United States District Court, C.D. California
ORDER SUMMARILY DISMISSING HABEAS PETITION FOR LACK
OF SUBJECT MATTER JURISDICTION
MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE
11, 2016, petitioner filed a Petition for Writ of Habeas
Corpus by a Person in Federal Custody (28 U.S.C. §
2241). Petitioner is purporting to challenge the legality of
a sentence she sustained in October 2009 in the United States
District Court for the Northern District of Texas. The
Petition raises three claims of ineffective assistance of
discussed below, the instant Petition is subject to summary
dismissal for lack of subject matter jurisdiction because a
motion to contest the legality of a sentence generally must
be filed in the sentencing court pursuant to 28 U.S.C. §
2255, and the narrow exception to the general rule does not
apply here. Moreover, it is unnecessary to transfer this
action to any other court because petitioner previously
raised her claims in a § 2255 motion in the sentencing
court, and it was rejected on the merits.
October 2009, petitioner pled guilty in the United States
District Court for the Northern District of Texas of crimes
relating to the preparation of false tax returns. She was
sentenced to 216 months in federal prison and ordered to pay
approximately $28 million in restitution. See United
States v. Simmons, Case No. 4:08-cr-00131-A-1 (N.D.
Tex.). In April 2011, the Fifth Circuit Court of
Appeals affirmed petitioner’s conviction. See
United States v. Simmons, 420 F. App’x 414 (2011).
In October 2011, the Supreme Court denied her petition for
writ of certiorari. See Simmons v. United States,
132 S.Ct. 227.
September 2012, petitioner filed a motion to vacate sentence
under 28 U.S.C. § 2255 in the sentencing court. See
Simmons v. USA, Case No. 4:12-cv-00640-A (N.D. Tex.). In
her motion, petitioner raised the same three claims she is
raising in the instant Petition (plus other claims). In
December 2012, the sentencing court denied the § 2255
motion on the merits. In July 2013, the Fifth Circuit denied
petitioner’s request for a certificate of
September 2015, petitioner filed a Petition for Writ of
Habeas Corpus by a Person in Federal Custody (28 U.S.C.
§ 2241) in the United States District Court for the
Northern District of California. See Simmons v. United
States, Case No. C 16-0747 NJV (PR). (At the time
petitioner filed the Petition, she was incarcerated within
the territorial limits of the Northern District of
California.) The Petition raised four claims directed to the
calculation of petitioner’s restitution and sentence.
In February 2016, the Petition was dismissed because
petitioner’s claims did not qualify for the
“escape hatch” of 28 U.S.C. § 2255 and
because petitioner’s claims, or variations of her
claims, had already been rejected on the merits by the Fifth
Circuit on direct appeal. Petitioner filed a request for a
certificate appealability, which currently is pending in the
Ninth Circuit. See Simmons v. United States of
America, Case No. 16-15718.
interim, in December 2015, petitioner was transferred to a
federal prison within the territorial limits of the Central
District of California.
January 2016, petitioner filed a Petition for Writ of Habeas
Corpus by a Person in Federal Custody (28 U.S.C. § 2241)
in this Court. See Simmons v. Johnson, Case No. CV
16-00276 MWF (AFM). Petitioner claimed that the execution of
her restitution order was unlawfully delegated to the Federal
of Bureau of Prisons under its Inmate Financial
Responsibility Program. On May 27, 2016, the Petition was
dismissed without prejudice as moot because
petitioner’s restitution obligation eventually was
exempted from the program.
11, 2016, petitioner filed the instant Petition. Petitioner
claims that her counsel was ineffective during sentencing in
(1) failure to call a forensic tax expert;
(2) failure to investigate the sentencing court’s
application of two criminal history points for petitioner
having committed the offense while on ...