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Simmons v. Huss

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

April 18, 2019

RECO N. SIMMONS, Petitioner,
v.
ERICA HUSS, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          HON. GEORGE CARAM STEEH, JUDGE

         Reco N. Simmons, (“Petitioner”), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of second-degree murder, Mich. Comp. Laws § 750.317, armed robbery, Mich. Comp. Laws § 750.529, first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and possession of a firearm during the commission of a felony. Mich. Comp. Laws § 750.227b. Petitioner was sentenced to a term of 450 months to 80 years for the murder conviction to be served consecutively to a term of 140 months to 20 years for the home invasion conviction and a 2-year term for the firearm conviction. Petitioner was sentenced to a concurrent term of 285 months to 50 years for the armed robbery conviction.

         The petition raises one claim: Petitioner was denied the effective assistance of counsel when his trial attorney conceded during closing argument that Petitioner was guilty of second-degree murder. The Court will deny the petition because the Michigan Court of Appeals reasonably rejected the claim on the merits during Petitioner's direct appeal. The Court will also deny Petitioner a certificate of appealability, but it will grant permission to appeal in forma pauperis.

         I. Background

         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):

On August 8, 2012, Michael Montgomery (Montgomery) concocted a plan to rob the home of Melissa Villneff (Melissa). He enlisted the help of Reco and Aquire. These two sought out four additional men to help: Fredrick, Michael Evans (Evans), Felando Hunter (Felando), and Brandon Crawford (Brandon). That evening, Evans drove the group in his Explorer to Melissa's home. When the group first arrived, they noticed a group of young children playing outside, and decided against going forward with their plan at that time. But a short time later, armed with an SK assault rifle, revolvers, and a baseball bat, the men executed their plan.
Evans stayed behind as the getaway driver. Montgomery, who knew that Patrick Villneff was at the house, lured him away by going for a walk with him and Patrick's dog. Fredrick, Felando, Reco, and Aquire entered the house. Apparently to their surprise, Terrance Villneff (Terrance) was inside, playing a video game. One of the men struck him in the face. Armed with the rifle, Felando ordered Terrance to a bedroom in the back of the house. There, Aquire beat him with the baseball bat at Felando's direction. The other men searched the home. Eventually, the men left. But as they did, they noticed that Melissa's father and next-door neighbor, John Villneff, was standing on his porch and calling 911. John had been alerted to the robbery by one of the children, who had seen the men enter Melissa's home. Reco fired a few shots from his revolver toward John, and Felando fired several more with the assault rifle. John was struck by one of these bullets and died shortly after.

People v. Simmons, 2016 WL 1039553, at *1 (Mich. Ct. App. Mar. 14, 2016).

         Following his conviction Petitioner filed a claim of appeal in the Michigan Court of Appeals. His brief on appeal raised one claim:

I. Mr. Simmons was denied his constitutionally guaranteed rights to the effective assistance of counsel under the Sixth Amendment and Const. 1963, art. 1, § 20, where counsel- without notice to Mr. Simmons-expressly admitted guilt.

         The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Id. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim that he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the question presented should be reviewed. People v. Simmons, 891 N.W.2d 865 (Mich. 2017) (Table).

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'” Mitchell ...


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