United States District Court, E.D. Missouri, Eastern Division
E JACKSON UNITED STATES DISTRICT JUDGE
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.
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].
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.
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.
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.
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) 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.”
ultimately accepted the second offer at a change of plea
hearing on January 25, 2012, and gave the following answers
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
A: Yes, ma'am.
Q: Are you satisfied with the way that Mr. Dwyer has handled
A: Yes, ma'am.
an extended colloquy regarding the constitutional rights
relinquished by his guilty plea, Simmons testified as
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