United States District Court, E.D. Missouri, Southeastern Division
BRADY O. SIMMONS, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Brady O.
Simmons, a person in federal custody. On November 10, 2015,
Simmons plead guilty before this Court to the offense of
felon in possession of a firearm and, on February 11, 2016,
this Court sentenced Simmons to the Bureau of Prisons for a
term of 110 months, the mandatory minimum sentence.
Simmons' § 2255 motion, which is based on several
allegations of ineffective assistance of counsel, is fully
briefed and ripe for disposition.
August 20, 2015, Movant Brady O. Simmons (Simmons) was
charged in a one count indictment of being a convicted felon
in possession of a firearm, in violation of 18 U.S.C. §
PLEA AGREEMENT AND GUILTY PLEA
November 10, 2015, Simmons appeared with his attorney and
pled guilty to being a convicted felon in possession of a
firearm, as charged in the Indictment. Simmons executed a
Plea Agreement with his counsel and the Government. (Doc. 31)
The Plea Agreement noted that “[t]he defendant has been
fully apprised by defense counsel of [his] rights concerning
appeal and fully understands the right to appeal the sentence
under Title 18 U.S.C. § 3742.” (Doc. 31, p. 8)
Plea Agreement, Simmons also agreed “to waive all
rights to contest the conviction or sentence in any
post-conviction proceeding, including one pursuant to 28
U.S.C. § 2255, except for claims of prosecutorial
misconduct or ineffective assistance of counsel.”
Id. Simmons agreed that he was “fully
satisfied with the representation received from defense
counsel. The defendant has reviewed the government's
evidence and discussed the government's case and all
possible defenses and defense witnesses with defense counsel.
Defense counsel has completely and satisfactorily explored
all areas which the defendant has requested relative to the
government's case and any defenses.” Id.
at p. 11.
THE PRESENTENCE REPORT
Presentence Report (PSR) provided that Simmons' Base
Offense Level was 24. (PSR ¶ 22) As a Special Offense
Characteristic, Simmons was subject to a four level
enhancement for using or possessing any firearm or ammunition
in connection with another felony offense, for committing
property damage, pursuant to USSG §2K2.1(b)(6)(B). (PSR
¶ 23) Prior to officers seizing the shotgun, Simmons had
shot into a residence with the shotgun. (PSR ¶¶
11-14) Simmons committed felony property damage by shooting
into a residence. Mo. Rev. Stat. § 569.100. Shooting a
firearm into a dwelling house is also a Class D felony under
Missouri law. Mo. Rev. Stat. § 571.030. A three level
reduction for acceptance of responsibility brought his total
offense level to a 25. (PSR &&29-31) Simmons'
criminal history was extensive. His total criminal history
score was 13, which established a criminal history category
of VI. (PSR &46). Based on a total offense level of 25
and a criminal history category of VI, Simmons' guideline
imprisonment range was 110 months to 137 months. (PSR
THE SENTENCING HEARING
February 11, 2016, Simmons was sentenced to 110 months, which
was at the low end of the guideline range. (Doc. 39)
did not file an appeal of his conviction or sentence. Instead
his counsel filed a notice indicating Simmons had not
requested his counsel file a notice of appeal. (Doc. 41)
Simmons' signature followed the statement by his counsel,
that “Defense counsel has explained to defendant
his/her right to appeal and defendant has not requested that
counsel file a Notice of Appeal.” Id. Both
Simmons and his counsel signed the Notice on February 11,
MOTION FOR POST-CONVICTION RELIEF PURSUANT TO 28 ...