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
H. CLELAND UNITED STATES DISTRICT JUDGE.
Lee Simms, (“Petitioner”), incarcerated at the
Oaks Correctional Facility in Manistee, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, Petitioner
challenges his conviction for second-degree murder. Mich.
Comp. Laws § 750.317. For the reasons that follow, the
petition is DENIED WITH PREJUDICE.
was originally charged with open murder,  attempted
first-degree home invasion, assault with a dangerous weapon,
and possession of a firearm in the commission of a felony.
Petitioner was found guilty of the lesser included offense of
second-degree murder following a jury trial in the Wayne
County Circuit Court.
Court recites verbatim the Michigan Court of Appeals'
factual summary of the case, since it is 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.
Defendant's conviction arises from his participation in
the fatal shooting of Ernest Tye in Tye's Detroit home on
December 10, 2015. The principal issue at trial was
defendant's identity as a participant in the crime. The
prosecution presented evidence that defendant and two
associates, Lawrence Stafford and Travone Wilson, went to the
duplex where Tye lived and that defendant acted as a lookout
while Stafford and Wilson entered Tye's upstairs unit
where Stafford shot Tye. Henric Hayes, who lived in the
downstairs unit, testified that Stafford had asked him
earlier that day about Tye's whereabouts. Later that day,
Hayes and Tye socialized together in Hayes's unit before
Tye went upstairs. Hayes subsequently heard noises
originating from the stairwell that caused him to open his
door. Hayes saw defendant, who was armed with a
nine-millimeter handgun, standing in the foyer and looking up
the stairs. Defendant turned his gun toward Hayes, who
slammed his door. Soon thereafter, Hayes heard gunshots.
Charles Deen, who was at the house next door to the duplex,
testified to observing defendant standing outside the duplex
and later seeing three men running from the duplex. Mark
Eddins testified that, around the same time, he observed
defendant and two other men running from the area of the
duplex toward a vacant house that the three men regularly
frequented. The defense theory at trial was
misidentification. Defendant testified that he was at a
different location at the time of the shooting, and the
defense asserted that defendant's alibi defense was
supported by a time-stamped Facebook post and evidence that
defendant was excluded as a contributor to any DNA found at
the crime scene.
People v. Simms, No. 333198, 2017 WL 4938372, at *1
(Mich. Ct. App. Oct. 31, 2017).
conviction was affirmed. Id., appeal
denied, 501 Mich. 1061, 910 N.W.2d 286 (2018).
seeks a writ of habeas corpus on the following grounds:
I. [Simms'] Fifth and Fourteenth Amendment rights to due
process were violated when he was convicted of second-degree
murder because there was insufficient evidence to support the
requisite elements of the second-degree murder conviction;
II. [Simms] was denied his Fifth and Fourteenth Amendment
rights to effective assistance of counsel at sentencing when
trial counsel failed to object to the trial court's
erroneous assessment of fifty points for offense variable
[(“OV”)] 3, physical injury to victim, where the
proper assessment of points for a homicide offense for
offense variable 3 is twenty-five points.
(ECF No. 1, PageID.12, 24.)
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