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Simmons v. United States

United States District Court, D. Delaware

February 3, 2017

KIRK A. SIMMONS, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Cr. Act. No. 13-97-LPS

          Kirk A. Simmons. Pro se Movant.

          Graham Lewis Robinson, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

          MEMORANDUM OPINION.

          STARK; U.S. District Judge.

         I. INTRODUCTION

         Kirk A. Simmons ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (D.I. 56) The United States ("Government") filed an Answer in Opposition. (D.I. 71) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

         II. PROCEDURAL AND FACTUAL BACKGROUND

         On or about June 13, 2013, a Delaware State Police ("DSP") detective assigned to the Delaware Child Predator Task Force ("UC-1") undertook an online undercover investigation for individuals seeking to meet and engage in unlawful sexual activity with minors. (D.I. 71 at 2) At approximately 9:50 a.m. on June 13, 2013, UC-1 posted an advertisement in the "personals" section of the adult social networking website located at www.wife.lovers.com. The advertisement was entitled "fam love/taboo" and read: "41 dad of 2 looking for very discreet/no games or RP fun. Nothing off limits." Id. UC-1 wrote that "serious" responders should contact him at an undercover Yahoo email address listed in the advertisement. Id.

         On or about June 13, 2013, at approximately 3:21 p.m., UC-1 received an instant message ("IM") from a subject with the screen name "krk.smmns, " who was subsequently identified as Movant. (D.I. 71 at 2) The IM stated that he "saw [UC-l's] posting on Personals on wifelovers" and was "looking for someone to cum with." Id. After some conversation about what type of sexual activity UC-1 was proposing, UC-1 explained that he was divorced and was referring to his "daughter, " whom he had custody of on certain weekdays and weekends. Movant then spent the next several minutes asking a series of questions regarding whether the "daughter" was "interested;" "can this happen during weekdays;" and "Possible the three of us could meet?" (D.I. 71 at 2-3)

         UC-1 then wrote: "i have to ask how young is too young dont want to have u freak out and need to be up front so we dont waste time." The following conversation ensued:

3:43:03 PM krk.smmns: I really don't know
3:43:09 PM krk.smmns: is she a teenager?
3:43:15 PMUC-1: 13
3:43:22 PM UC-1: 14 in december
3:43:45 PM krk.smmns: I assume a virgin
3:43:50 PM UC-1: lol no
3:43:59 PM krk.smmns: have u had her?
3:44:03 PMUC-1: yes
3:44:12 PM krk.smmns: and she wants another?
3:44:25 PM UC-1: like i said told her i want to watch
3:44:33 PM UC-1: shes not a whore or ...

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