Simmons v. Berghuis

Filing 25

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY D. SIMMONS,
Case Number: 2:07-CV-13216

Petitioner,
v.

HONORABLE LAWRENCE P. ZATKOFF

MARY BERGHUIS,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPPEALABILITY
This matter is before the Court on Anthony D. Simmons’ pro se petition for a writ of habeas
corpus. Petitioner, currently incarcerated at the Pugsley Correctional Facility in Kingsley, Michigan,
challenges his convictions for armed robbery, fourth-degree fleeing and eluding, resisting and
obstructing a police officer, and felony firearm on the following grounds: (i) sufficiency of the
evidence; (ii) identification procedures; and (iii) prosecutorial misconduct. The Court denies habeas
relief and denies a certificate of appealability.
I. Background
Petitioner’s convictions arise from the robbery of Jerome Wilson on December 11, 2003.
Wilson, a truck driver, testified that, on that date, at approximately 7:45 p.m., he was in a parking
lot in Warren, Michigan, tending to a truck assigned to him. He had been in the parking lot for about
twenty minutes when a white sedan pulled into the parking lot, circled, and then parked next to his
truck. The man, who he identified as Petitioner, exited the vehicle, approached Wilson, held a gun
to Wilson’s head and demanded his money and phone. Petitioner threatened to shoot Wilson.

Wilson gave Petitioner his wallet and a company cell phone. Petitioner reentered his vehicle and
left the parking lot. As Petitioner left the parking lot, Wilson dialed 911 and told the dispatcher
which way Petitioner had driven.
Cortland Larry testified that he was a police officer with the Warren Police Department. He
was working the night of the robbery. He and his partner heard the radio dispatch regarding the
robbery and responded to the area where the suspect’s vehicle had last been seen. Officer Larry
noticed a vehicle stopped at a red light that matched the description of the perpetrator’s vehicle. He
pulled up alongside the vehicle and noted that the driver fit the description of the perpetrator. When
the light turned green, Officer Larry pulled the patrol car behind the suspect’s vehicle and activated
his lights. The suspect did not stop. The pursuit, aided by a police helicopter, continued for some
time. Eventually, the suspect stopped his vehicle and fled on foot. With the aid of information from
the police helicopter, Officer Larry and his partner chased the suspect. Ultimately, Officer Larry
and his partner found Petitioner hiding underneath a garbage can and apprehended him.
Officer Larry testified that the route Petitioner had taken when fleeing on foot was searched
for a gun and Wilson’s wallet. Neither item was located on that route or in Petitioner’s vehicle.
Petitioner presented no witnesses in his defense.
II. Procedural History
Petitioner was tried before a jury in Macomb County Circuit Court. He was convicted of
armed robbery, felonious assault, carrying or possessing a firearm during the commission of a
felony, failure to stop at the signal of a police officer (fleeing and eluding) in the fourth degree, and
assaulting, resisting and obstructing a police officer in the course of duty. On October 20, 2004, he
was sentenced to 8 to 20 years in prison for armed robbery, 1 to 4 years in prison for felonious

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assault, 1 to 2 years for both fleeing and eluding and resisting and obstructing a police officer, all
to be served concurrently with one another and consecutively to two years in prison for the felony
firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised these claims:
I.

Appellant’s convictions and sentences for both armed robbery and felonious assault
constitute double jeopardy.

II.

The evidence at trial was insufficient to convict appellant of felony firearm.

The Michigan Court of Appeals vacated Petitioner’s conviction for felonious assault and
affirmed his convictions in all other respects. People v. Simmons, No. 258964 (Mich. Ct. App.
March 16, 2006).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised
the same sufficiency of the evidence claim raised in the Michigan Court of Appeals and these
additional claims:
I.

Identification.

II.

Ineffective trial counsel.

The Michigan Supreme Court denied leave to appeal. People v. Simmons, 476 Mich. 860
(Mich. July 31, 2006).
Petitioner filed a petition for writ of habeas corpus in this Court. He raised a single
sufficiency of the evidence claim. He then sought a stay in this Court to allow him to exhaust
additional, unexhausted claims in state court. The Court granted the stay. After exhausting his state
court remedies, Petitioner returned to federal court requesting that the habeas proceeding be
reopened and filed an amended petition. The Court reopened the proceedings and directed
Respondent to file an answer to the amended petition which raised these claims:
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I.

Insufficient evidence to convict of felony firearm.

II.

Defendant was deprived of his Fifth and Fourteenth Amendment rights to due
process of law by becoming the victim of a suggestive identification.

III.

Defendant’s due process of law was violated when the prosecutor engaged in
improper argument.
III. Standard

Petitioner’s claims are reviewed against the standards established by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA
provides:
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; 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 proceedings.
28 U.S.C. § 2254(d).
“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 v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable
application’ prong of the statute permits a federal habeas court to ‘grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies

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that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413). “In order for a federal court find a state court’s application of [Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539
U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.

“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, __ U.S. __,
131 S. Ct. 770, 789 (2011), (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Section
2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a
condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court 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 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the
state court’s decision comports with clearly established federal law as determined by the Supreme
Court at the time the state court renders its decision. See Williams, 529 U.S. at 412.

Section

2254(d) “does not require citation of [Supreme Court] cases – indeed, it does not even require
awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of
‘clearly established law’ are to be determined solely by resort to Supreme Court rulings, the
decisions of lower federal courts may be instructive in assessing the reasonableness of a state court’s

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resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), (citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D.
Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. Discussion
A. Sufficiency of the Evidence
First, Petitioner argues that insufficient evidence was presented to sustain his conviction for
felony firearm.
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). On direct review, review of a sufficiency of the evidence
challenge must focus on whether “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the
habeas context, “[t]he Jackson standard must be applied ‘with explicit reference to the substantive
elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th
Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
“Two layers of deference apply to habeas claims challenging evidentiary sufficiency.”
McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05
(6th Cir. 2009)). First, the Court “must determine whether, viewing the trial testimony and exhibits

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in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Brown, 567 F.3d at 205, (citing Jackson, 443
U.S. at 319). Second, if the Court were “to conclude that a rational trier of fact could not have found
a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the
state appellate court’s sufficiency determination as long as it is not unreasonable.” Id. “A reviewing
court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor
has been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003),
(citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). “A reviewing court ‘faced with a record
of historical facts that supports conflicting inferences must presume – even if it does not
affirmatively appear in the record – that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” McDaniel v. Brown, __ U.S. __, 130 S. Ct. 665, 674
(2010), (quoting Jackson, 443 U.S. at 326).
Under Michigan law, the elements of felony firearm are that the defendant possessed a
firearm during the commission of, or the attempt to commit, a felony. See Mich. Comp. Laws §
750.227b; People v. Akins, 259 Mich. App. 545, 554, 675 N.W.2d 863 (2003). Circumstantial
evidence and reasonable inferences from such evidence can constitute satisfactory proof of the
elements of the crime. See People v. Carines, 460 Mich. 750, 757, 597 N.W.2d 130 (1999).
The Michigan Court of Appeals, although not specifically citing Jackson, clearly applied the
Jackson standard and held that sufficient evidence was presented to sustain Petitioner’s conviction.
The Michigan Court of Appeals cited Jerome Wilson’s testimony that Petitioner had a gun,
threatened to shoot him, and took his wallet and phone. In addition, Wilson had some familiarity
with guns and was able to describe the gun with specificity. The Michigan Court of Appeals held

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that the failure to recover a gun from Petitioner or along the chase route did not render the evidence
insufficient to support his conviction because the chase was long and proceeded between buildings
and through a cluttered alley, making it possible that the gun was overlooked.
Considered in the light most favorable to the prosecution, the evidence presented at trial and
highlighted by the Michigan Court of Appeals clearly supported a finding that the prosecutor
established beyond a reasonable doubt that Petitioner possessed a firearm during the commission
of a felony. Therefore, the Court finds that the state court’s holding was not contrary to or an
unreasonable application of Supreme Court precedent.
B. Procedural Default
Respondent argues that Petitioner’s second and third habeas claims, regarding identification
procedures and prosecutorial misconduct, are procedurally defaulted. Federal habeas relief is
precluded on claims that a petitioner has not presented to the state courts in accordance with the
state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of
procedural default is applicable when a petitioner fails to comply with a state procedural rule, the
rule is actually relied upon by the state courts, and the procedural rule is “adequate and
independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard,
405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last
explained state court judgment should be used to make this determination. See Ylst v. Nunnemaker,
501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is
presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Petitioner’s claim that the prosecutor knowingly presented false testimony was raised for the
first time on state court collateral review. The Michigan Supreme Court denied relief pursuant to

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Michigan Court Rule 6.508(D), which provides, in part, that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief which could have been
raised on direct appeal, absent a showing of good cause for the failure to raise such grounds
previously and actual prejudice resulting therefrom. See Mich. Ct. R. 6.508(D)(3). The United
States Court of Appeals for the Sixth Circuit recently has held that the form order used by the
Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation to
Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a
rejection on the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must “look through” the unexplained order of the
Michigan Supreme Court to the state trial court’s decision to determine the basis for the denial of
state post-conviction relief.
The state trial court clearly denied relief on procedural grounds. The trial court cited
Michigan Court Rule 6.508(D)(3) and concluded that Petitioner did not establish good cause for
failing to raise these claims on direct review. A state prisoner who fails to comply with a state’s
procedural rules waives the right to federal habeas review absent a showing of cause for
noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing
of a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991);
Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.
1996).
Petitioner does not assert any cause for his procedural default of these claims. Petitioner’s
failure to allege cause prevents federal review of his habeas claims unless the failure to do so will
result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The Supreme Court

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explicitly ties the miscarriage of justice exception to procedural default to a petitioner’s innocence.
Schlup v. Delo, 513 U.S. 298, 321 (1995). A valid claim of actual innocence requires a petitioner
“to support his allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence – that
was not presented at trial.” Id. at 324. “The Schlup standard is demanding and permits review only
in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (citation omitted). A court
presented with new evidence must consider it in light of “all the evidence, old and new,
incriminating and exculpatory, without regard to whether it would necessarily be admitted under
rules of admissibility that would govern at trial.” Id. at 538 (citation omitted). “Based on this total
record, the court must make ‘a probabilistic determination about what reasonable, properly
instructed jurors would do.’” Id. (quoting Schlup, 513 U.S. at 329). Petitioner fails to present any
new, reliable evidence in support of his habeas petition and does not assert a claim of actual
innocence. Therefore, these claims are procedurally barred.
V. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a
certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing
Section 2254 Proceedings now requires that the Court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed

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further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). In this case, the Court
concludes that reasonable jurists would not debate the conclusion that the petition fails to state a
claim upon which habeas corpus relief should be granted. Therefore, the Court will deny a
certificate of appealability.
VI. Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and
the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: February 8, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on February 8, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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