United States v. Simmons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 04-128-15 (RMC)
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WILLIAM H. SIMMONS, )
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Defendant. )
_________________________________ )
OPINION
William H. “Mike” Simmons has filed a pro se § 2255 motion 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-defendant
prosecution 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.
1
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. 1 On 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. See United
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.
1
Mr. Simmons was represented by A. Eduardo Balarezo and William Purpura. Counsel filed
several pre-trial motions, which were denied except for those seeking to join co-defendants’
motions. See, e.g., Motion for Severance of Offenses [Dkt. 288]; Motion for a Preliminary
Determination of Conspiracy [Dkt. 370]; Motion to Disclose Identities of Each Confidential
Information [Dkt. 372]; Motion for Discovery of Co-Defendant and Co-Conspirator Statements
[Dkt. 373]; Motion for Leave to Join Defendant Davis’s Motion to Suppress Tangible Evidence
[Dkt. 376]; Motion to Join Co-Defendant Franklin and Blackson’s Motion to Suppress Wiretap
Evidence [Dkt. 383]. They also made oral motions at trial for severance from Jonathan Franklin
or mistrial on March 15, 2006, and an oral motion for mistrial on March 23, 2006. These, too,
were denied.
2
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. (quoting April 19, 2006 PM Trial Tr. at 44, April 27, 2006 AM 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. (quoting May 2,
2006 AM 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. See
United 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
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appeal from his sentence.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992)
(citing United States v. Frady, 456 U.S. 152, 165 (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); accord United 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. See Morrison, 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) (quoting United 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.” See Section 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. See Wilson, 605 F.3d at 1039 (affirming Mr. Simmon’s
convictions and sentence in toto). In part, the instant § 2255 motion argues matters that were
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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) (quoting Garris v. Lindsay, 794 F.2d 722, 726–27
(D.C. Cir. 1986)); see also Hardy 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. See Wilson, 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 Brady 2 violation by failing to
2
Brady v. Maryland, 373 U.S. 83 (1963), requires federal prosecutors to disclose to a criminal
defendant all information that is or might be favorable and material either to guilt or punishment.
Impeachment evidence must also be disclosed. There are three elements to a Brady claim, which
implicates Due Process rights under the Fifth Amendment: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the [government], either willfully or inadvertently; and
prejudice must have ensued.” See Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
5
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 confrontation 3 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 appellant John 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 “because the undisclosed information would not have been admissible at trial.”
Id. at 1005; see also id. at 1006 (noting that “it is difficult to understand how the subject matter,
rather than the fact of the existence of the investigation, would have assisted in portraying
Leftridge as biased”). In fact, as the D.C. Circuit commented, Mr. Simmons’s counsel cross-
examined Officer Leftridge closely and “elicit[ed] her admission to the suspension [during the
investigation] but also her denial of knowledge of the basis for the investigation.” Id. The trial
3
The D.C. Circuit clarified that Defendants’ challenge would be more accurately described as
arising under their Fifth Amendment Due Process rights than under their Sixth Amendment
Confrontation Clause rights. See Wilson, 605 F.3d at 1004 (“In United States v. Bagley, 473
U.S. 667 (1985), the Supreme Court held that the withholding of potentially relevant
impeachment evidence does not implicate the Confrontation Clause in the sense of ‘any direct
restriction on the scope of cross-examination.’ Id. at 678. Instead, ‘the constitutional error, if
any,’ involves ‘the Government’s failure to assist the defense by disclosing information that
might have been helpful in conducting the cross-examination.’ Id. This latter duty arises under
the Due Process Clause of the Fifth Amendment. See id. at 675; see also Brady, 373 U.S. at
86.”).
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ruling—that the risk of prejudice to Officer Leftridge substantially outweighed any probative
value to defendants from knowing the basis for the unrelated investigation—was explicitly
sustained. Id. (“That risk of prejudice would have substantially outweighed the minimal
probative value of the evidence.”).
In contrast, the Circuit found error because the government disclosed only that
Officer Leftridge was suspended by Internal Affairs Division (IAD) and was under investigation,
holding that the trial court should have required more complete disclosure for impeachment
purposes. Id. at 1006–07. Nonetheless, the D.C. Circuit determined that the error was not
“material” for Brady purposes because there was not “‘a reasonable probability that the result of
the trial would have been different if the suppressed [evidence] had been disclosed to the
defense.’” Id. at 1007 (quoting Strickler, 527 U.S. at 289 (internal quotation marks omitted)).
The law of the case is, therefore, that: (1) information about the subject-matter of the
investigation concerning Officer Leftridge would have been inadmissible and was properly
barred by the trial court because its undue prejudice to the witness outweighed any probative
value; and (2) the prosecutor’s error in not turning over full information and the Court’s error in
not requiring its production were harmless in the face of the overwhelming evidence of guilt, i.e.,
there was no reasonable probability that such information would have affected the results for any
of the Defendants, including Mr. Simmons. Because all claims relating to Officer Leftridge were
fully argued and rejected on appeal, Mr. Simmons cannot rely on them here.
B. Ineffective Assistance of Counsel
As he was charged, Mr. Simmons faced the death penalty if the Attorney General
approved the prosecution as a capital case. The Court appointed Eduardo A. Balarezo as trial
counsel and William Purpura as “learned counsel.” See 18 U.S.C. § 3005 (“Whoever is indicted
for . . . [a] capital crime shall” have appointed two counsel, “of whom at least 1 shall be learned
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in the law applicable to capital cases.”). After the Attorney General decided not to pursue the
death penalty, the Court approved the continued appointment of both lawyers to represent Mr.
Simmons at trial (at lower rates). Thus, his claim for ineffective assistance here relates to two
lawyers.
The Supreme Court has articulated two separate standards for evaluating the
effectiveness of trial counsel in a criminal case. Under United States v. Cronic, 466 U.S. 648(1984), courts will presume a per se violation of the Sixth Amendment right to counsel only “‘if
counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’” Bell v.
Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466 U.S. at 659) (emphasis in original). Mr.
Simmons has made no showing in support of a claim under Cronic, which is inapplicable given
the efforts Messrs. Balarezo and Purpura made in his defense.
Courts more commonly evaluate claims of ineffective assistance of counsel under
the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), which requires (1) a
showing that counsel’s representation fell below an objective standard of reasonableness; and (2)
a showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. United States v. Hughes, 514 F.3d 15, 17
(D.C. Cir. 2008) (quoting Strickland, 466 U.S. at 687–88, 694) (quotation marks omitted). The
burden of proof rests on a defendant to show that his lawyer made errors “so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment and that counsel’s
deficient performance was prejudicial.” United States v. Geraldo, 271 F.3d 1112, 1116 (D.C.
Cir. 2001) (quoting Strickland, 466 U.S. at 687). In other words, to prevail on a claim of
ineffective assistance of counsel, a defendant must prove both incompetence and prejudice.
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “Failure to make the required showing of
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either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”
Strickland, 466 U.S. at 700.
A criminal defendant is guaranteed legal representation at trial and a defendant
facing the death penalty is guaranteed a specially-knowledgeable “learned” counsel. Since it is
so easy after the fact to blame the lawyer for the client’s conviction, a high standard applies to
demonstrate that the lawyer failed to represent his client effectively. A court’s evaluation of an
attorney’s performance should be highly deferential, i.e., there is a strong presumption that an
attorney’s conduct fell within the wide range of reasonable professional assistance. United
States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005) (quoting Strickland, 466 U.S. at 689). The
fact that a particular litigation strategy failed does not mean that it had no chance of success or
that counsel was ineffective by employing it. “It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Strickland, 466 U.S. at 689.
In his pleadings here, Mr. Simmons claims ineffective assistance of counsel
because: (1) neither counsel interviewed Ronnie Tucker or questioned him at trial, although Mr.
Tucker identified Mr. Simmons as the masked man selling drugs on videotape to Officer
Leftridge, Def. Mot. at 4; (2) neither counsel interviewed Jonathan Franklin or agreed to Mr.
Simmons’s insistence that they call him as a witness to testify to Officer Leftridge’s activities, id.
at 4; see also Reply at 8 (“[M]y lawyer then ignored my request to call mr franklin to the Stand
as a witness and testify about donna leftridge borrowing a thousand dollars from him and pay It
back a week later.” (errors in original)); (3) neither counsel objected that no witness to the
alleged sale to Officer Leftridge was presented at Mr. Simmons’s initial appearance, preliminary
9
hearings, or suppression hearing and no witness statements were produced before trial showing
that Mr. Simmons was the masked man shown on videotape selling drugs to Officer Leftridge, in
violation of his constitutional rights, Def. Mot. at 5, Reply at 2, 4 (“Defense Counsel Ineffective
at Discovery. . . . Notes and Transcripts never given to William Simmons until he was given
them to do his 2255.”); and (4) neither counsel argued to the jury, at Mr. Simmons’s specific
request, that the racketeering acts had to “span over a time period of a year and three months.”
Reply at 6. These arguments misperceive the legal standards governing trial and a claim of
ineffective assistance.
“[T]o show prejudice, a defendant basing an inadequate assistance claim on his or
her counsel’s failure to investigate must make ‘a comprehensive showing as to what the
investigation would have produced. The focus of the inquiry must be on what information would
have been obtained from such an investigation and whether such information, assuming its
admissibility in court, would have produced a different result.’” United States v. Askew, 88 F.3d
1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987)).
Mr. Simmons gives no hint at what evidence might have been obtained from Messrs. Tucker or
Franklin or Officer Leftridge that would have demonstrated that he was not the person wearing a
mask who delivered drugs to the officer, as shown on videotape. 4 As discussed above, the
alleged wrongs of Officer Leftridge are no longer open to discussion or debate. In what ways her
testimony might have been attacked through information from Mr. Tucker or Mr. Franklin is
now legally irrelevant. Thus, Mr. Simmons cannot successfully contend ineffective assistance of
counsel in relation to Officer Leftridge.
4
More to the point, that one narcotics sale was not the only count on which Mr. Simmons was
convicted, and its elimination would not eliminate the narcotics and RICO conspiracy counts that
contributed so heavily to his sentence.
10
The degree and extent of cross examination is peculiarly a matter of trial strategy
by defense counsel. See, e.g., United States v. Clayborne, 509 F.2d 473, 479 (D.C. Cir. 1974)
(“The decision whether to cross-examine a witness is peculiarly one for defense counsel and his
judgment should be entitled to great respect by the court.”); see also United States v. Luciano,
158 F.3d 655, 660 (2d Cir. 1998) (holding that “the conduct of examination and cross-
examination is entrusted to the judgment of the lawyer”). In this case, counsel for Mr. Simmons
had a specific strategy that became evident by the end of trial. Mr. Simmons’s lawyers
questioned select prosecution witnesses and never argued that Mr. Simmons did not use drugs; to
the contrary, they elicited evidence that he was an addict. The defense strategy was to portray
Mr. Simmons as a degenerate drug addict, living in a ruined car under a blue tarp near his
mother’s house, and barred from the house—in which his mother kept the refrigerator locked to
prevent his theft of food to sell for drugs. The defense theory (perhaps uncomfortable to Mr.
Simmons, but partially successful) was that he was too far gone into addiction for anyone to trust
him with drugs, so that he played the role only of Jonathan Franklin’s “flunky” and should not be
accorded responsibility for the activities of the M Street Crew. This defense strategy contributed
to Mr. Simmons’s acquittal of the murder of Kevin Lurk, the shooting of Shelby Anderson, and
the use of guns in those crimes—as well as the jury’s conclusion that the RICO conspiracy did
not involve murder. It also affected his sentence after conviction. Much as he might attack their
representation after the fact, Mr. Simmons avoided a life sentence due to his attorneys’ efforts.
For these reasons, the Court finds that Mr. Simmons’s claim of ineffective
assistance of trial counsel fails as a matter of law and fact. Because this Court presided over all
pre-trial, trial, and post-trial proceedings against Mr. Simmons and is totally familiar with his
case, it finds that his claim of ineffective assistance of counsel can be resolved on the basis of the
11
existing record without a hearing. See, e.g., Weaver, 234 F.3d at 46 (affirming summary denial
of 2255 motion where record conclusively showed that the defendant “failed to meet his burden
of showing prejudice under Strickland”).
C. Miscellaneous Claims
Other than ineffective assistance of counsel, “claims not raised on direct appeal
may not be raised on collateral review unless the petitioner shows cause and prejudice.”
Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Mathis, 503 F.3d
150, 153 (D.C. Cir. 2007). Cause means “that [the defendant] was impeded by some objective
factor external to the defense, such as governmental interference or the reasonable unavailability
of the factual basis for the claim.” McCleskey v. Zant, 499 U.S. 467, 468 (1991). If a court
concludes that a defendant suffered no prejudice, it need not consider whether cause has been
shown; conversely, if a defendant fails to show cause, the court need not reach the issue of
prejudice. United States v. Frady, 456 U.S. 152, 168 (1982).
Mr. Simmons argued long and hard about the issues surrounding Officer Leftridge
on direct appeal but did not raise any of his other current contentions of government misconduct,
court error, or violations of his constitutional rights. He presents no reasons for his previous
silence on these points that could excuse it. Mr. Simmons does not argue that he was unaware of
these matters and has been reasonably diligent. He does not identify any barrier that prevented
him from raising them earlier to his counsel or the court on appeal. Absent cause for neglecting
to raise his claims regarding alleged court error, government misconduct, and due process and
other constitutional violations, those claims are all barred. See Maples v. Thomas, 132 S. Ct.
912, 922 (2012) (surveying procedural default law in context of petitions under 28 U.S.C. § 2254and concluding that abandonment by an attorney constitutes “cause”); Bousley v. United States,
523 U.S. 614, 622 (1998).
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The Court does not overlook Mr. Simmons’s statements that he is actually
innocent. A court may, indeed, consider a motion that is procedurally barred if the defendant can
establish that a constitutional error “has probably resulted in the conviction of one who is
actually innocent.” Bousley, 523 U.S. at 623; United States v. Stewart, 246 F.3d 728, 729 (D.C.
Cir. 2001). But except for his mere statements, Mr. Simmons offers nothing to support his
alleged innocence, and he fails completely to address any fact underlying his conviction other
than the one sale to Officer Leftridge. Bousley, 523 U.S. at 623, (holding that, to sustain an
actual innocence claim, a “petitioner must demonstrate that, ‘in light of all the evidence,’ ‘it is
more likely than not that no reasonable juror would have convicted him.’” (quoting Schlup v.
Delo, 513 U.S. 298, 327–28 (1995))).
Were the Court to consider Mr. Simmons’s remaining claims on the merits, it
would still dismiss them. Mr. Simmons charges the government with misconduct because: (i) he
did not receive any notes or statements that proved he was the one wearing a mask and
delivering drugs to Officer Leftridge or identified eye witnesses to that transaction who were not
law enforcement; and (ii) the government relied on perjured testimony from FBI Special Agent
Stallings during his grand jury testimony. But Mr. Simmons offers no basis to conclude that
there were notes or statements or non-law enforcement witnesses, and he ignores the Circuit’s
detailed consideration of all of the issues surrounding Officer Leftridge. See Wilson, 605 F.3d at1003–08. His attack on Special Agent Stallings is a mere ipse dixit. The contention that the
Court was biased against him is also presented without any underlying facts. And, while most,
but not all, of his motions and objections were overruled, “judicial rulings alone almost never
constitute valid basis for a bias or partiality recusal motion.” Liteky v. United States, 501 U.S.
540, 555 (1994) (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)); see also
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Klayman v. Judicial Watch, Inc., 744 F. Supp. 2d 264, 270 (D.D.C. 2010) (“Importantly, to be
disqualifying, the alleged bias usually must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from his participation in
the case.” (internal quotation marks and citations omitted)). In fact, Mr. Simmons’s counsel
were quite persuasive at sentencing.
Ms. Simmons is a most sincere litigant, but he misperceives the law when he
argues that a search warrant can only be based on live sworn testimony. Federal Rule of
Criminal Procedure 41(d) provides that a search warrant may be granted on the basis of a sworn
affidavit, 5 and the affidavit may reflect the product of an investigation by more than only the
swearing officer. See United States v. Ventresca, 380 U.S. 102, 108 (1965). The search warrant
here was based on a 78-page affidavit which set forth probable cause, as found both by the judge
who authorized the search and by the undersigned when it was challenged later. Similarly, Mr.
Simmons’s time to challenge the facts alleged in the indictment was at trial, not after sentencing.
See United States v. Calandra, 414 U.S. 338, 345 (1974) (“[A]n indictment valid on its face is
not subject to challenge on the ground that the grand jury acted on the basis of inadequate or
incompetent evidence . . . .”). Finally, the Controlled Substances Act, 21 U.S.C. § 811 et seq.,
and RICO, 18 U.S.C. §§ 1961-68, are valid exercises of congressional power and fully provide
jurisdiction to the Court over Mr. Simmons’s prosecution. The Court’s jurisdiction over these
federal crimes, committed in the District of Columbia, is not subject to attack. 18 U.S.C. § 3231(“The district courts of the United States shall have original jurisdiction, exclusive of the courts
of the States, of all offenses against the laws of the United States.”).
5
“When a federal law enforcement officer or an attorney for the government presents an
affidavit in support of a warrant, the judge may require the affiant to appear personally and may
examine under oath the affiant and any witness the affiant produces.” Fed. R. Crim. P.
41(d)(2)(A) (emphasis added).
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IV. CONCLUSION
The arguments presented by William H. (“Mike”) Simmons in his motion under
18 U.S.C. § 2255, Dkt. 1142, are without merit, as explained above. The motion to vacate, set
aside, or correct his sentence will be denied.
DATE: June 28, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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