UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LEVAR SIMMS, ) ) Petitioner, ) ) v. ) Criminal Case No. 06-268 (RJL) ) UNITED STATES OF AMERICA, ) ) FILED Respondent. ) AUG 0 9 2010

(August ~INION ,2010) [#51] 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

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."

(b); see United States v. Pollard,

(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,

(1962». 2 The indictment charged petitioner with: one count of interstate transportation of a minor for purposes of prostitution, in violation of

(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,

(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

; and interstate sex trafficking by force, fraud, and coercion, in violation of

.

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."

(a); see also Daniels v. United States,

(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."

(a); see also Davis v.

United States,

(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,

(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 1028 (quoting United States v. Addonizio,

(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,

(D.C. Cir. 2008) (citing

3 Massaro v. United States,

(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,

(D.C. Cir. 1987) (quoting Garris v. Lindsay,

(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,

; Greene,

.

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,

. 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.

(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,

(D.C. Cir. 2010)

(quoting Strickland,

). Simply stated, a reviewing court must assess

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

(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,

. 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,

(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.,

.

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,

(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.

This Court's scrutiny of counsel's performance "must be highly deferential,"

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

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