### LEV AR SIMMS,



### v. UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Petitioner, ) ) ) ) 

### ) Criminal Case No. 06-268 (RJL) ) 

### UNITED STATES OF AMERICA, ) ) ) 

# FILED Respondent.

# ~INION (August ,2010) [#51] 

## AUG 092010 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 sentencepursuant 28 U.S.C. § 2255 for the myriad ofreasons set forth below. Review ofthe pleadings, relevant law, and the entire record herein demonstrates thatpetitioner'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 ajurytrial before this Court, Simms was convicted ofthe }To say the least, a hearing in this case is not necessary. Indeed, it is well established that a district court is notrequired to hold an evidentiary hearing on a Section 2255 motion if, as here, "the motion and the files and records ofthe case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see UnitedStates 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 oftherecord or thejudge's 'personal knowledge orrecollection' must a hearing be held.") (quoting Machibroda v. UnitedStates, 368 U.S. 487, 495 (1962». 2 

### The indictment chargedpetitioner with: one count ofinterstate transportation ofa minor for purposes ofprostitution, in violation of 18 U.S.C. § 2423(a); interstate sex trafficking 1first count, interstate transportation ofa minor for purposes ofprostitution, on January 28, 2008. Thejuryfound the petitionernot guilty ofthe second count, interstate sex trafficking ofchildren, 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 ofappeal. Shortly thereafter, on July 16, 2008, Simms filed the instant motion. Becausehis appeal was still pending, the Court deniedhis motion as premature on October 29,2009. On direct appeal, Simms argued that the trial courthad erred when it: (1) sent count one to thejury, because there
was insufficient evidence to supportthe charge; and (2) used compound questions during juryvoir dire. OnFebruary 17,2010, our Court ofAppeals affirmedhis conviction. Undeterred, Simms sought leave to refile his Section 2255 motion. I granted that motion
onFebruary 22, 2010. Simms now challenges his sentence onthe grounds, inter alia, that the Court and trial counsel "conspired"to have Simms convicted, and the Court failed to considerthe merit ofSimms's motions. Simms also claims prosecutorial misconduct by the government for relying on allegedly perjuredtestimony; attempting to appeal to thejury's personal feelings; violating

### Brady v. 

### Maryland, 373 U.S. 83 (1963); prosecuting Simms without evidence; and pursuing a vindictive prosecution withprejudicial evidence. In his Section 2255 motion, Simms also claims, for the first time, ineffective assistance of counsel. Unfortunately for the petitioner, none ofthese arguments have any merit.
ofchildren, 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. 2DISCUSSION A prisoner in federal custody may challenge the validity ofhis sentence by movingthatthe sentencing court "vacate, set aside, or correctthe sentence." 28 U.S.C. § 2255(a); 

### see also Daniels v. 

### UnitedStates, 532 U.S. 374, 377 (2001). The sentencing court may modify the sentence if

### itfinds the sentence was "imposed in violation ofthe Constitution or laws ofthe United States, [] thatthe court was withoutjurisdictionto impose such sentence, [] that the sentence was in excess ofthe maximum authorized by law, oris otherwise subjectto collateral attack." 28 U.S.C. § 2255(a); 

### see also Davis v. 

### UnitedStates, 417 U.S. 333,342-44 (1974). A prisoner bringing a motionpursuantto Section 2255 bears a heavy burden, however: to grant a prisonerrelieffrom his sentence, the courtmust find "thatthe challenged sentence resulted from a fundamental defect which inherently results in a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands offair procedure." 

### Pollard, 959 F.2d at 1020 (internal quotations omitted). Furthermore, "[i]t is settled that a § 2255 motion is not meantto be a substitute for
a direct appeal and that 'itdoes not encompass all claimed errors in conviction and sentencing.'" ld. at 1 028 (quoting 

### UnitedStates 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 limitedby the procedural default rule and the bar against relitigation. "The procedural defaultrule generally precludes consideration ofan argument made on collateral reviewthatwas notmade on direct appeal, unless the defendant shows cause and prejudice." 

### UnitedStates v. 

### Hughes, 514 F.3d 15,17 (D.C. Cir. 2008) (citing 3

### Massaro v. UnitedStates, 538 U.S. 500, 504 (2003)). At the same time, "afederal prisoner cannotraise collaterally any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the law." 

### UnitedStates v. Greene, 834 F.2d 1067, 1070 (D.C. Cir. 1987) (quoting 

### Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986)). Boththeprocedural default rule and the bar against relitigation
conservejudicial 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 ofclaims mustbe dismissed either becausethey
were litigated and adjudicated on direct appeal, orbecause they were not raised in that appeal and Simms'shas not asserted cause orprejudice. Indeed, the only claim that Simms can now assert is his ineffective assistance ofcounsel claim. 

### Massaro, 538 U.S. at 504. That claim, however, is to no avail. How so? An ineffective assistance ofcounsel claim, according to the Supreme Court in 

### Stricklandv. Washington, requires two showings: (1) that counsel'sperformance was deficient, and (2) that there is a reasonable probability thatbut for counsel's unprofessional errors, the result ofthe proceeding would have been different. 466 U.S. 668, 694 (1984). The 

### Stricklandprongs need not be evaluated in a particular order. Indeed, ifthe defendant fails to make a sufficient showing on one prong, the otherneed not even be addressed. 

### UnitedStates v. Goodwin, 594 F.3d 1,4 (D.C. Cir. 2010) (quoting 

### Strickland, 466 U.S. at 697). Simply stated, a reviewing courtmust assess "counsel's overall performance, before and at trial." 

### Kimmelman v. Morrison, 477 U.S. 365,386 (1986). In addition, "acourt must indulge a strongpresumption that counsel's 4conduct falls within the wide range ofreasonable professional assistance." 

### Strickland, 466 U.S. at 689. As such, "amotion charging ineffective assistance ofcounsel must set forth evidence upon which the elements ofa constitutionally deficientperformance might properly be found." 

### UnitedStates v. 

### Pinkney, 543 F.2d 908,916 (D.C. Cir. 1976) (footnote omitted). This the petitionerhas 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
onhis 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 ofquestions he believes Mr. Abbenante should have asked. This, Simms claims, would have "turned the case around" and "could've changedthe decision ofa guilty verdict from thejury." Pet. Mot. 10. Fourth, Simms claims that his counsel requested to view documents on the witness's medical history, butthat 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 ofthese 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 "overcomethe presumption that, under the circumstances, the challenged action mightbe considered sound trial strategy," as he must to show 5ineffective assistance ofcounsel. Strickland, 466 U.S. at 689 (quotation omitted). As the Supreme Courtnoted 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 ofcounsel'sperformance "mustbe highly deferential," id., and nothing in Simm's pleadings orin the record demonstrates that Mr. Abbenante's performance was either deficient orprejudicial. To the contrary, in the hands ofless gifted counsel, Simms may well have sustained a worse result. Thus, Simms's claim of ineffective assistance ofcounsel is also denied. CONCLUSION Accordingly, for all ofthese reasons, Simms's Section 2255 motion is DENIED. An appropriate order will accompany this Memorandum Opinion.

United States District Judge

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