United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
NANCY G. EDMUNDS UNITED STATES DISTRICT COURT JUDGE
Simmons, (“Petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his conviction for
first-degree premeditated murder, M.C.L.A. 750.316; assault
with intent to commit murder, M.C.L.A. 750.83; assault with
intent to do great bodily harm, M.C.L.A. 750.84; possession
of a firearm by a felon, M.C.L.A. 750.224f; and possession of
a firearm in the commission of a felony, M.C.L.A. 750.227b.
For the reasons that follow, the petition for writ of habeas
corpus is DENIED.
was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009):
appeal arises from a shooting on April 19, 2013, in Detroit,
which resulted in the death of one of the victims, Donte
Mack. On April 19, 2012, at approximately 4 or 5:00 p.m.,
Faris Matti was working at the K & G Market on East
Warren. According to Matti, defendant came into the K & G
Market every day, when defendant came in on April 19, 2013,
Matti noted that defendant was wearing a jacket with a
picture of President Obama's face stitched into the back.
At approximately 8:45 p.m., Kila Parks drove herself, Donte
Mack, and their one-year-old daughter Dariyah Mack, to the K
& G Market in Parks' Saturn. When they arrived at the
K & G Market, Donte went straight inside and Parks
noticed defendant standing against the K & G Market
approximately 9 to 12 feet from where she was sitting in her
car. At some point, Parks noticed that defendant entered the
K & G Market through the side wearing a black
“hoodie” sweatshirt. Inside the store, defendant
purchased chips, threw money at Matti, and left the store.
Parks saw that Donte had come out of the K & G Market, so
she unlocked her doors, when he got inside the car he locked
the doors. Parks saw defendant walking behind Donte, and as
soon as Donte locked the doors, she heard gunshots. Parks saw
the bottom of defendant's pants and “hoodie”
sweatshirt through the passenger side window of the car.
Parks heard a total of 10 or 11 gunshots, which sounded like
they came from the same gun and lasted for approximately 10
seconds. Matti also heard gunshots approximately 30 or 40
seconds after defendant left the store. Matti testified that
he looked up and saw the shooting through the K & G
Market's security camera.
After the shooting stopped, Parks saw defendant run, she then
got out of the car and began to scream. Donte told her to
grab Dariyah, he fell and sat down outside of the store,
Parks took Dariyah into the K & G Market. During the
shooting, Parks was shot twice in the leg, twice in the arm,
once in the bladder, once in the kidney, and once in the
liver. Dariyah was not injured.
Detroit Police Officer Michael Angeleri arrived at the scene
and saw a car with the passenger side window shot or broken
out. He also saw Donte lying face down at the entrance of the
K & G Market. Donte and Parks were transported to the
hospital by ambulance, but Donte was dead on arrival. Parks
had surgery on her arm and bladder. After the incident, Parks
was shown a photographic lineup and identified defendant as
Detroit Police Officer Lance Sullivan arrived at the scene of
the incident at approximately 11:00 p.m., and obtained
surveillance videotape footage from the K & G Market.
Several “screen shot” images of the videotape
footage were admitted at trial. One image showed Donte at the
counter of the K & G Market, while another image showed a
person in dark clothing, a dark “hooded” jacket,
and white shoes entering the K & G Market. The next image
showed the person at the store counter, then the next images
showed Donte walking toward the door of the K & G Market
and exiting. The person in dark clothing then exited the
store. Other images presented at trial showed a person
wearing a “dark hood” standing at the passenger
side door of a car extending his arm toward the door, an
image showing a person with his right arm pointing and an
image of a shadow on the sidewalk, and a “long
item” appeared near the head of the person in the
shadow. Additionally, the surveillance videotape recordings
were also played at trial, and Officer Sullivan described
what they depicted. One videotape recording showed an
individual walk to a car parked at the K & G Market, and
another individual approached the car. Two additional
videotape recordings showed Donte leave the K & G Market,
the man in the “hooded” sweatshirt leave, and a
young woman come into the store with a young child shortly
thereafter. Relative to the surveillance evidence, Matti
informed the police that the video recording revealed that
defendant was the person who started shooting.
Matti testified that on April 20, 2013, defendant came into
the K & G Market. Matti telephoned the police, who
searched the area and found defendant with a woman, DeAngela
Kelly. Defendant was wearing a jacket with President
Obama's picture on the back, he was immediately arrested
and while conducting a search of his jacket, Detroit Police
Officer Jarmiare McEntire, recovered 26 packages of
DeAngela Kelly testified as defendant's alibi witness at
trial, stating that she lived at 15736 Munich at the time of
the incident, was a friend of defendant and her sister was
defendant's girlfriend. Kelly further testified that
defendant came to Kelly's house on April 19, 2013, at
approximately 6 or 7:00 p.m., wearing a red shirt, blue
jeans, and a coat. According to Kelly, defendant fell asleep
on the floor of her bedroom, so she and her son went into
another room to watch television. Kelly's sister arrived
at her house at approximately 8:00 p.m., and she stayed at
the house until sometime between 8:30 and 9:00 p.m. Kelly
said defendant was at her house until she fell asleep at
approximately 9:15 or 9:30 p.m., when she woke up around 1 or
2:00 a.m., defendant was no longer in her house. Defendant
testified on his own behalf at trial, explaining that he and
Donte were friends and there was no ill will between them.
According to defendant, he went to the K & G Market at
approximately 3:30 p.m. on April 19, 2013. He admitted that
he was wearing the jacket with President Obama's face on
it and further testified that he encountered Donte at the K
& G Market, and Donte had given defendant advice because
someone had tried to rob him earlier in the day. Defendant
testified that he left the K & G Market at approximately
4:30 or 5:00 p.m and went to Kelly's house approximately
one hour later, wearing a red T-shirt and blue
“Mack” jeans, he said that he left his black
“hoodie” sweatshirt and coat downstairs.
Defendant testified that he left Kelly's house at
approximately 9:15 or 9:30 p.m. because he had heard that
there had been a shooting, so he went to the K & G Market
where he said he stayed for 5 or 10 minutes.
At approximately 9:40 p.m., defendant said he left the scene
of the incident and partied with a woman named Ashley for the
rest of the night.
Defendant testified that he sold medical marijuana, but he
did not have a prescription to sell medical marijuana.
Defendant also admitted to selling drugs on occasion while he
was at the K & G Market, but that he never intended to
sell the 26 bags of marijuana that were found in his coat
when he was arrested. He also admitted at trial, that during
a telephone conversation in jail, he said that Donte was the
man he “wacked out.” However, according to
defendant's testimony, he meant to say: “Is that
the one they said that I shot?”
The jury convicted defendant as outlined above. Defendant was
then sentenced by the trial court as previously stated. This
appeal then ensued.
People v. Simmons, No. 318564, 2015 WL 302751, at
*1-3 (Mich. Ct. App. Jan. 22, 2015).
conviction was affirmed on appeal. Id., lv. Den. 498
Mich. 884 (2015).
seeks a writ of habeas corpus on the following grounds: (1)
petitioner was denied a fair trial because of judicial
misconduct, (2) petitioner was denied a fair trial because of
prosecutorial misconduct, and (3) petitioner was denied the
effective assistance of trial counsel.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his or her claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Court notes that the Michigan Court of Appeals reviewed and
rejected petitioner's first and second claims under a
plain error standard because petitioner failed to preserve
the issues by objecting at the trial court level. People
v. Simmons, 2015 WL 302751, at * 3, 8.
Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir.
2009), a panel of the Sixth Circuit held that the AEDPA
deference applies to any underlying plain-error analysis of a
procedurally defaulted claim. In a subsequent decision, the
Sixth Circuit held that that plain-error review is not
equivalent to adjudication on the merits, so as to trigger
AEDPA deference. See Frazier v. Jenkins, 770 F.3d
485, 496 n. 5 (6th Cir. 2014). The Sixth Circuit noted that
“the approaches of Fleming and
Frazier are in direct conflict.” Trimble
v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When
confronted by conflicting holdings of the Sixth Circuit, this
Court must follow the earlier panel's holding until it is
overruled by the United States Supreme Court or by the Sixth
Circuit sitting en banc. See Darrah v. City of
Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court
believes that the AEDPA's deferential standard of review
applies to petitioner's first and second claims, even
though they were reviewed only for plain error.
Claim # 1. The judicial bias/misconduct claim.
first claims that he was denied a fair trial because of
judicial bias or misconduct.
Process Clause of the Fourteenth Amendment requires a fair
trial in a fair tribunal before a judge with no actual bias
against the defendant or an interest in the outcome of the
case. See Bracy v. Gramley, 520 U.S. 899, 904-05
(1997). The right to an impartial judge is a right whose
deprivation a state prisoner may complain of in a federal
habeas corpus proceeding. Tyson v. Trigg, 50 F.3d
436, 438 (7th Cir. 1995)(citing to Turner v. Ohio,
273 U.S. 510, 523 (1927); In Re Murchison, 349 U.S.
133 (1955)). Trial judges have a wide latitude in conducting
trials, but they must preserve an attitude of impartiality
and scrupulously avoid giving the jury the impression that
the judge believes that the defendant is guilty.
Harrington v. State of Iowa, 109 F.3d 1275, 1280
(8th Cir. 1997); Brown v. Palmer, 358 F.Supp.2d 648,
657 (E.D. Mich. 2005).
in reviewing an allegation of judicial misconduct in a habeas
corpus petition, a federal court must ask itself whether the
state trial judge's behavior rendered the trial so
fundamentally unfair as to violate federal due process.
Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.
1995); Brown v. Palmer, 358 F.Supp.2d at 657. To
sustain an allegation of bias by a state trial judge as a
grounds for habeas relief, a habeas petitioner must factually
demonstrate that during the trial the judge assumed an
attitude which went further than an expression of his or her
personal opinion and impressed the jury as being more than an
impartial observer. Brinlee v. Crisp, 608 F.2d 839,
852-53 (10th Cir. 1979); Brown, 358 F.Supp.2d at
657. A trial judge's intervention in the conduct of a
criminal trial would have to reach a significant extent and
be adverse to the defendant to a significant degree before
habeas relief could be granted. McBee v. Grant, 763
F.2d 811, 818 (6th Cir. 1985); Brown, 358 F.Supp.2d
at 657. The Supreme Court has ruled that “expressions
of impatience, dissatisfaction, annoyance, and even
anger” do not establish judicial bias or misconduct.
Liteky v. United States, 510 U.S. 540, 555-56
(1994). “A judge's ordinary efforts at courtroom
administration-even a stern and short-tempered judge's
ordinary efforts at courtroom administration-remain
first claims that the trial judge improperly questioned Ms.
Parks with the following questions:
THE COURT: Ms. Parks, you drove the car, right?
THE WITNESS: Yes.
THE COURT: All right. And Mr. Mack was in the passenger seat
of the front seat?
THE WITNESS: Yes.
THE COURT: And do you remember where you parked the car when
you pulled up in front of K & G Party Store?
THE WITNESS: Yes, I do.
THE COURT: If I gave you a little piece of paper, could you
draw in for us where the car was?
THE WITNESS: If I could.
THE COURT: Okay. You see it says K & G Party Store.
THE WITNESS: Yes, and the sidewalk.
THE COURT: And the sidewalk. Okay. Draw in for us where you
parked your car. Can you 10 put an X where you first saw this
person that 11 ultimately wound up shooting? Put an X where
he was standing. Okay. Now put an S, the letter S, where he
was when the shooting started. When this shooting took place,
did the person who was doing the shooting say anything?
THE WITNESS: No.
THE COURT: When the shooting took place, Mr. Mack was already
in the car?
THE WITNESS: Yes.
THE COURT: In the front seat, passenger side?
THE WITNESS: Yes.
THE COURT: You had never gotten out of 24 the car by that
time, had you?
THE WITNESS: No.
THE COURT: And your daughter was in the center of the back
THE WITNESS: Yes.
THE COURT: So Mr. Mack was in between the shooter and your
THE WITNESS: Excuse me?
THE COURT: In the car there was a shooter that was outside;
is that right?
THE WITNESS: Yes.
THE COURT: Mr. Mack was seated in the front seat on the
passenger side, right?
THE WITNESS: Yes.
THE COURT: And your daughter was in the back seat, correct?
THE WITNESS: Yes.
THE COURT: So who was between the shooter and your daughter?
THE WITNESS: Mr. Mack, my child's father.
THE COURT: Right. Was there any particular reason why you
were going to this K & G Party Store that night?
THE WITNESS: No. It's the neighborhood store.
THE COURT: No further questions. Redirect.
(Tr. 9/4/13, pp. 157-60).
further argues that the judge's questioning of Detroit
Police Officer David Andrews with respect to the caliber and
make of the shell casings exhibited bias:
THE COURT: Officer Andrews, can you just return to your seat,
please? The spent shell casings that you and your partner
found outside of 15500 East Warren, were they all of the same
THE WITNESS: No, they weren't.
THE COURT: Look at the jury and speak into the ...