Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simmons v. United States

United States District Court, E.D. Missouri, Eastern Division

October 24, 2016

ROBERT SIMMONS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CAROL E JACKSON UNITED STATES DISTRICT JUDGE

         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) 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.