United States District Court, S.D. Georgia, Statesboro Division
October 28, 2014
ELIJAH NAHUM SIMMONS, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Elijah Nahum Simmons pled guilty to conspiracy to possess with intent to distribute controlled substances. (Cr. doc. 101.) In doing so, he both waived his direct appeal and collateral review rights. (Cr. doc. 154 at 8; Cr. doc. 187 (report and recommendation recommending that despite waiver, Simmons be permitted to appeal his conviction and sentence), adopted Cr. doc. 191.) Despite the double waiver, Simmons was permitted to appeal his conviction and sentence on the ground that his attorney had refused to file an appeal after Simmons directed him to do so. (Cr. doc. 154 at 15.) On appeal, counsel filed an Anders brief. The Court of Appeals agreed that it could find no appealable issues and affirmed Simmons' conviction and sentence. United States v. Simmons, 504 F.App'x 823 (11th Cir. 2013). He has now returned to this Court seeking 28 U.S.C. § 2255 relief. (Doc. 1.) His motion should be denied.
Simmons raises a single claim for relief. He states that he was erroneously sentenced as a U.S.S.C. § 4B1.1 career offender and that his sentencing and appellate attorneys were ineffective for failing to raise the error at sentencing and on appeal. (Doe. 1 at 3.) Simmons, however, waived all post-plea claims by entering into his plea agreement's double waiver. Thompson v. United States, 353 F.App'x 234, 235 (11th Cir. 2009); United States v. Orozc-Picazo, 391 F.App'x 761, 771 (11th Cir. 2010) (defendant's appeal waiver in pleading guilty to drug and gun conspiracy charges precluded appellate review of his claim that district court erred in imposing consecutive sentences; district court questioned defendant concerning appeal waiver during plea colloquy, and it did not impose sentence that was higher than that called for by advisory guidelines). His double waiver thus precludes his claim, since it does not go to the validity of his guilty-plea agreement. See Patel v. United States, 252 F.App'x 970, 974-75 (11th Cir. 2007) (IAC claim figuring into validity of defendant's guilty plea is not barred by double waiver) (citing Williams v. United States, 396 F.3d 1340, 1342 n.2 (11th Cir. 2005) ("there may be a distinction between a § 2255 claim of ineffective assistance in entering or negotiating the plea versus a claim of ineffectiveness at sentencing or a claim challenging the validity of the plea or agreement."); United States v. Smith, 759 F.3d 702, 708 (7th Cir. 2014) ("Smith knowingly and voluntarily waived his appellate rights, including his right on appeal to contend that his counsel below was ineffective as to any matter other than the waiver and his negotiation of it.") (emphasis added); Holland v. United States, 2014 WL 5241531 at *2-3 (S.D. Ga. Oct 14, 2014).
Simmons has not raised a claim that his counsel somehow misled him into accepting the plea agreement. His only claim goes to a sentencing guidelines error and in his original § 2255 proceedings he actually conceded that he understood and agreed to the waiver. "There is no question that the district court discussed and specifically questioned Movant regarding the plea waiver. There is also no dispute that the record unequivocally show[s] Simmons indicating that he understood the plea waiver." (Cr. doc. 169 at 24.)
Elijah Simmons's § 2255 motion should be DENIED. Applying the Certificate of Appealability ("COA") standards, the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED