United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
APPOINTMENT OF COUNSEL AS MOOT [ECF NO. 14], DENYING THE
PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1], DENYING A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN
V. PARKER U.S. DISTRICT JUDGE
prisoner Willie Earl Simon, III (“Petitioner”),
has filed a pro se habeas corpus petition,
challenging his Oakland County, Michigan conviction for one
count of first-degree criminal sexual conduct. See
Mich. Comp. Laws § 750.520b(1)(b)(ii) (sexual
penetration of a person who is related to the defendant and
is at least thirteen years old, but less than sixteen years
old). Petitioner alleges as grounds for relief that his trial
attorney was ineffective, the prosecutor shifted the burden
of proof, and the trial court erred when sentencing him. The
State argues in an answer to the petition filed through
counsel that Petitioner's prosecutorial-misconduct claim
is procedurally defaulted, that Petitioner's sentencing
claims are not cognizable on habeas review, and that the
state courts' rejection of Petitioner's claims did
not result in decisions that were contrary to federal law,
unreasonable applications of federal law, or unreasonable
determinations of the facts. The Court agrees with this
assessment of Petitioner's claims. Accordingly, the
habeas petition and Petitioner's motion for appointment
of counsel will be denied.
charge against Petitioner arose from allegations that he
raped his half-sister. He initially pleaded guilty to the
charge, but withdrew his plea at sentencing. He was
subsequently tried before a jury in Oakland County Circuit
Court. The Michigan Court of Appeals accurately summarized
the testimony at trial as follows:
The victim's mother testified that defendant, her
daughter's half-brother, stayed at her home for two weeks
in August 2009 after a birthday party. The victim was 14
years old at the time, has cognitive impairments, and has a
history of seizures. The victim testified that defendant was
her brother because they both have the same father, Willie
Simon, Jr. The victim also testified that, while defendant
was staying at her house, he repeatedly raped her both
vaginally and anally. The victim did not understand sex and
did not know that she had become pregnant. The victim's
mother explained that her daughter's lack of a
[menstrual] period over the next few months was attributed to
being taken off a seizure medicine that she had been on for a
long period of time. Because the victim was suffering from
prolonged stomach pains, the victim's mother took her to
see her pediatrician in January 2010 when the pregnancy was
discovered. Shortly thereafter, the victim underwent a
late-term abortion procedure that took two days to complete.
DNA evidence was taken from the fetal tissue and turned over
to the police. Police took buccal swab samples from both
defendant and the victim. These DNA samples confirmed that
defendant was the father of the aborted fetus. Police also
took a buccal swab sample from Simon, Jr. The DNA taken from
Simon, Jr. showed that he was the father of both defendant
and the victim.
People v. Simon, No. 305939, 2013 WL 1137116, at *1
(Mich. Ct. App. Mar. 19, 2013).
did not testify, but he presented two defense witnesses: his
mother, Lisa Reynolds, and his father, Simon, Jr. (ECF No. 1
at Pg ID 9, 12.) Ms. Reynolds testified that Petitioner began
to associate with the victim in August 2009 and that Simon,
Jr. had informed her that the victim was his daughter.
(Id. at Pg ID 10, 12.)
Jr. testified that Petitioner and the victim were his
children, but that he first learned of the victim's
existence in 1997 when the victim was about three years old
and he was arrested on a warrant for failure to pay child
support. (ECF No. 13-14 at Pg ID 659-60.) He also testified
that he saw his brother and the victim's mother having
sex in his bathroom in 1994 and that incident caused him to
question whether he was really the victim's father.
(Id. at Pg ID 664.) He claimed that he did not
challenge paternity of the victim because he could not afford
a DNA test at the time. (Id. at Pg ID 666.) Defense
counsel did not request any jury instructions on
lesser-included offenses, and, on July 21, 2011, the jury
found Petitioner guilty, as charged, of first-degree criminal
sexual conduct. Simon, No. 305939, 2013 WL 1137116
at *1. On August 15, 2011, the trial court sentenced
Petitioner to prison for 135 months (eleven years, three
months) to thirty years with 442 days of jail credit.
Id. at *6. The court also assessed fees and costs,
directed Petitioner to comply with HIV testing and the Sex
Offender Registration Act, and ordered lifetime GPS
monitoring. (See ECF 1 at Pg ID 12.)
raised his habeas claims in an appeal of right. The Michigan
Court of Appeals affirmed his conviction and sentence,
see Simon, No. 305939, 2013 WL 1137116, and the
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the issues. See People v.
Simon, 495 Mich. 853; 835 N.W.2d 589 (2013) (table).
November 7, 2013, Petitioner filed his habeas petition in the
United States District Court for the Western District of
Michigan, which transferred the case to this District because
venue was proper here. Petitioner's grounds for relief
read as follows:
I. Defendant was denied his right to effective assistance of
counsel where he admitted to a lesser offense but trial
counsel failed to request instructions on a lesser included
offense. U.S. CONST AM VI
II. Prosecutorial misconduct denied Mr. Simon a fair trial
where the prosecution shifted the burden of proof during
cross-examination and closing argument.
III. The sentencing court made two guidelines-scoring errors.
Because correction of the mistakes would change the
guidelines range, Mr. Simon must be re-sentenced.
IV. Because Mr. Simon was convicted of offenses against a
complainant who was not “less than thirteen years of
age, ” lifetime electronic monitoring was not a
permissible sentence condition. Counsel was ineffective for
failing to object.
(Brief in Support of Pet. for Writ of Habeas Corpus, pages 5,
9, 13, and 16, ECF No. 1, Pg ID 13, 17, 21, 24.)
STANDARD OF REVIEW
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to §
2254, the Court may not grant a state prisoner's
application for the writ of habeas corpus unless the state
court's adjudication of the prisoner's claims on the
(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.
28 U.S.C. § 2254(d).
Under the “contrary to” clause [of §
2254(d)(1)], a federal habeas court may grant the writ 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. Under the
“unreasonable application” clause [of §
2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(O'Connor, J., opinion of the Court for Part II).
“[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. Rather, that
application must also be unreasonable.” Id. at
thus imposes a ‘highly deferential standard for
evaluating state-court rulings, ' Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997), and
‘demands that state-court decisions be given the
benefit of the doubt, ' Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).”
Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on 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.” Id. at 103.
Claim One: Ineffective Assistance of Trial Counsel
alleges that his trial attorney deprived him of effective
assistance when the attorney conceded the elements of
third-degree criminal sexual conduct, but failed to request a
jury instruction on that offense.
established federal law here is Strickland v.
Washington, ” 466 U.S. 668 (1984). Cullen v.
Pinholster, 563 U.S. 170, 189 (2011). Under
Strickland, a defendant must show “that
counsel's performance was deficient” and
“that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687.
“Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in
the adversary process that renders the result
“deficient performance” prong of the
Strickland test “requires showing that counsel
made errors so serious that counsel was not functioning as
the ‘counsel' guaranteed the defendant by the Sixth
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged ...