LEV AR SIMMS, 

v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Petitioner, 

) 

) 

) 

) 

) Criminal Case No. 06-268 (RJL) 

) 

UNITED STATES OF AMERICA, ) 

) 

) 

FILED 

Respondent. 

~INION (August ,2010) [#51] 

AUG 0 9 2010 

Clerk, u.s. District & Bankruptcy 

Courts for the District of Columbia 

Pro se petitioner LeVar Simms ("petitioner" or "Simms") seeks an order vacating 

his conviction and sentence pursuant 28 U.S.C. § 2255 for the myriad of reasons set forth 

below. Review of the pleadings, relevant law, and the entire record herein demonstrates 

that petitioner's claims are clearly meritless, and therefore, his motion is DENIED.} 

BACKGROUND 

Simms was arrested on August 14, 2006, and charged in a three-count indictment 

on September 12, 2006.2 After a jury trial before this Court, Simms was convicted of the 

} To say the least, a hearing in this case is not necessary. Indeed, it is well established 

that a district court is not required to hold an evidentiary hearing on a Section 2255 

motion if, as here, "the motion and the files and records of the case conclusively show 

that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see United States v. 

Pollard, 959 F.2d 1011,1031 (D.C. Cir. 1992) ("Only where the [Section] 2255 motion 

raises 'detailed and specific' factual allegations whose resolution requires information 

outside of the record or the judge's 'personal knowledge or recollection' must a hearing 

be held.") (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962». 

2 The indictment charged petitioner with: one count of interstate transportation of a minor 

for purposes of prostitution, in violation of 18 U.S.C. § 2423(a); interstate sex trafficking 

1 
first count, interstate transportation of a minor for purposes of prostitution, on January 28, 

2008. The jury found the petitioner not guilty of the second count, interstate sex 

trafficking of children, and the government had dismissed the third count on oral motion 

before trial. On July 7, 2008, this Court sentenced Simms to ninety-six months 

imprisonment. Three days later, Simms filed his notice of appeal. Shortly thereafter, on 

July 16, 2008, Simms filed the instant motion. Because his appeal was still pending, the 

Court denied his motion as premature on October 29,2009. On direct appeal, Simms 

argued that the trial court had erred when it: (1) sent count one to the jury, because there 

was insufficient evidence to support the charge; and (2) used compound questions during 

jury voir dire. On February 17,2010, our Court of Appeals affirmed his conviction. 

Undeterred, Simms sought leave to refile his Section 2255 motion. I granted that motion 

on February 22, 2010. 

Simms now challenges his sentence on the grounds, inter alia, that the Court and 

trial counsel "conspired" to have Simms convicted, and the Court failed to consider the 

merit of Simms's motions. Simms also claims prosecutorial misconduct by the 

government for relying on allegedly perjured testimony; attempting to appeal to the jury's 

personal feelings; violating Brady v. Maryland, 373 U.S. 83 (1963); prosecuting Simms 

without evidence; and pursuing a vindictive prosecution with prejudicial evidence. In his 

Section 2255 motion, Simms also claims, for the first time, ineffective assistance of 

counsel. Unfortunately for the petitioner, none of these arguments have any merit. 

of children, in violation of 18 U.S.C. § 1591; and interstate sex trafficking by force, 

fraud, and coercion, in violation of 18 U.S.C. § 1591. 

2 
DISCUSSION 

A prisoner in federal custody may challenge the validity of his sentence by 

moving that the sentencing court "vacate, set aside, or correct the sentence." 28 U.S.C. 

§ 2255(a); see also Daniels v. United States, 532 U.S. 374, 377 (2001). The sentencing 

court may modify the sentence if it finds the sentence was "imposed in violation of the 

Constitution or laws of the United States, [] that the court was without jurisdiction to 

impose such sentence, [] 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); see also Davis v. 

United States, 417 U.S. 333,342-44 (1974). A prisoner bringing a motion pursuant to 

Section 2255 bears a heavy burden, however: to grant a prisoner relief from his sentence, 

the court must find "that the challenged sentence resulted from a fundamental defect 

which inherently results in a complete miscarriage of justice, or an omission inconsistent 

with the rudimentary demands of fair procedure." Pollard, 959 F.2d at 1020 (internal 

quotations omitted). 

Furthermore, "[i]t is settled that a § 2255 motion is not meant to be a substitute for 

a direct appeal and that 'it does not encompass all claimed errors in conviction and 

sentencing. '" ld. at 1 028 (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). 

Thus, the claims on which a prisoner moving under Section 2255 may base his collateral 

attack are limited by the procedural default rule and the bar against relitigation. "The 

procedural default rule generally precludes consideration of an argument made on 

collateral review that was not made on direct appeal, unless the defendant shows cause 

and prejudice." United States v. Hughes, 514 F.3d 15,17 (D.C. Cir. 2008) (citing 

3 
Massaro v. United States, 538 U.S. 500, 504 (2003)). At the same time, "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) (quoting Garris v. Lindsay, 794 F.2d 722, 726 

(D.C. Cir. 1986)). Both the procedural default rule and the bar against relitigation 

conserve judicial resources and promote society's interest in the finality of judgments. 

Massaro, 538 U.S. at 504; Greene, 834 F.2d at 1070. 

Not surprisingly, Simms's myriad of claims must be dismissed either because they 

were litigated and adjudicated on direct appeal, or because they were not raised in that 

appeal and Simms's has not asserted cause or prejudice. Indeed, the only claim that 

Simms can now assert is his ineffective assistance of counsel claim. Massaro, 538 U.S. 

at 504. That claim, however, is to no avail. How so? 

An ineffective assistance of counsel claim, according to the Supreme Court in 

Strickland v. Washington, requires two showings: (1) that counsel's performance was 

deficient, and (2) that there is a reasonable probability that but for counsel's 

unprofessional errors, the result of the proceeding would have been different. 466 U.S. 

668, 694 (1984). The Strickland prongs need not be evaluated in a particular order. 

Indeed, if the defendant fails to make a sufficient showing on one prong, the other need 

not even be addressed. United States v. Goodwin, 594 F.3d 1,4 (D.C. Cir. 2010) 

(quoting Strickland, 466 U.S. at 697). Simply stated, a reviewing court must assess 

"counsel's overall performance, before and at trial." Kimmelman v. Morrison, 477 U.S. 

365,386 (1986). In addition, "a court must indulge a strong presumption that counsel's 

4 
conduct falls within the wide range of reasonable professional assistance." Strickland, 

466 U.S. at 689. As such, "a motion charging ineffective assistance of counsel must set 

forth evidence upon which the elements of a constitutionally deficient performance might 

properly be found." United States v. Pinkney, 543 F.2d 908,916 (D.C. Cir. 1976) 

(footnote omitted). This the petitioner has utterly failed to do. 

Simms claims that his attorney, Thomas Abbenante, was ineffective for five 

reasons. First, Simms claims that although Mr. Abbenante filed one suppression motion 

on his behalf, that he should have filed additional motions. Second, Simms claims that 

Mr. Abbenante's failure to call additional, unnamed fact witnesses would have rebutted 

the prosecution's case. Third, Simms claims that Mr. Abbenante failed to impeach the 

government's witnesses, and provides a list of questions he believes Mr. Abbenante 

should have asked. This, Simms claims, would have "turned the case around" and 

"could've changed the decision of a guilty verdict from the jury." Pet. Mot. 10. Fourth, 

Simms claims that his counsel requested to view documents on the witness's medical 

history, but that Mr. Abbenante did not show those documents to petitioner. Finally, 

Simms claims that after the trial, Mr. Abbenante led Simms and his family to believe that 

an appeal after sentencing was his only option. None of these vague and conclusory 

claims have any merit. See, e.g., id. at 917. 

Indeed, Simms has not only failed to demonstrate any deficiency in Mr. 

Abbenante's performance, he has also failed to demonstrate any prejudice to his case. 

Stated simply, Simms has not "overcome the presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy," as he must to show 

5 
ineffective assistance of counsel. Strickland, 466 U.S. at 689 (quotation omitted). As the 

Supreme Court noted in Strickland, there are "countless ways to provide effective 

assistance," and the Court should not "second-guess counsel's assistance" after the fact. 

Id. This Court's scrutiny of counsel's performance "must be highly deferential," id., and 

nothing in Simm's pleadings or in the record demonstrates that Mr. Abbenante's 

performance was either deficient or prejudicial. To the contrary, in the hands of less 

gifted counsel, Simms may well have sustained a worse result. Thus, Simms's claim of 

ineffective assistance of counsel is also denied. 

CONCLUSION 

Accordingly, for all of these reasons, Simms's Section 2255 motion is DENIED. 

An appropriate order will accompany this Memorandum Opinion. 

United States District Judge 

6