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Simmons v. United States

United States District Court, C.D. California

July 26, 2016

JOYCE SIMMONS, Petitioner,
v.
UNITED STATES, Respondent.

          ORDER SUMMARILY DISMISSING HABEAS PETITION FOR LACK OF SUBJECT MATTER JURISDICTION

          MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On July 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 counsel.

         As 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.

         PROCEDURAL HISTORY

         In 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.).[1] 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.

         In 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 appealability.

         In 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.

         In the interim, in December 2015, petitioner was transferred to a federal prison within the territorial limits of the Central District of California.

         In 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.

         On July 11, 2016, petitioner filed the instant Petition. Petitioner claims that her counsel was ineffective during sentencing in three respects:

(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 ...

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