United States v. Simmons, Criminal No. 04–128–15 (RMC).

• Decision Date: 28 June 2013
• Docket Number: Criminal No. 04–128–15 (RMC).
• Citation: 951 F.Supp.2d 137
• Parties: UNITED STATES of America v. William H. SIMMONS, Defendant.
• Court: U.S. District Court — District of Columbia

951 F.Supp.2d 137

UNITED STATES of America

v.William H. SIMMONS, Defendant.

Criminal No. 04–128–15 (RMC).

United States District Court, District of Columbia.

June 28, 2013.

Darlene Michele Soltys, Sherri Lee Berthrong, U.S. Attorney's Office, John Philip Dominguez, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

A. Eduardo Balarezo, Balarezo Law, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, District Judge.

William H. “Mike” Simmons has filed a pro se§ 2255motion to vacate, set aside, or correct his criminal convictions and sentence.The United States opposes the motion.The Court has reviewed the motion carefully and concludes it should be denied.Mr. Simmons's claims are either barred or without merit.The motion will be denied.

I.FACTS

William H. “Mike” Simmons was a defendant in a large, multi-defendantprosecution that spanned years.A joint investigation of the M Street Crew by the Safe Streets Task Force, a joint effort in Washington, D.C., by the Metropolitan Police Department and the Federal Bureau of Investigation, began in 2002 and ended on March 16, 2004, when 39 persons were arrested in the District of Columbia, Maryland, Virginia, New York, and California.In a 159–count superseding indictment filed on October 19, 2005, a grand jury charged Mr. Simmons and co-defendants with narcotics conspiracy, in violation of 21 U.S.C. § 846; racketeering conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act(“RICO”), 18 U.S.C. §§ 1961–68; narcotics trafficking; murder and other violent crimes; and various weapons crimes.

The defendants were divided into three groups for trial.The first group, consisting of Mr. Simmons, Jonathan Franklin, George Wilson, William Robinson and Joseph Blackson, was tried by jury before this Court between March 6 and May 22, 2006.¹On May 25, 2006, the jury convicted Mr. Simmons of narcotics conspiracy (Count 1), RICO conspiracy (Count 2), and distribution of phencyclidine (PCP) within 1000 feet of a school (Counts 8, 10, and 30).The jury acquitted Messrs. Simmons and Franklin of murder, assault, and weapons charges related to the March 28, 2003 shooting of Kevin Lurk and Shelby Anderson and found that the RICO conspiracy did not involve murder.

The evidence at trial showed that Mr. Franklin was the head of the M Street Crew, a “large-scale drug ring” that operated “an open air drug market” throughout a four-block area centered on the intersection of 18th and M Streets in Northeast Washington, D.C.SeeUnited States v. Wilson,605 F.3d 985, 997(D.C.Cir.2010)(transcript citations and quotation marks omitted).Mr. Franklin operated with a “consistent routine:” he obtained bulk quantities of PCP and ecstasy pills from suppliers and repackaged the drugs for members of the Crew to sell.Id. at 998.Although Mr. Franklin ordinarily functioned as the Crew's leader, he was assisted in that role by his three “lieutenants,” Messrs. Robinson, Wilson, and Blackson, who supplied narcotics to the Crew and resolved disputes involving money or drugs when he was absent.Id.Mr. Wilson, for example, “played an enforcement role, ... defend[ing][the Crew's] preeminence in the 18th and M area from outsiders, sometimes by force.”Id. at 999.

“Beneath Franklin's three lieutenants was a class of ‘foot soldiers' who made individual sales in the 18th and M area.”Id.Mr. Simmons was “Franklin's ‘loyalest foot soldier,’ ” described by witnesses at trial as “Franklin's ‘[s]idekick,’‘runner,’‘helper,’‘little man,’ and ‘flunky.’ ”Id.(quotingApril 19, 2006PM Trial Tr.at 44, April 27, 2006AM Trial Tr.at 88).Another witness testified that “[Mr.] Simmons would do ‘[w]hatever [Franklin] told him.Sell bottles to people.If [Franklin] ... needed anything done, he'd do it.’ ”Id.(quotingMay 2, 2006AM Trial Tr.at 43).One of Mr. Simmons's “most frequent tasks” was ferrying narcotics to Mr. Franklin or from Mr. Franklin to buyers.Id.

On August 24, 2006, this Court sentenced Mr. Simmons to an aggregate term of 264 months (22 years), followed by a 60–month term (5 years) of supervised release.Mr. Simmons filed a timely appeal.After full arguments attacking the trial, verdict, and sentence, the Court of Appeals affirmed Mr. Simmons's convictions and sentence on May 25, 2010.SeeUnited States v. Wilson,605 F.3d 985(D.C.Cir.2010).

Mr. Simmons filed the instant motion on May 6, 2011.It is now fully briefed.

II.LEGAL STANDARD

A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or 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(a).Because “Section 2255 is not a substitute for a direct appeal,”“in order to gain relief under any claim, [the movant] is obliged to show a good deal more than would be sufficient on a direct appeal from his sentence.”United States v. Pollard,959 F.2d 1011, 1020(D.C.Cir.1992)(citingUnited States v. Frady,456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816(1982)).

A hearing need not be held on a § 2255 motion when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”Id.§ 2255(b);accordUnited States v. Morrison,98 F.3d 619, 625(D.C.Cir.1996).When the judge ruling on the § 2255 motion is the same judge who presided over the trial, as is the case here, the decision as to whether an evidentiary hearing is necessary is within the discretion of the Court.SeeMorrison,98 F.3d at 625.“When a § 2255 motion involves ineffective assistance of counsel, a hearing is not required if the district court determines that the ‘alleged deficiencies of counsel did not prejudice the defendant.’ ”United States v. Weaver,234 F.3d 42, 46(D.C.Cir.2000)(quotingUnited States v. Sayan,968 F.2d 55, 66(D.C.Cir.1992)).

III.ANALYSIS

Mr. Simmons advances multiple claims to attack his convictions and sentence: (1) alleged government misconduct; (2) bias on the part of the Court and Court error; (3) illegally obtained evidence; (4) an illegal arrest; (5) an illegal indictment; (6) other due process and constitutional violations; and (7) ineffective assistance of trial counsel.He insists, “I am actually innocent of the crimes and the sentence.”SeeSection 2255 Motion (“Def. Mot.”)[Dkt. 1142]at 3–4;Section 2255 Reply (“Reply”)[Dkt. 1170]at 1.The Court will first address those claims that are procedurally barred, then the alleged ineffective assistance of trial counsel, and finally the remaining claims.

A.Claims That Are Barred

Mr. Simmons has already appealed his convictions and sentence, and none of his arguments was found to have merit.SeeWilson,605 F.3d at 1039(affirming Mr. Simmon's convictions and sentence in toto).In part, the instant § 2255 motion argues matters that were raised and rejected on direct appeal to the D.C. Circuit.“It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the law.”United States v. Greene,834 F.2d 1067, 1070(D.C.Cir.1987)(quotingGarris v. Lindsay,794 F.2d 722, 726–27(D.C.Cir.1986));see alsoHardy v. United States,381 F.2d 941, 943(D.C.Cir.1967)(“It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255.”).There has been no applicable change in the law.Thus, those arguments which were litigated unsuccessfully by Mr. Simmons before the D.C. Circuit are barred from further contention here.

This principle applies directly to Mr. Simmons's claims concerning MPD Officer Donna Leftridge.Officer Leftridge acted in an undercover capacity during the investigation of the M Street Crew.Her interactions with Messrs. Franklin, Simmons, Robinson, and Blackson, among others, were captured on video and audio.The Defendants' activities were fairly portrayed by video scenes and their voices.At the relevant time, Officer Leftridge was under investigation for an unrelated matter, of which the Court required notice to defense counsel without full details.SeeWilson,605 F.3d at 1003–08.Defendants also alleged that she and Jonathan Franklin began a personal relationship—off-camera and away from her undercover work—and that she borrowed money from Mr. Franklin.Both before the trial court and on appeal, Defendants contended that the government committed a Brady² violation by failing to disclose the full scope of the unrelated investigation concerning Officer Leftridge and that the Court erred by not allowing cross-examination of Officer Leftridge about her alleged social contacts with Mr. Franklin.These matters were fully argued on appeal and rejected.Wilson,605 F.3d at 1008, 1010–11.

The D.C. Circuit noted that Mr. Simmons and all of his co-defendants argued that their Sixth Amendment rights to confrontation³ were violated at trial:

(A) when the district court limited cross-examination of undercover police officer Donna Leftridge by failing to order the government to disclose during trial information it had failed to turn over as required by Brady v. Maryland, regarding an ongoing investigation of Officer Leftridge; and (B) when the district court prohibited all questioning regarding Officer Leftridge's alleged inappropriate social relationship with appellantJohn Franklin.

Wilson,605 F.3d at 1003(citation omitted).The appellate court found no Brady violation when the trial court did not require disclosure of the subject-matter of the unrelated investigation of Officer Leftridge ...