United States District Court, E.D. Missouri, Southeastern Division
ROBERT E. SIMMONS, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Robert E. Simmons, a person in federal custody. On July 17, 2012, Simmons was found guilty by a jury of the offense of felon in possession of a firearm, and on October 14, 2012, this Court sentenced Simmons to the Bureau of Prisons for a term of 87 months, a sentence within the sentencing guideline range. Simmons' § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
A. The Indictment.
On October 20, 2011, a Grand Jury in the Eastern District of Missouri, Southeastern Division, returned a one-count Indictment against Robert E. Simmons. The Indictment charged that on or about May 4, 2011, Simmons possessed a firearm that had affected interstate commerce after Simmons had been convicted of a felony, in violation of Title 18, United States Code, Section 922(g)(1). On October 20, 2011, Simmons made his initial appearance on the federal charge. After the initial appearance, the Federal Public Defenders Office was appointed to represent Simmons. Michael A. Skrien represented Simmons after that appointment. Simmons was arraigned on October 26, 2011. At that arraignment, Simmons pled not guilty to the charge.
B. Pretrial Motions.
On November 28, 2011, Simmons's attorney filed a Motion to Suppress Evidence and Statements. Simmons contended that the search of Simmons's vehicle that resulted in the discovery of the pistol Simmons was charged with possessing was an unconstitutional search. Simmons' motion also asked that the Court suppress his confession that occurred after his arrest, again, on Constitutional grounds. The Government filed its Response to Simmons' Motion on December 19, 2011. On December 21, 2011, a hearing was held to determine whether evidence in Simmons's case should be suppressed.
On April 4, 2012, United States Magistrate Judge Lewis M. Blanton issued his Report and Recommendation, recommending that Simmons' Motion to Suppress Evidence and Statements be denied. On April 18, 2012, Simmons' attorney filed an Objection to the Report and Recommendation. On the same day, this Court entered an order adopting the Report and Recommendation of Judge Blanton and denied Simmons' Motion to Suppress Evidence and Statements.
This Court then set the case for a jury trial on July 17, 2012.
The trial of Simmons took one day. The Government called the following witnesses who provided the proof set forth below.
On May 4, 2011, two Southeast Missouri Drug Task Force officers were conducting surveillance on a house in Cape Girardeau, Missouri. The officers, Mike Alford and Jason Young, were trying to identify people entering and leaving the residence. The officers were parked in an unmarked car about forty yards from the residence located at 41 South Hanover. (Trial Tr. pp. 35-36)
Around 10:15 p.m., a silver Chevrolet PT Cruiser drove down the street and parked in front of the residence. Two men got out of the vehicle and went inside the house. The officers did not recognize either of the men and decided to check the license number on the car. The officers drove their vehicle past the PT Cruiser, obtained the license number and returned to the same general area to park and watch the home. One officer reported the license number to his dispatcher, who informed the officers that it belonged to a rental vehicle. The officers were aware that rental vehicles are sometimes used in criminal activities. (Trial Tr. pp. 36-38, 40)
After a short time, two men came out of the residence, entered the PT Cruiser, and drove away. The two surveillance officers followed in their car and observed the PT Cruiser commit two different traffic violations. The officers contacted Brandon Farmer, a Cape Girardeau police officer, and asked him to stop the PT Cruiser for the traffic offenses and to identify the occupants. (Trial Tr. pp. 38-39)
Cape Girardeau police officers Brandon Farmer and William Underwood were patrolling that area of Cape Girardeau when the call came in. The PT Cruiser stopped on the side of the road at about the same time as the surveillance officers requested the traffic stop. Farmer and Underwood arrived on the scene while the PT Cruiser was parked on the side of the road. (Trial Tr. pp. 39-40)
Officer Farmer got out of his patrol car and began walking up to the PT Cruiser. The driver got out and started walking away. Farmer stopped the driver and started speaking to him. Farmer recognized the driver, Robert E. Simmons, and the passenger, Jerome Bridges. Farmer asked Simmons for consent to search the car. Simmons agreed to the search. Officer Underwood watched both Simmons and Bridges at the side of the roadway while Farmer conducted the search. Farmer looked under the passenger seat of the PT Cruiser and found a Jimenez, .380 caliber pistol, bearing serial number 143384. That pistol was manufactured in the state of Nevada and therefore traveled in interstate commerce before its discovery in Missouri. It was loaded with five rounds of ammunition. Farmer described the pistol as a "small gun." (Trial Tr. pp. 34, 89-94)
Officer Mike Alford was present at the Cape Girardeau city jail when both Simmons and Bridges were being processed. Simmons was in the holding cell and Bridges was in the nearby booking area. Alford overheard a conversation between the two men. Bridges asked Simmons why he would allow Bridges to "take his charge." Simmons replied that he would take care of it. (Trial Tr. pp. 46-48)
Officer Farmer also heard this conversation, but remembered different words. He reported that Bridges and Simmons were arguing and upset and that Bridges made the statement that he "couldn't go down for this." Farmer then heard Simmons make a statement to the effect of: "I've got this, cuz. I've done time. I'll do it again." (Trial Tr. pp. 94-96)
Lakeisha Lee, a resident of Cape Girardeau, Missouri, is Jerome Bridges' cousin. She knew Simmons through her children's babysitter. Lee and Simmons had rented the PT Cruiser shortly before Simmons' arrest. After renting the car, Lee and Simmons drove to Sikeston, Missouri. During the drive, Lee observed Simmons take a handgun from his person and put it in the side door pocket of the PT Cruiser. Simmons stated that he might have issues with someone in Sikeston and that he did not know who he was going to run into. Lee only saw the butt of the handgun, which she described as black, and saw that it was a small firearm. Lee agreed that the handgun that she saw in Simmons' possession on that drive was similar in appearance to the firearm taken from the PT Cruiser by Officer Farmer. (Trial Tr. pp. 51-57)
Lee had contact with Simmons and Bridges the day after their arrest. She had driven to the city jail to pick up Jerome Bridges. Simmons came out of the jail at the same time as Bridges. Lee agreed to give Simmons a ride back to his home. At that time, Lee knew that a handgun had been found in the PT Cruiser. Simmons told her that "nobody had anything to worry about; that he took his weight." Lee understood that Simmons meant that he told the police that the firearm was his. On cross-examination, Lee testified that she had heard that Simmons received the handgun from Jamarcus Jones. (Trial Tr. pp. 58-59, 79-81)
The day after the arrest of Simmons and Bridges, Detective Brian Vassalli and ATF Special Agent David Diveley met with Simmons at the Cape Girardeau city jail. Diveley asked Simmons about the firearm. Simmons replied that the pistol was his and that he had obtained the firearm from Shalimar Ross. Simmons said that Bridges was having a "feud" with someone and that was the reason for possessing the firearm. Simmons said they did not intend to hurt anyone and that he had the firearm "just in case." Simmons reported that he did not have to pay for the firearm because Ross had given it to him around April 30, 2011. (Trial Tr. pp. 105-36)
At the beginning of that trial, Simmons and the Government presented their Stipulation that Simmons was a previously convicted felon on the date of the federal offense and that the Jimenez pistol was a firearm as defined by federal statutes and that it affected interstate commerce. (Trial Tr. p. 34) The Government presented its evidence and rested. Simmons rested without presenting evidence. The jury was instructed and closing arguments were made by both parties. After deliberation, the jury returned a verdict finding Simmons guilty of being a felon in possession of a firearm. (CR, 20) This Court set Simmons' sentencing for October 15, 2012.
D. The Presentence Investigation Report.
A Presentence Investigation Report (P.S.R.) was prepared by United States Probation Officer Paul H. Boyd. That report recommended that Simmons' base offense level be set at 20, pursuant to U.S.S.G., § 2K2.1(a)(4)(A), because Simmons had a previous felony conviction for a qualifying controlled substance offense. (P.S.R., ¶ 18-26) Simmons had several felony and misdemeanor convictions, resulting in 26 criminal history points and a Criminal History Category of VI. His Guideline sentencing range was 70 to 87 months. (P.S.R., ¶¶ 46, 75)
E. Simmons' Pro-Se Motions.
On July 25, 2012, Simmons filed a motion styled "Defendant's Motion for Ineffective Assistance of Counsel." That motion alleged that (1) his attorney failed to file post-trial motions; (2) his counsel failed to file motions requested by Simmons; (3) his counsel failed to challenge the Indictment, chain of custody and failed to raise issues regarding violations of Simmons's Due Process Rights, failed to challenge statements from Government witnesses and failed to challenge the evidence based on DNA and laboratory tests; (4) his counsel failed to "expel" officers' reports as improperly written and for the lack of recording of their interviews; (5) his counsel failed to challenge Governmental misconduct regarding a lack of disclosure to Simmons of some evidence;
(6) his counsel did not object, at trial, to the Government's presenting evidence that it had not disclosed to Simmons before the trial; (7) his counsel did not file motions to "exclude" evidence; and that (8) his counsel allowed co-counsel to take over "most" of the proceedings without adequate preparation. The Government filed a Response to this Motion on August 23, 2012.
On September 18, 2012, Simmons filed his "Defendant's Motion to Vacate Based on Insufficient Evidence." In that motion, Simmons raised the same issues as were raised in his motion dated July 25, 2012, and included other grounds where he argued that the proof introduced at trial was insufficient to prove his guilty beyond a reasonable doubt or was inadmissible on various grounds.
On September 28, 2012, Simmons filed a motion styled "Writ of Actual Innocence Based on Previously Unknown or Untested Physical Evidence." This motion sought to have the District Court order that the handgun mentioned in the Indictment be subjected to DNA tests and fingerprint analysis.
The Government filed a Motion for an Upward Departure on ...