Searching over 5,500,000 cases.

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.

Simonds v. United States

United States District Court, E.D. Tennessee, Chattanooga

September 12, 2017

MARK A. SIMONDS, Petitioner,



         Before the Court is a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (“2255 Motion”) [Doc. 39] filed by federal prisoner, Mark A. Simonds (“Petitioner”).[1] Respondent United States of America (the “Government”) filed a response in opposition to the 2255 Motion [Doc. 42] and this matter is now ripe. For the reasons stated below, Petitioner's 2255 Motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In May 2012, a federal grand jury charged Petitioner with 13 counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) [Doc. 1]. About a week after his initial appearance and arraignment, Petitioner's attorney made an oral motion on behalf of Petitioner for a psychiatric/psychological evaluation of Petitioner pursuant to 18 U.S.C. §§ 4241, 4242 and 4247, and the motion was granted by the Court [Doc. 12]. A forensic evaluation concluding Petitioner was competent was received by the Court on October 2, 2012 from the Federal Bureau of Prisons, Federal Medical Center (“FMC”) in Lexington, Kentucky [Doc. 19 (sealed)]. On November 5, 2012, Petitioner, through his attorney, filed a waiver of mental competency hearing pursuant to 18 U.S.C. § 4247(d) [Doc. 20]. The Court determined that Petitioner was not currently suffering from a mental disease or defect which rendered him mentally incompetent to the extent he was unable to understand the nature and consequences of the proceedings against him or to properly assist in his defense, was able to participate in all courtroom activities, and was competent to stand trial [Doc. 21].

         Thereafter, pursuant to a written plea agreement, Petitioner pleaded guilty to one count of receipt of child pornography on January 14, 2013, with a bargain that the 12 remaining counts would be dismissed at sentencing [Docs. 27 & 29]. In his plea agreement Petitioner waived most of his rights to appeal and waived his rights to “file any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack [his] conviction(s) and/or resulting sentence” except for claims of “ineffective assistance of counsel or prosecutorial misconduct not known to [him] by the time of the entry of judgment.” [Doc. 29, at Page ID # 60, ¶ 11].

         In his plea agreement and during his plea colloquy, Petitioner acknowledged his ability to understand the act of pleading guilty, the rights he would give up by pleading guilty, the waiver provisions of his plea agreement, the elements of the offense, and the potential penalty he faced [Docs. 29 & 41]. After a scrupulously proper plea colloquy was conducted, the Court found Petitioner was fully capable and competent to enter an informed plea; the plea was made knowingly and with full understanding of each of the rights waived by Petitioner; the plea was made voluntarily and free from any force, threats, or promises, apart from the promises in the plea agreement; Petitioner understood the nature of the charge and penalties provided by law; and the plea had a sufficient basis in fact [Docs. 31, 32 & 41].

         On April 29, 2013, the Court conducted a sentencing hearing [Doc. 36]. The Court sentenced Petitioner to a within-guidelines sentence of 105 months' imprisonment in a Judgment filed on April 30, 2013 [Doc. 37].

         Petitioner did not appeal, so his conviction became final at the expiration of the time for seeking such review, May 14, 2013. In April 2014, within the applicable one-year time limitation for filing a motion under 28 U.S.C. 2255, Petitioner filed a motion to compel his attorney to send him a copy of his case file stating that he requested the file on January 14 and March 1, 2014 [Doc. 38]. Petitioner's motion, which was dated March 29, 2014, further stated that Petitioner “intends to file a motion to vacate, set aside, or correct sentence under 28 U.S.C. §2255. For such motion to be timely, [Petitioner] must file within one year of his criminal conviction becoming final, or before April 29, 2014.” [Doc. 38].

         After acknowledging the deadline for filing a 2255 Motion, Petitioner did not sign his 2255 Motion until June 26, 2014. The envelope appears to be stamped on July 10, 2014, and it was filed by the Court on July 14, 2014 [Doc. 39 at Page ID # 99].

         II. STANDARDS

         A prisoner in federal custody may file a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 “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.” 28 U.S.C. § 2255(a). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a statute of limitations applicable to collateral challenges under § 2255.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts requires a district court to summarily dismiss a § 2255 motion if “it plainly appears from the face of the motion, the attached exhibits, and the record of the prior proceedings that the movant is not entitled to relief.” See also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (“A motion to vacate sentence under § 2255 can be denied for the reason that it states ‘only bald legal conclusions with no supporting factual allegations.'” (quoting Sanders v. United States, 373 U.S. 1, 19 (1963))). If the motion is not summarily dismissed under Rule 4(b), Rule 8 requires the court to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required.

         III. ANALYSIS

         In his 2255 Motion, which was submitted without a supporting memorandum, Petitioner alleges ineffective assistance of counsel because counsel failed to properly investigate Petitioner's case and failed to mention that Petitioner was on “mind altering drugs” at the time of his plea. In its response to the 2255 Motion, the Government argues Petitioner's claims are time-barred, insufficiently vague, procedurally defaulted, and meritless [Doc. 42]. Petitioner did not submit a reply.

         A. Petitioner's 2255 Motion is Untimely

         Under the AEDPA, a one-year statute of limitations applies to the filing of a § 2255 motion. 28 U.S.C. § 2255(f). This same provision governs the timeliness of later-filed amendments. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *2-6 (E.D. Tenn. April 5, ...

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.