                Case: 15-11928   Date Filed: 04/03/2017     Page: 1 of 11


                                                                [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-11928
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket Nos. 5:11-cv-08027-CLS-TMP,
                             5:11-cv-08028-CLS-TMP


JOHN LAWSON SIMONS,

                                                      Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                      Respondent - Appellee.

                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                    (April 3, 2017)

Before MARCUS, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

         John Simons, a federal prisoner, appeals the district court’s denial of his

motions to vacate, filed pursuant to 28 U.S.C. § 2255, in two criminal cases. We
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granted a certificate of appealability on whether the district court erred in denying

Mr. Simons’ claim—asserted in both of his motions—that his counsel was

constitutionally ineffective because he failed to challenge the sufficiency of the

search warrant affidavit that led to the search of his home. Upon review of the

record and the parties’ briefs, we affirm.

                                             I

      In November of 2005, the father of a young woman contacted the FBI’s

Dallas Office to advise them that his daughter had received child pornography

from an adult male, who turned out to be Mr. Simons, through the Internet. One

email dated November 23, 2005, from Mr. Simons to the young woman attached

several images depicting children committing sexual acts.            In that email,

Mr. Simons stated in part: “Here are the child pics [sic]. I have more if you want

to see them.” The FBI executed a search warrant at Mr. Simons’ home based on

this information. The search, which took place on May 2, 2006, resulted in the

seizure of videotapes depicting child pornography, as well as notebooks with

handwritten notes describing in graphic detail Mr. Simons’ sexual activities with

minors, and other incriminating evidence.

      In January of 2008, Mr. Simons pled guilty in two criminal cases to a total of

22 counts of child pornography and pedophilia-related crimes. The district court

held a consolidated sentencing hearing and sentenced Mr. Simons to 10, 20, and 30


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years’ imprisonment on multiple counts and to a term of life imprisonment on one

count, for transportation with intent to engage in a sexual act with a minor, in

violation of 18 U.S.C. § 2423(a), all to be served concurrently. See Case No. 5:08-

cr-00247, D.E. 15; Case No. 5:08-cr-00408, D.E. 17. Mr. Simons did not appeal.

      In June of 2011, Mr. Simons filed pro se § 2255 motions in each of his cases

to set aside his convictions and sentences. In both motions, Mr. Simons argued

that his attorney should have challenged the search warrant affidavit that led to the

search of his home.      Mr. Simons claimed that the affidavit was based on

information from an isolated incident and that the officers had no other information

to support the search. He also argued that the information set forth in the affidavit

was stale because the pornographic images were sent on November 23, 2005, and

the search warrant did not issue until May 2, 2006. In his motions, he posited that,

had his counsel challenged the search warrant affidavit, then all of the evidence

used to support his convictions would have been suppressed and there would have

been “no evidence left” to support any of the charges in the indictments. In his

memoranda in support of his motions, he argued that, but for his counsel’s errors,

he would not have pled guilty and would have insisted on going to trial.

      In response, the government argued that Mr. Simons’ counsel performed

adequately and attached an affidavit from him. Counsel stated in the affidavit that

Mr. Simons expressed “early on and continuously” that he wanted to resolve the


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case “as soon as possible, to accept responsibility for his conduct, and to avoid, as

much as possible, public exposure.” Counsel also mentioned that Mr. Simons’

primary concern was his mother’s exposure to the details of his alleged conduct

and the judicial system. In relevant part, counsel explained that he had reviewed

the search warrant, determined that there was probable cause to justify the search

of the home, that the warrant was appropriately executed, and that he had informed

Mr. Simons of his opinion. Counsel also explained that Mr. Simons was also

indicted for acts committed after the search, which were unrelated to the items

seized from the home. According to counsel, Mr. Simons considered these matters

and decided not to contest the search of the home. 1

       The magistrate judge recommended in his report and recommendation that

Mr. Simons’ motions to vacate be denied. The magistrate judge found that there

was probable cause to believe that evidence that Mr. Simons committed the offense

of possession and/or production of child pornography would be found at his home.

The magistrate judge acknowledged that the warrant application stated that

offenders inclined to possess and view child pornography are likely to retain the

pornography for long periods of time, and given this asserted tendency, the date the

information was obtained does not necessarily lead to the conclusion that it was


1
  The magistrate judge’s report and recommendation states that Mr. Simons did not dispute that
his counsel discussed the search with him and that he made the decision not to challenge the
warrant.
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stale. Moreover, even if the warrant affidavit did rely on stale information, there

was no basis for finding that a reasonable attorney could not have concluded that

challenging the search on staleness grounds was a longshot, and if unsuccessful,

harmful to plea negotiations. The magistrate judge recognized that Mr. Simons’

counsel had discussed the evidence with him, that Mr. Simons wanted to bring the

prosecution to an end quickly, and importantly, that the prosecution still had access

to the evidence supporting the most serious crimes even without the evidence

seized from the home.

      The district court adopted and accepted the magistrate’s report and

recommendation over Mr. Simons’ objections. The district court pointed out that

the magistrate judge had reviewed the warrant application and affidavit, and had

concluded that probable cause existed for the warrant. The district court relied on

counsel’s affidavit to find that Mr. Simons waived any defect in the failure to

challenge the warrant and concluded that there was a professionally reasonable

basis to forgo a challenge because Mr. Simons had decided he wanted to plead

guilty rather than contest the search warrant. The district court also ruled that even

if Mr. Simons’ counsel had filed a motion to suppress and been successful,

Mr. Simons would not have been saved from the evidence underlying the charge—

transporting a minor for sexual purposes—that led to his life sentence.




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                                          II

      We review de novo a claim of ineffective assistance of counsel. Cardeno v.

United States, 256 F.3d 1213, 1216–17 (11th Cir. 2001).

                                         III

      To successfully prove ineffective assistance of counsel, a defendant must

show that (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668,

687 (1984).    There is a strong presumption that counsel provided adequate

assistance and made all significant decisions in the exercise of reasonable

professional conduct.    See id. at 690.       To make a showing of deficiency, a

defendant must show that counsel made “errors so serious that [he] was not

functioning as the ‘counsel’ guaranteed to the defendant by the Sixth

Amendment.” Id. at 687. Prejudice is demonstrated when there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. In a case involving a guilty

plea, the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pled guilty and would have insisted on going

to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      A search warrant may only issue upon a finding of probable cause. See

United States v. Ventresca, 380 U.S. 102, 107 (1965). To satisfy the probable


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cause standard, the government must “reveal facts that make it likely that the items

being sought are in that place when the warrant issues.” United States v. Harris,

20 F.3d 445, 450 (11th Cir. 1994). As a result, the information supporting the

government’s application for a search warrant must be timely. See id.

      If the information used to support a warrant application is stale, then the

application fails to create probable cause that similar or other improper conduct is

continuing. See id. Courts, however, do not use arbitrary time limitations for

presenting information to a magistrate judge, and each case is reviewed

individually. See id. Some factors courts consider include: the maturity of the

information, the nature of the suspected crime, the habits of the accused, the

character of the items sought, and the nature and function of the premises to be

searched. See id.

                                         A

      On appeal, Mr. Simons argues that his counsel performed deficiently

because he should have moved to suppress the evidence seized pursuant to the

search warrant. He claims that the information that was the basis of the search

warrant was stale because the pornographic images were, at the latest, transmitted

on November 23, 2005, and the search warrant was not issued until May 2, 2006.

He also claims that the affidavit failed to connect the email address associated with




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the transfer of images to his home. He generally argues that his counsel should

have tried to minimize his exposure to life imprisonment.

      Mr. Simons maintains that he was prejudiced by his counsel’s failure to

move to suppress the evidence found in the home because the fruits of the search

are what could have subjected him to 310 years’ imprisonment.                Mr. Simons

contends that, had his attorney moved to suppress the evidence, he would have

been able to further plea negotiations, which he claims never occurred. He argues

that because he knew the evidence stemming from the search would be used

against him, he pled guilty blindly. He maintains that he would have insisted on

going to trial had he been faced with the decision to go to trial or enter a plea

without the fruits of the search.

                                             B

      In response, the government argues that counsel’s performance was not

deficient because the warrant was properly issued: the information on which it was

based was not stale, and a connection between the email address and the home was

addressed in the affidavit. Further, Mr. Simons was not prejudiced for several

reasons. For one, there was no support for Mr. Simons’ claim that he would have

foregone his plea based on the belief that the evidence from the home could have

been suppressed.




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      The government explains that Mr. Simons wanted to minimize his mother’s

exposure to the negative information, and he wanted to plead guilty; had an

extensive plea colloquy in which he admitted to his actions and acknowledged that

he received proper assistance of counsel; and never sought to withdraw his guilty

plea. In addition, because Mr. Simons’ life sentence was not connected to the

evidence found at his home and those acts occurred after the search, Mr. Simons’

exposure to a life sentence was unaffected by his counsel’s decision not to contest

the warrant.

                                         C

      We conclude that Mr. Simons’ counsel was not ineffective for failing to

challenge the search warrant affidavit on staleness grounds. First, counsel believed

there was probable cause to support the issuance of the search warrant, and it was

not objectively unreasonable for him to have thought so. See Strickland, 466 U.S.

at 687–88.     The search warrant affidavit issued close to six months after

Mr. Simons sent the images, during which time the FBI was gathering details to

ensure that the correct person was identified and the proper location was searched.

In that time frame, the information forming the basis of the warrant did not become

stale. As noted by the search warrant application, individuals who collect child

pornography “rarely, if ever, dispose of their sexually explicit materials.”

Moreover, the email in question also stated: “I have more if you want to see them.”


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This indicated that the transmission was not an isolated incident, and that

Mr. Simons had additional images at his disposal.

       Even assuming the information was stale, it was not objectively

unreasonable for counsel not to move to suppress the evidence found at the home

because Mr. Simons informed him that he wanted the case to be resolved swiftly

and that he was prepared to accept the appropriate punishment for his actions.

Given his client’s preferences, counsel’s decision not to move to suppress was not

objectively unreasonable.

       Counsel was also not ineffective for failing to contest the affidavit on the

ground that there was no connection between Mr. Simons’ home and the email

account from which the images were sent.2 The government presented facts in the

search warrant affidavit that demonstrated that it would likely find the computer

used to transfer the pornographic images and related pornographic images at

Mr. Simons’ home. The affidavit explains how the government traced the email

address from which the pornographic images were sent to Mr. Simons and then

confirmed through a thorough investigation that the location it sought to search

was where Mr. Simons lived. It was not objectively unreasonable for Mr. Simons’




2
  Although Mr. Simons did not raise this argument in his § 2255 motions, he did raise it in his
motions for an evidentiary hearing, which were summarily dismissed as to this point. Given our
disposition, we need not address whether Mr. Simons forfeited this argument.
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counsel to have decided not to contest the sufficiency of the affidavit on this

ground.

          Even if counsel’s performance was deficient in these respects, Mr. Simons

cannot show prejudice. There is no indication from the record that Mr. Simons

would not have pled guilty or insisted on going to trial had his counsel moved to

suppress the evidence from the home. As explained above, it is unlikely that a

motion to suppress would have been successful on staleness grounds.               Even

assuming the motion’s success, the record shows that Mr. Simons had no interest

in going to trial. Mr. Simons told his counsel that he wanted to minimize his

mother’s exposure to the court system and accept punishment for his actions. On

appeal, Mr. Simons argues that the suppression of the evidence would have helped

plea negotiations reduce his exposure to a life sentence—not that he would have

gone to trial. His life sentence, moreover, stemmed from charges related to acts he

committed after the search.3

                                               IV

          We affirm the district court’s denial of Mr. Simons’ § 2255 motions.

AFFIRMED.




3
    We deny Mr. Simons’ request that we remand for an evidentiary hearing.
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