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Simon v. Klee

United States District Court, E.D. Michigan, Southern Division

January 24, 2017

PAUL KLEE, Respondent.




         State 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.


         The 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).

         Petitioner 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.)

         Simon, 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.)

         Petitioner 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).

         On 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.)


         “The 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 merits

(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; or
(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 case.

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 411.

         “AEDPA 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.

         IV. ANALYSIS

         A. Claim One: Ineffective Assistance of Trial Counsel

         Petitioner 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.

         1. Legal Framework

         “[C]learly 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 unreliable.” Id.

         The “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 Amendment.” Id.

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 ...

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