Defendant (2) CURTIS SIMMONS represented by CURTIS SIMMONS PRO SE PETER E. RODWAY RODWAY & HORODYSKI ATTORNEY TO BE NOTICED Designation: CJA Appointment
Plaintiff USA represented by MARGARET D. MCGAUGHEY U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE DAVID B. JOYCE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE DONALD E. CLARK U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE ATTORNEY TO BE NOTICED
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
John C. Nivison Magistrate Judge
Petitioner Curtis Simmons pled guilty in March 2012 to one count of conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846. The Court subsequently sentenced Petitioner to a term of imprisonment of 114 months followed by three years of supervised release. (Judgment, ECF No. 156.) Petitioner filed an appeal, but voluntarily dismissed the appeal. Petitioner then filed the pending motion pursuant to 28 U.S.C. § 2255, in which motion Petitioner alleges ineffective assistance of counsel in connection with the sentencing. (Motion, ECF No. 184.) Specifically, Petitioner maintains that counsel failed to advocate that the drug quantity should have been lower to account for the legitimate prescriptions that he and his wife, co-defendant Allison Simmons,  had for oxycodone. Petitioner also claims that his counsel was ineffective by failing to advocate for a downward departure for the mental and physical abuse that Petitioner’s father inflicted on him when he was a child. The government requests a summary dismissal. The recommendation is that the Court deny Petitioner’s request for relief, and dismiss Petitioner’s motion.
I. Facts and Procedural History
In Count I of the superseding indictment, the government charged that from March to October 2010, Petitioner and his wife knowingly and intentionally conspired with other persons to distribute and to possess with intent to distribute oxycodone. (Superseding Indictment, ECF No. 44.) Count II, in which the government alleged that Petitioner and his wife knowingly and intentionally possessed with intent to distribute oxycodone, was eventually dismissed on the government’s motion. (Judgment at 1-2.) After a competency hearing, which included the presentation of an independent psychological evaluation, the Court found Petitioner competent to stand trial. (Order, ECF No. 96; Minute Entry of Hearing, ECF No. 99.) Following an evidentiary hearing on Petitioner’s motion to suppress, the Court affirmed the recommended decision to deny the motion. (Order, ECF No. 123.)
Thereafter, Petitioner changed his plea to guilty, conditioned on his appeal of the denial of his motion to suppress. (Conditional Plea, ECF No. 129.) In connection with the plea, the government represented that if the case were to proceed to trial, the government would prove beyond a reasonable doubt that Petitioner and his wife acquired oxycodone pills in Florida and transported them to Maine for further distribution. (Prosecution Version at 1, ECF No. 126.) According to the government, the evidence would establish that a search warrant that was executed on August 20, 2010, at a trailer in which Petitioner, his wife, and another defendant in a related case were sleeping, yielded approximately 671 pills and over $20, 000 in United States currency. (Id.) Petitioner was arrested on state charges and taken into custody. (Id.)
The government also asserted that on October 14, 2010, agents met Petitioner’s wife as she exited a plane at Portland International Jetport, searched her bags with her consent, and found 520 30-mg oxycodone pills in her bags. (Id. at 2.) In the days preceding the search of Petitioner’s wife’s luggage at the airport, Petitioner had participated in a series of phone calls with his wife that included the following: Petitioner referred to himself as a “nervous wreck;” she told him that she had a “huge tampon in” and was “very uncomfortable;” and he responded, “I know. Don’t say nothing .” (Id. at 1-2.)
During the colloquy at the hearing on the change of plea, Petitioner told the Court that based on his personal knowledge, the prosecution version was true. (Plea Hearing Tr. at 14-15, ECF No. 176.) Petitioner’s counsel then represented that Petitioner disagreed with the prosecution’s statement that Petitioner had admitted to selling pills to various persons. (Id. at 15.) Counsel told the Court that he believed that even without that admission there was a factual basis for the plea. (Id.) The Court concluded that there was a factual basis for the plea. (Id.) The Court then accepted Petitioner’s conditional guilty plea. (ECF Nos. 129, 130.) In this motion, Petitioner does not challenge the plea.
The revised presentence investigation (PSI) report states that Petitioner was born in 1961, that Petitioner had no high school diploma or GED, and that in the August 20, 2010, search of the trailer occupied by Petitioner, his wife, and Linda Cardenales, who is a defendant in a separate case, agents found the following items:
• 611 30-mg oxycodone pills in a glass jar in the bedroom that Petitioner and his wife occupied;
• 20 30-mg oxycodone pills in the purse of defendant Cardenales;
• 40 30-mg pills in an envelope in the room of defendant Cardenales;
• 8 marijuana plants growing in the back yard;
• a loaded shotgun and two boxes of ammunition in a ...