Simpson v. United States, Case No. 4:11 CV 2058 RWS
| Decision Date | 11 April 2013 |
| Docket Number | Case No. 4:11 CV 2058 RWS |
| Parties | KENNETH SIMPSON, Petitioner v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Petitioner Kenneth Simpson has filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. Simpson claims that his plea was not voluntarily or knowingly entered into, he received ineffective assistance of counsel, and that this Court lacked jurisdiction over his criminal case. Simpson argues that, but for the ineffective assistance of his counsel, he would have insisted on going to trial.
For the reasons set forth below, I will deny Simpson's motion.
On March 18, 2010, Simpson was indicted by a federal grand jury in a two count indictment. Count I charged Simpson with receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). Count II charged Simpson with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On February 14, 2011, Simpson pleaded guilty to Count I, receipt of child pornography.
At his plea hearing, Simpson stated, under oath, that the Plea Agreement was true and correct. The Plea Agreement set forth the following facts:
In 2008, St. Louis County Police identified a computer located in the State of Missouri that was offering to participate in the distribution of known child pornography. (Plea Stip., ¶ 4) A subpoena issued to AT&T revealed that the subscriber was Mary Simpson. Id. Based upon this information, law enforcement officers applied for and obtained a search warrant for Mary Simpson's residence. Id. Law enforcement officers executed the warrant on February 11, 2009. Id. at 16. A forensic examination was conducted on the computers and media seized from Mary Simpson's residence. Id. A forensic examination of Kenneth Simpson's computer found that it contained a Western Digital hard drive. Id. A forensic examination of the Western Digital hard drive revealed that it contained thirteen (13) image files and six (6) video files depicting child pornography. Id. at 17.
At his plea hearing, Simpson told me, under oath, that he was satisfied with his counsel's representation. (Plea Hr'g Tr. at 6) Simpson told me that he had gone over his plea agreement repeatedly with counsel and that counsel answered all of Simpson's questions. Id. at 8. Simpson stated that no one had made any other promise or assurance to him in order to induce him to plead guilty. Id. at 14. Simpson stated that he understood he had the opportunity to plead not guilty and have a trial by jury, and that he knew there would be no trial if he entered a guilty plea. Id. at 6-7. At the conclusion of the hearing Simpson pleaded guilty to the charge of receipt of child pornography. Id. at 21.
On May 12, 2011, Simpson was sentenced to the mandatory minimum sentence of 60 months in prison and supervised release for life.
Simpson now claims, contrary to what he said under oath at his plea hearing, that his guilty plea was not made knowingly or voluntarily and that he received ineffective assistance ofcounsel. He also asserted that this Court lacked of jurisdiction to hear his criminal case.
In his 28 U.S.C. § 2255 motion, Simpson alleges the following grounds for relief:
1. His plea was not made knowingly or voluntarily because
(a) I did not correctly inform him of the potential range of his sentence and counsel misled Simpson as to the benefits and risks of trial;
(b) Counsel made other promises to Simpson; and
(c) I misled Simpson as to how sentencing would proceed in his case
2. He was denied effective assistance of counsel in violation of the Sixth Amendment when counsel failed to:
(a) file a pretrial motions after receiving accurate information concerning images from Simpson's computer;
(b) file a motion to suppress statements;
(c) file a motion to suppress the warrant due to staleness of information;
(d) assert a alcoholism defense;
(e) challenge this Court's jurisdiction;
(f) present evidence of prosecutorial misconduct;
(g) seek a better plea deal; and
(h) step aside to let Simpson file his own appellate brief
3. That this Court lacks jurisdiction because there is no sufficient interstate nexus and the charged conduct is not commercial.
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] 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; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (). A motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.' " United States v. Wilson, 997 F.2d 429, 431 (8th Cir.1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)).
"'Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir.2001)). One exception arises when there is a "miscarriage of justice," but the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 (noting that "the Court has emphasized the narrowness of the exception and has expressed its desire that it remain 'rare' and available only in the'extraordinary case.' " (citations omitted). Section 2255 ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
In his first ground for relief, Simpson alleges that his guilty plea was not intelligently entered and that it was not made knowingly and voluntarily. He asserts that I did not correctly inform him of the potential range of his sentence and that he did not understand the consequences of his plea. Simpson also claims that counsel informed him that he would be sent to a prison camp if he pleaded guilty and that he could earn time off by enrolling in sex offender treatment, drug treatment, and religious programs. In addition, Simpson alleges that I misled him as to how sentencing would proceed in his case. These claims have no merit..
Simpson waived his right to appeal these claims. In his Plea Agreement, Simpson agreed to "waive all rights to appeal all non-jurisdictional issues" including the taking or acceptance of the guilty plea and the factual basis for the plea. The Plea Agreement also stated that "[t]he defendant acknowledges being guilty of the crimes to which a plea is being entered." Simpson further agreed to "waive all rights to contest the conviction ... in any post-conviction proceeding, including one pursuant to" § 2255 "except for claims of prosecutorial misconduct or ineffective assistance of counsel." The Plea Agreement, Simpsons' plea colloquy, and the transcript of hissentencing hearing clearly demonstrate that Simpson knowingly and voluntarily waived his right to file this motion. Because Simpson also has not contested that these waivers were given both "knowingly and voluntarily," the waiver is enforceable. United States v. Rutan,956 F.2d 827, 829 (8th Cir. 1992)("If a waiver of appeal is made knowingly and voluntarily, it is enforceable."). Finally, this claim fails because Simpson cannot now contradict his prior admissions of guilt made under oath. However, even if Simpson's challenges to the voluntariness of his plea were able to be construed as an ineffective assistance of counsel claim, which would be allowed as an exception to the appeal waiver, they still must fail for the following reasons.
Simpson claims that his plea was not intelligently entered because I did not inform Simpson of "the benefits of pleading and the risks of trial," and that Simpson's counsel "claimed that the prison defendant would get sent to would be decided by whether or not a plea was reached." See Petition at 17. Next, Simpson claims that counsel informed him that he "could take time off his sentence by enrolling in sex offender treatment and religious programs . . . and the drug treatment programs." Id.
United States v. Frook, 616 F.3d 773, 775 (8th Cir. 2010)(quoting Kercheval v. United States 274 U.S. 220 (1927)). "The voluntariness of a guilty plea presents a mixed question of law and fact subject to independent review by this...
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