death resulting from the heroin sale in its indictment, which
would require a mandatory minimum sentence of twenty years, (3) that the
government would not file an information regarding Simmons’ prior drug conviction,
which would necessitate a mandatory life sentence, and (4) that the government
would permit Simmons to request a below-guideline sentence. Id. at 18–19. Dwyer
further wrote, “in sum, the essence of the plea agreement was that you avoided
mandatory, statutory penalties, that would be higher than you face under the plea
agreement.” Id. Additionally, Dwyer offered five reasons for believing the Court
would recommend a sentence “considerably less” than 235 months: (1) the
government’s recommendation of a 180-month sentence; (2) that Simmons’
guideline range would have been 15-21 months had Ms. Brown not died; (3) that
Ms. Brown was a long-time heroin addict who, by her medical training, knew of the
dangers of heroin use; (4) that Simmons was a heroin addict who sold drugs
primarily to support his habit; and (5) that Simmons was employed at the time of
the offense. Id. Dwyer wrote that “[w]e will argue these factors vigorously in a
sentencing memorandum to the court and at the time of sentencing. I cannot,
however, give you a precise, specific number of months that Judge Jackson will
impose because I know that she treats each case individually and cannot know
precisely how these mitigating factors will influence her judgment.” Id. at 20. In the

5

closing paragraph of the March 26 letter, Dwyer cautioned Simmons against
challenging his initial plea agreement, stating “[i]f you decide to tell Judge Jackson,
either by letter or orally at sentencing, that you were duped into signing the plea
agreement and pleading guilty, you will undoubtedly make things much worse for
yourself.” Id. at 20.
On April 20, 2012, Simmons appeared for sentencing. Dwyer objected to a
portion of the presentence report on the grounds that it “didn’t reflect that, had
[Simmons] not pled guilty, the government would have superseded to charge a 20year mandatory minimum offense; and that he was also liable to an Information
under Section 851 that would have mandated that the penalty be life imprisonment
with no alternative for the Court.” United States v. Simmons, Case No. 4:11-CR00442-CEJ, [Doc. #42 at 19]. The Court overruled the objection. Id. at 23. Dwyer
then presented arguments for a downward variance below the guideline range. Id.
at 26–30, 35.
After hearing the parties’ arguments the Court explained its reasons for a
sentence within the guideline range:
The Court: Now, the request has been made for a downward
variance, and I believe that the arguments in favor of a
downward variance are certainly significant. But I don’t believe
that a downward variance is appropriate in this case.
And one of the reasons is that, as I said before, Mr.
Simmons received a sentence of 15 years in prison for a drugtrafficking crime. He was released from prison on parole, and
the fact that he faced the possibility of revocation of his parole
and completion of the entire 15-year sentence did not deter him
from going out to commit more crimes. The fact that Mr.
Simmons was employed – legitimately employed. I mean –
seems to be inconsistent with a claim he was simply selling
drugs to get money to pay for his own drugs.

6

And Mr. Simmons went beyond being simply a heroin
addict to a heroin distributor. And unfortunately, that did result
in the death of Miss. Brown. I don’t believe that Mr. Simmons
intended to kill Miss Brown. I don’t believe that he possessed
the mental state that is required for a murder conviction. I
believe that he provided these drugs to Miss Brown because he
sold drugs, and she wanted drugs. She was a customer, and he
was a seller. It’s just that simple. But Congress has made it
clear that when someone is in the business of selling drugs or
giving drugs away or providing them by any means and if their
conduct results in the death of someone else, then that is going
to require some more serious consequences than if they had
just sold them to someone who didn’t die.
You are responsible for the effects and consequences of
your behavior. So although I have considered all of the factors
that have been presented to me as reasons for downward
variance, I’m not persuaded that a downward variance would be
appropriate; and I believe that a sentence within the guideline
range would be sufficient but not greater than necessary to
address
the
issues
of
punishment,
deterrence,
and
incapacitation.
III. Discussion
A prisoner may move for post-conviction relief under 28 U.S.C. § 2255 for
“transgressions of constitutional rights and for a narrow range of injuries that could
not have been raised on direct appeal, and, if uncorrected, would result in a
complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th
Cir. 1996). Specifically, § 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255.

7

A federal prisoner may therefore assert a claim that his conviction should be
set aside under § 2255 if his Sixth Amendment right to “effective assistance of
competent counsel” is violated. See Strickland v. Washington, 466 U.S. 668, 687
(1984); McMann v. Richardson, 397 U.S. 759, 771 (1970); Missouri v. Frye, 132 S.
Ct. 1399, 1404 (2012).
Strickland defined the burden a convicted defendant faces in asserting a
breach of this Sixth Amendment guarantee. 466 U.S. at 687. To prevail on an
ineffective assistance claim, a movant must show that his attorney=s performance
fell below an objective standard of reasonableness and that he was prejudiced
thereby. Id. at 687–88. With respect to the first Strickland prong, there is a strong
presumption that counsel=s conduct falls within the wide range of professionally
reasonable assistance. Id. at 689. In Strickland, the Court described the standard
for determining an ineffective assistance claim:
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel=s challenged conduct
on the facts of the particular case, viewed as of the time
of counsel=s conduct. A convicted defendant making a
claim of ineffective assistance must identify the acts or
omissions of counsel that are alleged not to have been
the result of reasonable professional judgment. The court
must then determine whether, in light of all the
circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance. In making that determination, the court
should keep in mind that counsel=s function, as elaborated
in prevailing professional norms, is to make the
adversarial testing process work in the particular case. At
the same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment.
Id. at 690.

8

To establish the “prejudice” prong, the movant must show “that there is a
reasonable probability that, but for counsel=s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. The failure to show
prejudice is dispositive, and a court need not address the reasonableness of
counsel=s performance in the absence of prejudice. United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).
The Strickland standards for ineffective assistance of counsel apply in the
guilty plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985). This is because the
guilty plea constitutes a critical stage of the criminal proceeding. Padilla v.
Kentucky, 130 S. Ct. 1473, 1486 (2010). The Supreme Court has held that
counsel’s role in the rejection or acceptance of a plea offer, the communication of
an alternative plea offer, and deportation or sentencing consequences of a plea, fall
within the purview of the Strickland inquiry. See Missouri v. Frye, 132 S. Ct. 1399
(2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012); Padilla, 130 S. Ct. 1473.
A. Standard for an Evidentiary Hearing
“A prisoner is entitled to an evidentiary hearing on a section 2255 motion
unless the motion, files and records of the case conclusively show that the prisoner
is not entitled to relief.” Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
“No hearing is required, however, ‘where the claim is inadequate on its face or if
the record affirmatively refutes the factual assertions upon which it is based.’”
Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (quoting Watson
v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (internal quotations omitted)).
A district court may therefore deny an evidentiary hearing where “(1) the
petitioner’s allegations, accepted as true, would not entitle the petitioner to relief,
9

or (2) the allegations cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact.”
Engelen, 68 F.3d at 240. Notably, contradictory affidavits are not always sufficient
to create a fact dispute necessitating an evidentiary hearing. Kingsberry v. United
States, 202 F.3d 1030, 1032 (8th Cir. 2000). There may be no reason to question
the credibility of one party’s affidavit whereas another may be inconsistent or
consists of “‘a single, self-serving, self-contradicting statement.’” Id. at 1032–33
n.6.
B. Grounds for Relief
(1) Ground One
In his first ground for relief, Simmons alleges ineffective counsel on the basis
that his attorney misrepresented the anticipated length of his sentence, thereby
inducing him to accept the government’s plea agreement. [Doc. #1 at 13].
Consequently, Simmons claims, his plea was “not truly knowing, intelligent, nor
voluntary.” Id. at 11.
As a preliminary matter Simmons misconstrues the standards for a voluntary
and intelligent plea. “[T]he decision to plead guilty before the evidence is in
frequently involves the making of difficult judgments.” McMann v. Richardson, 397
U.S. 759, 769 (1970). McMann emphasized, “that a guilty plea must be intelligently
made is not a requirement that all advice offered by the defendant’s lawyer
withstand retroactive examination in a post-conviction hearing.” Id. at 770. Rather,
the advice of an attorney need only be “within the range of competence demanded
by attorneys in criminal cases,” given that “uncertainty is inherent in predicting
court decisions.” Id. at 770–71; see also Tollett v. Henderson, 411 U.S. 258

10

(1973). And an involuntary plea is one that is “compelled within the meaning of the
Fifth Amendment,” (North Carolina v. Alford, 400 U.S. 25, 31 (1970)), rather than
a “voluntary expression of [a defendant’s] own choice.” See Brady v. United States,
397 U.S. 742, 748 (1970).
Here, Simmons has not shown that “‘trial counsel’s performance was so
deficient as to fall below an objective standard of reasonable competence, and that
the deficient performance prejudiced his defense.’” Nave v. Delo, 62 F.3d 1024,
1035 (8th Cir. 1995) (quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir.
1992)). First, in his affidavit, Dwyer states that he “reviewed the proposed plea
agreement” with Simmons on two occasions before his plea. [Doc. #7 at 1]. He
further attests that he thought Simmons “understood why [he] believed that there
was a reasonable possibility that the Court would impose a sentence less than 15
years of imprisonment.” [Doc. #7 at 2 (emphasis added)]. Second, in the March
26, 2012 letter, counsel provided reasonable grounds for his belief that the Court
would impose a sentence below 235 months. [Doc. #1-2].

Dwyer specifically

stated that although he would present all mitigating factors to the Court, he could
not “give [Simmons] a precise, specific number of months that Judge Jackson will
impose . . .” [Doc. #1-2 at 3]. The fact that the Court imposed a longer sentence
than counsel anticipated does not render his advice unreasonable or necessitate a
finding that his performance was below the “range of competence demanded of
attorneys in criminal cases.” Theus v. United States, 611 F.3d 441, 446 (8th Cir.
2010); see also Ball v. United States, No. 12-3394-CV-S-RED, 2013 WL 1489474,
at *2 (W.D. Mo. Apr. 10, 2013) (discussing how counsel’s advice regarding a
sentence “while ultimately incorrect, was reasonable”). Moreover, as the plea

11

transcript demonstrates, any misperception that Simmons may have had regarding
his sentence was cured by the Court’s in-depth explanation of its discretion in his
case. See Mueller v. Wallace, No. 4:12-CV-1199-HEA, 2014 WL 7003779, at *8
(E.D. Mo. Dec. 10, 2014). For those reasons, Simmons’ plea was knowing and
intelligent. Moreover, Simmons has not shown that the plea was not made
intelligently and voluntarily.
And finally, even if this Court were to reach the second prong of the
Strickland test, there is no evidence of prejudice here. The Court was not required
to accept any sentencing recommendation agreed to by the parties. See Fed. R.
Crim. P. 11(c)(5) (describing procedure to be followed when court rejects a plea
agreement under Rule 11(c)(1)(C) for a specific sentence or sentencing range).
Also, the sentencing hearing transcript demonstrates that the Court saw no reason
to depart below the sentencing guidelines, regardless of the recommendations of
the parties. See Davis v. Kelley, No. 5:13-CV-00129-SWW-JTR, 2015 WL 1423866,
at *5 (E.D. Ark. Mar. 27, 2015) (holding that even if the defendant had agreed to a
plea offer, there was no showing that “the trial court would have accepted it,” and
consequently that the petitioner did not demonstrate prejudice). Accordingly, no
prejudice has been demonstrated as “[i]t is not sufficient for a defendant to show
that the error(s) had some ‘conceivable effect’ on the result of the proceeding
because not every error that influences or affects a proceeding undermines the
reliability of the outcome of the proceeding.” Odem v. Hopkins, 382 F.3d 846, 850
(8th Cir. 2004) (quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)).
(2) Ground Two

12

In his second ground for relief, Simmons alleges that counsel failed to inform
him of a more favorable plea offer. [Doc. #1 at 17]. Simmons argues that had he
been aware of the 180-month offer, he would have accepted it. Id. at 12.
“[D]efense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). Accordingly, if a plea
offer is not communicated to a criminal defendant, the first factor of the Strickland
test is met. Id. at 1408–09. To satisfy the prejudice prong of the Strickland test,
the defendant in this sort of case need not prove that “he would have proceeded to
trial absent ineffective assistance,” but rather, “must demonstrate a reasonable
probability they would have accepted the earlier plea offer had they been afforded
effective assistance of counsel.” Id. at 1409–10. Moreover, “[d]efendants must also
demonstrate a reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it . . .” Id.
Simmons’ claim of ineffective assistance of counsel on this second ground
fails. There is a factual dispute that would affect the determination of whether
Simmons received effective assistance of counsel. However, the Court need not
reach this factual question or hold an evidentiary hearing. This is because the
second Strickland factor is not met here. Simmons has not shown prejudice.

In

light of the stated reasons for a sentence within the 235-240 month guideline
range, it is evident that the Court would not have accepted a plea agreement for a
lesser sentence.

Therefore, Simmons has not demonstrated “a reasonable

probability” that an alternative plea agreement “would have been entered without .

13

. . the trial court refusing to accept it.”1 Missouri v. Frye, 132 S. Ct. 1399, 1408
(2012).
III.

Conclusion

For the reasons discussed above, the Court concludes that motions and the
files and records of this case conclusively show that Simmons is not entitled to
relief under 28 U.S.C. § 2255 based on any of the claims he asserts his motion to
vacate. Therefore, the motion will be denied without an evidentiary hearing. See
Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Court
finds that Simmons has not made a substantial showing of the denial of a
constitutional right. Therefore, the Court will not issue a certificate of appealability.
See 28 U.S.C. § 2253.
An appropriate Order will accompany this Memorandum.

CAROL E JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of October, 2016.

1

Simmons’ citation to Burrage v. United States, 134 S.Ct. 881 (2014), in his reply brief
[Doc. #9], is not persuasive. There is no indication in the record that the Court would have
found that the heroin Simmons sold was not “an independently sufficient cause of the
victim’s death.” Burrage, 132 S. Ct. at 892.

14