United States District Court, D. Delaware
KIRK A. SIMMONS, Movant/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff. Cr. Act. No. 13-97-LPS
A. Simmons. Pro se Movant.
Lewis Robinson, Assistant United States Attorney, United
States Department of Justice, Wilmington, Delaware. Attorney
U.S. District Judge.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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)
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 ...