Case: 3:13-cv-00287-bbc Document #: 16 Filed: 09/20/13 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
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UNITED STATES OF AMERICA,
OPINION AND ORDER
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Defendant Andre Simmons has filed a timely motion for post conviction relief under
28 U.S.C. § 2255, raising 13 challenges to his 2011 conviction of five counts of distribution
of crack cocaine in violation of 21 U.S.C. §§ 841 and 851 and 18 U.S.C. § 2. I conclude
that defendant cannot proceed on any of the claims, for various reasons. Accordingly, his
motion will be denied.
From the record, I find the following facts.
On August 26, 2009, defendant was charged by a grand jury with five counts of
knowingly and intentionally distributing a mixture or substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Erika Bierma was appointed to
represent defendant, but on February 16, 2010, defendant asked for new counsel and the
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court appointed Paul F. X. Schwartz. More than six months later, defendant discharged
Schwartz and declined the court’s offer to appoint a third attorney to represent him. The
court conducted a hearing to determine that defendant was making an informed decision to
proceed pro se and later appointed Schwartz as standby counsel. On September 13, 2010,
the government filed an information under 21 U.S.C. § 851, giving defendant notice that
he would be subjected to enhanced penalties if he was convicted.
Defendant chose to waive his right to a jury. A bench trial began on December 6,
2010, ending in a finding that defendant was guilty on all counts. On January 4, 2011,
defendant requested appointment of counsel for appeal and Ronald Benavides was
The presentence report prepared by the probation office calculated a base offense level
of 28 (assuming that defendant’s relevant conduct involved at least 112 grams of crack
cocaine but no more than 196 grams), and then added four levels because defendant was an
organizer or leader in the criminal conspiracy, two levels for aggravating role in the offense
and two levels for obstruction of justice for committing perjury during his trial for a total
offense level of 36. With a criminal history category of VI, defendant had a guideline range
of 324 to 405 months.
The government advocated a reduction in the drug amount to 51 grams, so as to
avoid the possibility of double counting. If this estimate were adopted by the court,
defendant’s offense level would be 26 rather than 28 and his total offense level would be 34
rather than 36, with a guideline range of 262 to 327 months. At sentencing, I adopted the
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drug estimate but otherwise agreed with the probation office’s recommendation to add levels
for defendant’s role in the offence, his aggravating role and his obstruction of justice. The
result was that defendant’s total offense level was 34 and his guideline range was 262 to 427
months. I found that a guideline sentence was greater than necessary to achieve the
statutory purposes of sentencing and I sentenced defendant to a term of 240 months on each
count, with the terms to run concurrently.
Defendant filed a notice of appeal, still represented by Ronald Benavides. After
Benavides withdrew, the court of appeals appointed new counsel to represent defendant.
Appellate counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), along with
a request to withdraw, arguing that the court had erred in allowing defendant to represent
himself, the evidence was insufficient for conviction, the application of U.S.S.G. §
2D1.1(b)(14) violated the ex post facto clause and the court erred in calculating the amount
of cocaine attributable to defendant. The court of appeals rejected all of the arguments.
Defendant did not respond to his appointed counsel’s motion to withdraw or supplement
counsel’s Anders brief with his own arguments.
A preliminary matter must be addressed at the outset. Defendant contends that this
court must recuse itself from hearing his motion because it committed procedural error by
making a perjury determination at sentencing without explaining its reasons for doing so.
Dft.’s M., dkt. #1, at 24. Under 28 U.S.C. § 144, a judge is required to recuse herself if a
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party “files a timely and sufficient affidavit” alleging that she has “a personal bias or
prejudice” against him or in favor of any adverse party. Defendant’s contention fails on both
grounds. He has not filed an affidavit laying out his reasons for seeking recusal and he has
not alleged any grounds for believing that this court has a personal bias or prejudice against
him. His disagreement with a ruling made earlier in this case is not a valid reason for
recusal; it is the nature of the job that a judge will make rulings disfavoring one side or
another. Recusal requires more than “mere conclusions, opinions, or rumors.” United States
v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985). The party seeking recusal must show
that the judge’s bias is “personal rather than judicial and that it stems from an extrajudicial
source.” Id. (citations omitted). Defendant is complaining about a decision made in the
course of sentencing him, not about a personal bias stemming from an extrajudicial source.
If defendant believed that this court committed a procedural error at the time of his
sentencing, he should have raised that issue on appeal. It is not a ground for recusal.
I turn then to defendant’s claims, which can be grouped loosely into three categories.
(Many, if not most, of the claims fit in more than one category, but it does not seem
necessary to discuss all the ways in which they warrant dismissal.)
The first category includes the claims that defendant is raising in his post conviction
motion and he that he also raised on appeal: (1) the court failed to make an independent
determination of the amount of cocaine base attributable to defendant, Dft.’s M., dkt. #1,
at 9-11; (2) the evidence was insufficient to establish his guilt, id. at 20; (3) the court
violated his right to counsel in allowing him to represent himself, Id. at 24; and (4) the court
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lacked subject matter jurisdiction over the case and convicted him of a non-existent offense,
id. at 15, which is a variation of his challenge to the sufficiency of the evidence, and is
therefore barred as well. (In support of this last claim, defendant argues that the government
did not prove the necessary element of possession, id., because it never proved that the
transactions at issue involved him. However, possession was not an element of the offence;
defendant was charged with aiding and abetting the distribution of cocaine base.)
It is well established that a § 2255 motion is “‘neither a recapitulation of nor a
substitute for a direct appeal.’” Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007)
(quoting McCleese v. United States, 74 F.3d 1174, 1177 (7th Cir. 1996)). The law of the
case doctrine prevents such reargument, absent changed circumstances, which do not exist
in this case. Id. at 936.
The second category of claims includes those that defendant could have raised on
appeal but did not. A defendant is barred from raising such claims in a § 2255 motion
because the motion is not intended to be a substitute for direct appeal. Id.; Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996). Defendant can avoid this procedural bar
by showing good cause for his failure to raise the claims on direct appeal and actual prejudice
if he is not allowed to raise the claims or that “a refusal to consider the issue would lead to
a fundamental miscarriage of justice.” Prewitt, 83 F.3d at 816 (citing Reed v. Farley, 512
U.S. 339, 354 (1994)).
Defendant has not shown any good reason why he could not have raised the claims
in this category on direct appeal. Even if his appointed counsel refused to raise them, the
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court of appeals gave him an opportunity to add claims after his counsel filed an Anders
brief. In any event, defendant has failed to show that he would be prejudiced if he were not
allowed to raise the claims now and there is no reason to think that a refusal to consider
these claims would lead to a fundamental miscarriage of justice. Therefore, I will deny his
motion as it relates to the following claims: (1) the court erred in adding points for
obstruction of justice, id. at 24; (2) the court erred in admitting expert testimony, id. at 23;
(3) the government failed to comply with the notice requirements of 21 U.S.C. § 851, id.
at 12; (4) the court denied him access to law books, id. at 25; and (5) the court allowed the
government to put in evidence of defendant’s prior convictions and prior bad acts, id. at 4-5.
(Claims 3, 4 and 5 could also be denied on the ground that they lack any factual support.)
The third category includes miscellaneous claims: (1) the investigating officer ignored
witness Shannon Simmons’s request for counsel in violation of Miranda v. Arizona, 384
U.S. 436 (1966), id. at 6-9; (2) the government coerced Shannon Simmons into testifying
by threatening her with the loss of her child, id. at 17-19; (3) defendant would not have
committed the crimes had the government not entrapped him, id. at 13-14; and (4) his
counsel was constitutionally ineffective because he did not tell defendant about the plea
agreement by the government was offering, id. at 25.
The first and second of these third category claims can be discussed together because
both relate to alleged efforts to predetermine Shannon Simmons’s trial testimony. Even if
it were true that she was not read her rights, which the government denies, or that she was
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threatened with the loss of custody of her child into disclosing facts incriminating defendant,
the general rule is that constitutional rights such as the Fifth Amendment rights defendant
is raising are personal to the individual and cannot be asserted by a third party. United
States v. Salvucci, 448 U.S. 83, 86-87 (1980) (defendants charged with crimes of possession
may claim benefits of exclusionary rule only if their own Fourth Amendment rights have
The third claim in this category fails for a different reason. Defendant has not
supported his claim of entrapment with an affidavit to that effect, as he must before the
court is required to hold an evidentiary hearing on the allegation. Galbraith v. United
States, 313 F.3d 1001, 1009-10 (7th Cir. 2002) (court need not hold evidentiary hearing
on § 2255 unless movant files a detailed and specific affidavit showing that he has actual
proof of allegations going beyond mere unsupported assertions); see also Aleman v. United
States, 878 F.2d 1009, 1012 (7th Cir. 1989); Prewitt, 83 F.3d at 816. Even if defendant
had filed the required affidavit, it is highly unlikely he could succeed on it. A review of the
trial record shows that the evidence at trial would not have supported an entrapment
defense; the “inducement” for defendant to return to drug dealing was a call from an
informant asking for $200 worth of cocaine base, which is far from the “extraordinary
inducement” that might support a defendant’s assertion that he was not predisposed to
commit the crime. In any event, defendant was not denied his right to present an
entrapment defense; as he himself notes, he was only advised by his standby counsel that it
would not be effective. Dft.’s M., dkt. #3, at 13. Moreover, he could have argued the issue
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on direct appeal, but waived his right to do so.
Defendant’s fourth claim rests on his contention that his counsel was ineffective
because he did not tell defendant that the government had offered a plea bargain. He has
not filed an affidavit to that effect, whereas the government has filed the affidavit of Paul F.
X. Schwartz, who was representing defendant at the time, together with a copy of a June 7,
2010 letter from Schwartz to defendant, repeating the terms of the proposal and warning
him of the probable consequences of his failure to accept it. Dkts. ##11-5, 11-4. It is
always possible that a lawyer would withhold a plea agreement favorable to his client, but
the unlikelihood of that happening is great enough that it is particularly important for the
moving party to file an affidavit fleshing out his claims. Without such an affidavit,
defendant’s claim of ineffectiveness of counsel must be denied.
In a motion to amend his post conviction motion, dkt. #12, defendant contended
that he is entitled to resentencing under the Supreme Court’s recent decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013). He is wrong, for two reasons. First, the Court held
in Alleyne, that any fact that increases the mandatory minimum penalty is an “element of
the crime” and must be submitted to the jury. None of the facts found at defendant’s
sentencing could have had the effect of increasing the mandatory minimum penalty for
defendant’s offenses, because the offenses do not carry a mandatory minimum penalty.
Second, the Supreme Court has not held that Alleyne is applicable to cases on collateral
review, Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013), and it is improbable
that it will, since it has never given retroactive application to its holding in Apprendi v. New
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Jersey, 530 U.S. 466 (2000), that the court cannot make the decision whether the
defendant’s conduct meets the requirements for a mandatory maximum sentence.
In summary, all of defendant’s claims must be denied.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a defendant.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means that "reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Defendant
has not made a substantial showing of a denial of a constitutional right so no certificate will
issue. Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case because the question is not
a close one.
IT IS ORDERED that defendant Andre Simmons’s motion to amend his motion for
post conviction relief under 28 U.S.C. § 2255, dkt. #12, is GRANTED, and his motion for
post conviction relief, dkt. #1, is DENIED for his failure to show that he is entitled to such
relief. Further, it is ordered that no certificate of appealability shall issue. Defendant may
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seek a certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 20th day of September, 2013.
BY THE COURT:
BARBARA B. CRABB