United States District Court, N.D. Mississippi, Greenville Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.
matter comes before the court on the motion of Tommy Simmons
to vacate, set aside, or correct his sentence under 28 U.S.C.
§2255. The government has responded to the motion, and
the matter is ripe for resolution.
and Procedural Posture
February 27, 2008, law enforcement officers received
information that drugs were being sold out of Room 159 of the
Best Western hotel in Greenville, Mississippi. ECF doc. 85,
pg. 14. The hotel room was placed under surveillance and
officers witnessed Petitioner Simmons arrive at the room in a
rental car. Id. Shortly thereafter, Simmons sped out
of the Best Western parking lot. Id. Law enforcement
initiated a traffic stop, but Simmons fled. Id.
Simmons led police on a high speed chase through Greenville,
during which he violated multiple traffic laws and
intentionally rammed a Greenville Police Department vehicle.
Id. at 15. Simmons eventually parked the car and
attempted to flee on foot. Id. While running from
officers, Simmons dropped a Smith and Wesson 9 mm pistol.
Id. A search of Simmons' rental car revealed
approximately 1 kilogram of cocaine, 4 bags of marijuana, and
2 marijuana cigarettes. Id. The substance recovered
was positively identified as marijuana by the crime lab.
Id. Further, the ATF verified that Simmons'
pistol had entered Mississippi through interstate commerce.
27, 2008, Petitioner Simmons was indicted for possession of
marijuana with intent to distribute (Count I), possession of
a firearm during a drug trafficking crime (Count II), and
possession of a firearm by a convicted felon (Count III). ECF
doc. 1. On May 15, 2009, Simmons pleaded guilty to Counts I
and III of the indictment. ECF doc. 71. At his change of plea
hearing, Simmons admitted that he had committed the crimes to
which was pleading guilty. ECF dc. 85 at 16.
Simmons' sentencing hearing, the pre-sentence report was
adopted without objection. ECF doc. 78, pg. 3 and 9. Simmons
accepted full responsibility for his crimes. Id. at
3. The Court sentenced Simmons to a total term of 120 months,
consisting of 60 months on Count I and 120 months on Count
III, to run concurrently. ECF doc. 77. The Court recognized
that this sentence was above the advisory guideline range,
although the sentences were within the statutory maximums.
ECF doc. 78, pg. 9. The Court stated the reasons for the
departure from the guidelines, noting Simmons had a prior
criminal history including a conviction for murder at the age
of 14 and, “[a]s an adult, you have convictions for
DUI; non-return of rental property, which started out as
robbery; possession of narcotics, controlled substances;
possession of PCP for sale; false identification to a police
officer; sale of articles with the identification removed;
disturbing the peace; possession of narcotics; possession of
a firearm by a felon in 1995, ” in addition to pending
charges and numerous arrests. Id. at 10. As such,
the Court found that the sentence imposed was warranted
pursuant to 18 U.S.C.A. §3553. Id. Simmons
appealed to the Fifth Circuit, which affirmed Simmons'
conviction and sentence. ECF doc. 86.
November 3, 2014, Simmons filed a motion for a sentence
reduction pursuant to 18 U.S.C.A. §3582(c)(2). ECF doc.
91. The Court denied Simmons' motion noting that Simmons
had been sentenced to the applicable statutory maximums based
the nature and circumstances of the offense and the history
and characteristics of the defendant; the need for the
sentence imposed to reflect the seriousness of the offense,
to promote respect for the law, and to provide just
punishment for the offense; to afford adequate deterrence to
criminal conduct; and to protect the public from further
crimes of the defendant.
ECF doc. 94. The Court further stated that Simmons'
continued participation in illegal activities warranted the
imposition of the maximum sentences and no reduction was
warranted in this case. Id. On July 20, 2015,
Simmons filed a motion to vacate, set aside, or correct his
sentence. ECF doc. 95.
to the Bureau of Prisons website, Simmons was released from
federal custody on November 10, 2016. However, Simmons
remains on post-release supervision, with the jurisdiction
for his probation transferred to the District of Nevada. ECF
doc. 102. As such, Simmons' remains subject to the
collateral consequences of his conviction and sentence and
his current claim remains ripe for review. See Lane v.
Williams, 455 U.S. 624 (1982)(a §2254 case holding
that a habeas petition will be moot when the sentence and any
term of probation has fully expired.)
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is “otherwise subject to collateral
attack.” 28 U.S.C. § 2255; see United States
v. Cates, 952 F.2d 149, 151 (5thCir.1992).
The scope of relief under ' 2255 is the same as that of a
petition for a writ of habeas corpus.
Cates, 952 F.2d at 151.
defendant seeking relief under 28 U.S.C. §2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert. denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing “cause, ” an “objective factor
external to the defense, ” rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant may not raise the issue in a later
collateral attack. Moore v. United States, 598 F.2d
439, 441 (5th Cir. 1979).