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Simpson v. Rios

United States District Court, D. Minnesota

July 2, 2018

LOUIS SIMPSON, Petitioner,
v.
WARDEN M. RIOS, FPC Duluth, Respondent.

          Louis Simpson, Reg. No. 02297-028, FPC-Duluth, pro se petitioner.

          Ana H. Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY'S OFFICE, for respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM CHIEF JUDGE

         Louis Simpson, a federal prisoner incarcerated at the Federal Prison Camp in Duluth, brings a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. Simpson challenges his conviction in the U.S. District Court for the Eastern District of Texas on two counts of aggravated identity theft and seven counts of wire fraud. U.S. Magistrate Judge Steven E. Rau issued a Report and Recommendation (“R&R”), recommending that the Court dismiss the petition without prejudice for lack of jurisdiction. Because Simpson has not shown that 28 U.S.C. § 2255 provides an inadequate or ineffective remedy, the Court will find that it lacks jurisdiction to hear Simpson's case, adopt the R&R, and dismiss Simpson's petition without prejudice.

         BACKGROUND

         In October 2009, a jury in the U.S. District Court for the Eastern District of Texas found Simpson guilty of two counts of aggravated identity theft under 18 U.S.C. § 1028A and seven counts of wire fraud under 18 U.S.C. § 1343. Simpson v. United States, 08-123, 2015 WL 1384900, at *1 (E.D. Tex. 2015). At trial, the Government presented evidence that Simpson had created and executed a scheme to defraud U.S. Benefits (“USB”) by soliciting investments for a nonexistent program with the Department of Housing and Urban Development (“HUD”). Id. at *1-3. As part of this scheme, Simpson falsified documents and forged signatures of HUD employees. Id. The court sentenced Simpson to 183 months' imprisonment. Id. at *1.

         I. DIRECT APPEAL

         Simpson appealed his conviction on the grounds that the trial court abused its discretion by (1) failing to provide a “puffery” instruction and (2) by ordering a restitution payment of more than $1 million. United States v. Simpson, 440 Fed.Appx. 393, 393 (5thCir. 2011). The Fifth Circuit affirmed Simpson's conviction, finding that the trial court did not abuse its discretion with regard to either ground and that the closing arguments and jury instructions sufficiently placed the puffery issue before the jury. Id. at 393-94. The Fifth Circuit also denied various pro se motions advanced by Simpson since they were “either barred by the proscription against hybrid representation . . . or [were] untimely.” Id. at 394 (citations omitted).

         II. SECTION 2255 PETITION

         After the Fifth Circuit denied his appeal, Simpson filed a motion under 28 U.S.C. § 2255 in the Eastern District of Texas. Simpson, 2015 WL 1384900, at *1. Section 2255 allows federal prisoners to petition their sentencing court to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255(a). The court noted that, under Section 2255, Simpson could not relitigate issues raised and decided on direct appeal or litigate issues that he could have raised on direct appeal but did not. Id.

         Simpson asserted that the Government committed Brady/Giglio violations by allowing Government witnesses to testify as representatives of U.S. Benefits Plus, LP, when the indictment had charged him with defrauding “U.S. Benefits Plus Corporation or company” and U.S. Benefits Plus, LP did not exist until after his allegedly criminal actions occurred. Id. at *3-4. The magistrate judge recommended denying this claim as procedurally barred because Simpson could have raised it on appeal. Id. at *4. The magistrate judge also noted that this claim lacked merit. The indictment referred to “U.S. Benefits Plus, ” and testimony demonstrated that U.S. Benefits Plus was comprised of three entities (USB, U.S. Benefits Plus LP, and U.S. Benefits Plus, Inc.); thus, Government references to those entities referred to the same organization. Id.

         The magistrate judge also noted that most of Simpson's other claims lacked merit and recommended dismissing them as procedurally barred because Simpson could have raised them on appeal. Id. at *4-6. He considered the merits of Simpson's ineffective assistance of trial and appellate counsel claims but recommended denying them because Simpson did not show that he was prejudiced by his counsel's performance. Id. at *6-9.

         Noting that no objections had been filed, the district court adopted the magistrate judge's recommendations and dismissed Simpson's § 2255 Petition. Id. at *1. Simpson then filed a Motion for Reconsideration, arguing that he had filed objections to the magistrate judge's recommendations, which were timely under the prison-mailbox rule, and urged the district judge to conduct a de novo review. Simpson v. United States, 4:08CR123(1), 2015 WL 3899368, at *1 (E.D. Tex. June 23, 2015). The district court reviewed his objections de novo. Id. at *1-2. It also found that Simpson failed to show “manifest errors of law or newly discovered evidence that entitle[d] him to any further relief” and denied the motion. Id. at *2. Simpson sought a certificate of appealability from the Fifth Circuit but was denied. (Order Denying Certificate of Appealability, Jan. 19, 2016, No. 4:12-cv-31 (E.D. Tex.), Docket No. 36.)

         III. DOJ OFFICE OF ...


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