United States District Court, E.D. California
K. SINGLETON, JR. Senior United States District Judge
Allen Simmons, a California state prisoner proceeding pro
se, filed a Petition for a Writ of Habeas Corpus with
this Court pursuant to 28 U.S.C. § 2254. Simmons is in
the custody of the California Department of Corrections and
Rehabilitation and incarcerated at Mule Creek State Prison.
Respondent has answered, and Simmons has replied.
January 13, 2010, Simmons was charged by consolidated
information with four counts of committing a lewd or
lascivious act on a minor under the age of 14 years (Counts
1, 4-6); forcible sexual penetration (Count 2); forcible oral
copulation (Count 3); and exhibiting harmful matter to a
minor for purposes of seduction (Count 7). Counts 1-3
involved crimes committed in 1988 against D.C., his
then-girlfriend's 6-year-old niece. Count 4 was committed
between 1997 and 1998 against S.D., his then-girlfriend's
10- or 11-year old daughter. Counts 5-7 involved crimes
committed in between 1999 and 2000 against D.R., his
then-girlfriend's 6-year-old son. The information further
alleged that Counts 1-6 involved multiple victims within the
meaning of the One Strike Law and that Counts 5 and 6 involved
substantial sexual conduct. On September 8, 2010, Simmons
proceeded to a jury trial. On direct appeal of his
conviction, the California Court of Appeal recounted the
following facts underlying the charges against Simmons and
the evidence presented at trial:
Sexual Abuse of D.C. (Counts 1 through 3)
In January 1988, D.C. was six years old and periodically
stayed the night at her grandmother's house in Palo
Cedro, a small town east of Redding. The house had three
bedrooms, one occupied by D.C.'s grandmother, another
occupied by her aunt, Shirley, and a guest bedroom. D.C.
stayed in the guest bedroom, as did several cousins who were
also staying at the house. [Simmons], 20 years old at the
time, worked for D.C.'s father and was dating Shirley. He
routinely stayed the night at the house.
One night, [Simmons] came into the guest bedroom while D.C.
was sleeping, pulled back the covers, and crawled into bed
with her. D.C. was wearing a shirt and underwear. At first,
she thought [Simmons] “just needed a place to sleep,
like for whatever reason he couldn't sleep in the living
room.” [Simmons] then started rubbing her legs with his
hands, pushed up her shirt, and pulled down her underwear.
[Simmons] told D.C. “how soft [her] skin was.” He
then positioned his upper body on top of D.C., started
rubbing the inside of her legs with his hands, and penetrated
her vagina with his fingers. [Simmons] then “put his
mouth on [D.C.'s] vagina[l area]” and told her that
“he wanted [her] to do the same for him.” D.C.,
who had been quiet up to this point, “told him no and
tried to get out from under him.” [Simmons] told her to
“be quiet” and not to “tell anybody about
what happened because he would hurt [her] parents.”
[Simmons] then got out of bed, retrieved a towel from the
bathroom, and cleaned up something on the bed. D.C. put her
underwear on and went back to sleep.
That same month, D.C.'s mother, Terri C., became ill and
was hospitalized for seven days.FN1 The day Terri
C. was released from the hospital, D.C. told her mother that
[Simmons] pulled her underwear down and touched her while she
was staying at her grandmother's house. When Terri C.
told her husband about D.C.'s accusation, he did not
believe that [Simmons], one of his “best friends,
” had molested his daughter and told his wife not to
talk to D.C. about the incident. About a year later, Terri C.
took D.C. to child protective services for an evaluation and
told an acquaintance who worked for the sheriff's
department about the incident. However, no official report
was made to law enforcement until 2009, after [Simmons] was
arrested for the crimes committed against D.R., described
below. When Terri C. saw the arrest on the local news, she
called the Redding Police Department and reported that
[Simmons] had also molested her daughter.
Based on these facts, [Simmons] was convicted of one count of
committing a lewd or lascivious act on a minor under the age
of 14 years, one count of forcible genital penetration, and
one count of forcible oral copulation.
FN1. In order to safeguard the privacy of the victims in this
case, we do not include the last names of their parents.
Instead, each parent will be referred to by his or her first
name and the first letter of the last name.
Sexual Abuse of S.D. (Count 4)
[Simmons] was married to W.D. for four months between 1997
and 1998. He lived with W.D. and her two daughters, S.D. and
her older sister, in Shasta Lake City, a small town north of
Redding. S.D. turned 11 years old during this time period.
One afternoon during the marriage, while W.D. was at work,
[Simmons] was cooking dinner in the kitchen. S.D. “was
just running in there and bothering him and just playing
around.” [Simmons] unexpectedly pulled her pants and
underwear down to her ankles. S.D., “thinking that
[they] were playing, ” stepped out of her pants and
underwear, ran to the bathroom, locked the door, and got into
the shower. [Simmons] followed, unlocked the door, and came
into the bathroom. S.D. then got out of the shower, ran back
to the kitchen, and jumped up on the counter. [Simmons] again
followed. S.D. sat on the counter with her legs hanging over
the side. [Simmons] grabbed her knees, pushed them apart, and
looked at her vagina. Smiling in a “[p]erverse”
way, [Simmons] commented that she was “starting to grow
At this point, S.D. could hear the sound of her mother
pulling into the driveway. S.D. went into the living room,
found a pair of [Simmons'] boxers, and put them on. When
W.D. asked S.D. why she was wearing [Simmons'] boxers,
S.D. answered that she put them on after [Simmons] took her
pants off. At this point, [Simmons] yelled S.D.'s name in
a stern voice, “pretty much telling [her] to be
quiet.” S.D. stopped talking. A few minutes later, W.D.
called S.D. into her bedroom, where S.D. revealed what
Based on these facts, [Simmons] was convicted of one count of
committing a lewd or lascivious act on a minor under the age
of 14 years.
Sexual Abuse of D.R. (Counts 5 through 7)
[Simmons] dated Debbie B. between 1999 and 2000. He lived
with Debbie B. and her two sons, D.R. and C.R., in Redding
for two or three months during this time period. D.R. was six
years old. C.R. was four years old.
One day, while Debbie B. was out of the house, [Simmons] and
D.R. were in the living room watching television. [Simmons]
asked D.R. to go into his mother's bedroom. D.R. followed
[Simmons] into the bedroom and sat on the bed. [Simmons] put
on a pornographic movie depicting people having sex on a
beach and then joined D.R. on the bed. [Simmons] told D.R. to
take his clothes off, helped him do so, and started touching
D.R.'s legs and penis, making the boy feel
“[s]cared” and “[w]eird.” [Simmons]
then started touching his own penis, moved D.R.'s hand
over to his penis, and said: “Here, do this.”
D.R. touched [Simmons'] penis for a few minutes while
[Simmons] continued to touch D.R. [Simmons] then put
D.R.'s penis in his mouth, asked D.R. if he “liked
it, ” and told D.R. to continue touching him. A short
time later, [Simmons] took his mouth off of D.R.'s penis,
masturbated himself to ejaculation, and turned off the movie.
After telling D.R. not to tell anybody about what happened,
[Simmons] allowed D.R. to get dressed and return to the
living room to watch television.
D.R. did not tell his mother about this incident for about
two years. When he did so, he revealed only that [Simmons]
showed him a pornographic movie. He did not tell her more
because he “was still scared” and
“didn't want to tell anybody about it.”
Debbie B. took D.R. to the police station to report the
incident. At the station, D.R. repeated what he had told his
mother. At this point in time, [Simmons] was living in
Arkansas. He moved there shortly after he stopped dating
Debbie B. and lived there for six years.
A few years after D.R. first told his mother about the
incident, he told her more of what [Simmons] had done to him.
As Debbie B. explained, D.R. had taken a sexual education
class at school and told her that he had a better
understanding of what happened. This prompted Debbie B. to
take D.R. back to the police station. D.R. told police that,
in addition to playing a pornographic movie, [Simmons] also
touched D.R. and had D.R. touch him. D.R. did not tell police
about the oral copulation. Around this time period, D.R.
began to receive counseling and felt better able to discuss
everything that happened.
Ultimately, in 2009, D.R. told police the full extent of what
[Simmons] had done to him. While at the police station, D.R.
made a pretext call to [Simmons] in an effort to elicit
admissions concerning the abuse. [Simmons] said that
“he didn't remember doing it, ” but never
“said the words, I did not do this.” Debbie B.
also made a pretext call to [Simmons]. [Simmons] again
claimed not to remember abusing D.R., but “[n]ever once
did he deny it.”
Based on these facts, [Simmons] was convicted of two counts
of committing a lewd or lascivious act on a minor under the
age of 14 years and one count of exhibiting harmful matter to
a minor for purposes of seduction.
People v. Simmons, 148 Cal.Rptr.3d 554, 557-60
jury additionally found true the special allegation that
Counts 5 and 6 involved substantial sexual conduct and also
found true the multiple victim circumstance allegations as to
Counts 1-6. The trial court subsequently sentenced Simmons to
a determinate imprisonment term of 20 years, calculated as
the mid-term of 6 years on Count 1, 2, and 3, plus the 2-year
mid- term on Count 7, to run consecutively to one another.
The court further imposed an indeterminate term of 45 years
to life imprisonment, calculated as 15 years to life for
counsel, Simmons appealed his conviction, arguing that: 1)
Counts 4 and 7 were barred by the statute of limitations as a
matter of law; 2) the People presented insufficient evidence
to prove that the crimes alleged in Counts 1-3 were committed
before the statute of limitations expired; 3) the trial court
prejudicially erred and violated his constitutional rights by
failing to sua sponte instruct the jury to determine
whether the crimes alleged in Counts 1-3 were committed
before the statute of limitations expired; 4) trial counsel
rendered ineffective assistance by failing to raise the
statute of limitations with respect to Counts 1-3; 5) the
trial court's imposition of full-term consecutive
sentences on Counts 1 and 7 was not authorized by statute; 6)
the trial court was not authorized to impose a sentence of 15
years to life on both Count 5 and Count 6; and 7) the trial
court's imposition of consecutive sentences on Counts 4-6
must be vacated because the trial court erroneously believed
consecutive terms were required by statute. Respondent
conceded that the trial court was not authorized to impose
full-term consecutive sentences on Counts 1 and 7 and was not
authorized to impose a life sentence on both Count 5 and
Count 6, but otherwise opposed the appeal. On September 27,
2012, the Court of Appeal issued a reasoned, published
opinion accepting as correct Respondent's concessions and
reversing Simmons' conviction on Count 7.
Simmons, 148 Cal.Rptr.3d at 570. The appellate court
affirmed the remaining convictions but vacated the sentences
imposed to correct the sentencing errors to which Respondent
conceded. Id. Simmons petitioned for review of his
unsuccessful claims in the California Supreme Court, which
was summarily denied on January 30, 2013.
his appeal was pending, Simmons filed in the superior court a
pro se petition for habeas relief. In that petition,
he argued that: 1) the trial court exceeded its jurisdiction
when it imposed 15 year to life imprisonment sentences on
both Counts 5 and 6; 2) he was coerced into relinquishing his
right to testify and present a defense in his case by the
court's erroneous evidentiary rulings; 3) the prosecutor
committed misconduct by knowingly eliciting perjury and
making factual misrepresentations during closing arguments;
and 4) trial counsel rendered ineffective assistance. The
superior court denied the petition on the merits in an
unpublished, reasoned opinion issued on April 21, 2014.
Simmons then raised the same claims in a pro se
habeas petition filed in the Court of Appeal, which was
denied without comment on May 29, 2014.. He further raised
the claims in a pro se habeas petition filed in the
Supreme Court, which was likewise summarily denied on
September 10, 2014.
his state habeas petitions were pending, Simmons timely filed
a pro se Petition for a Writ of Habeas Corpus to
this Court on March 2, 2014. See 28 U.S.C. §
2244(d)(1)(A). Simmons also moved to stay the federal
proceedings pending exhaustion of four unexhausted claims,
Docket No. 4, which the Court, through a previously-assigned
magistrate judge, granted, Docket No. 6. After the state
courts denied his petitions, the Court lifted the stay and
directed Respondent to answer Simmons' Amended Petition
(“Petition, ” Docket No. 8). Docket No. 9.
Briefing is now complete, and the case has been reassigned to
the undersigned judge for adjudication.
pro se Petition before this Court, Simmons argues
that: 1) his trial counsel rendered ineffective assistance by
failing to request an instruction on the statute of
limitations; 2) the trial court erred in failing to sua
sponte instruct the jury on the statute of limitations;
3) the trial court violated the Ex Post Facto Clause by
improperly imposing concurrent 15-years-to-life sentences on
Counts 5 and 6; 4) his constitutional rights to testify and
to present a defense were violated by the trial court's
preliminary ruling on the admissibility of certain
impeachment evidence; 5) the ...