Simmons v. Warren

Filing 11

OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus and Declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LATOYA SIMMONS,
Petitioner,
CASE NO. 2:13-CV-12531
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
MILLICENT WARREN,
Respondent.
___________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Latoya Simmons, (“petitioner”), confined at the Huron Valley Women’s
Correctional Facility in Ypsilanti, Michigan, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In her pro se application, petitioner challenges
her conviction for armed robbery, M.CL.A. 750.529; and possession of a firearm in the
commission of a felony [felony-firearm], M.C.L.A. 750.227b. For the reasons stated
below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court, in which she was tried jointly with co-defendant Nathaniel Pitts.
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):
Defendants’ convictions arise from the robbery of Thomas Rea, who was
robbed after he arrived at a house to meet a woman he had met on a
telephone “chat line.” Rea stated that after he arrived at the house, he was

-1-

locked inside by the woman, whom Rea identified as defendant Simmons,
after which the woman locked a security gate at the front door. Thereafter,
two men emerged from a room, one armed with a handgun and the other
armed with a metal bar. Rea identified defendant Pitts as the man with the
gun. The men robbed Rea of his money and then allowed him to leave.
People v. Simmons, No. 301661, * 1-2 (Mich.Ct.App. May 8, 2012). 1
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 493 Mich. 917, 823
N.W.2d 578 (2012).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court had no authority to reject appellant’s plea and sentence
agreement merely because the written agreement contained a scrivener error
as to the case number in the alternative, rejection of the plea agreement was
an abuse of discretion.
II. The prosecution presented insufficient evidence to convict appellant for
armed robbery and felony firearm.
II. Standard of Review
28 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

1

The Court notes that although respondent provided this Court with the state appellate court
record from the Michigan Court of Appeals and the Michigan Supreme Court, respondent failed to provide
this Court with the trial transcripts. However, on habeas review, a district court need not examine the trial
records if two conditions are satisfied: (1) the state court opinions summarize the trial testimony or relevant
facts; and (2) the petitioner does not quarrel with that summary and instead contends only that the trier of
fact should have reached a different conclusion. See Clark v. Waller, 490 F. 3d 551, 556 (6th Cir. 2007).
Petitioner has attached to her petition a copy of petitioner’s brief on appeal that was submitted to the
Michigan Court of Appeals on petitioner’s direct appeal, which extensively recites the facts of the case.
Respondent has also provided the Court with a copy of this brief in the Rule 5 materials. This Court is
willing to incorporate the arguments raised in petitioner’s state appellate court brief as being part of
petitioner’s application for writ of habeas corpus. See e.g. Burns v. Lafler, 328 F. Supp. 2d 711, 717, n. 2.
(E.D. Mich. 2004). Because the Michigan Court of Appeals summarized the facts from this case and
petitioner does not challenge the facts of this case but only their legal significance, it is unnecessary for
the Court to review the trial transcripts. See also David v. Lavinge, 190 F. Supp. 2d 974, 986, n. 5 (E.D.
Mich. 2002)(court quoted the lengthy state court analysis in full because the analysis thoroughly explained
petitioner’s claim and because portions of the trial transcript quoted by the state court were missing from
the record before the court).

-2-

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; 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.
A 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, 40506 (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.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766,
773 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s determination that a

-3-

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, 131 S.
Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. Id. Habeas relief is not appropriate unless each ground
which supported the state court’s decision is examined and found to be unreasonable
under the AEDPA. See Wetzel v. Lambert, 132 S. Ct. 1195, 1199 (2012).
III. Discussion
A. Claim # 1. The trial court’s rejection of petitioner’s plea agreement.
Petitioner first claims that the state trial judge improperly refused to accept a pretrial plea agreement that had been entered into between herself and the prosecution, in
which petitioner would plead guilty to the armed robbery and felony-firearm charges, in
exchange for dismissal of a pending case which involved similar allegations, as well as
an agreement that petitioner would receive a minimum sentence of fifty one months on
the armed robbery charge. Petitioner contends that the judge violated the provisions of
M.C.R. 6.302, which do not require the consent of the judge to a plea of guilty.
Petitioner further argues that the judge violated the separation of powers between the

-4-

different branches of state government because the decision to charge persons with
criminal offenses is vested solely in the various prosecutor’s offices.
The Michigan Court of Appeals rejected petitioner’s claim:
While defendant Simmons argues that the exclusive authority for charging a
defendant is with the prosecutor, the trial court here did not infringe on that
authority. The court’s refusal to accept a plea from defendant Simmons was
not based on any disagreement with the prosecutor’s charging authority, but
rather the discrepancies in the parties’ understanding of the terms of the plea
agreement, particularly those concerning which case would proceed with
defendant Simmons’s guilty plea and which case would be dismissed. The
trial court properly exercised its discretion by refusing to accept defendant
Simmons’s guilty plea when the parties had not fully agreed on all terms of
the plea agreement.
Moreover, defendant Simmons was not foreclosed from subsequently
entering into a plea agreement on terms agreeable to all parties. The trial
court never indicated that it would not accept a plea. It merely directed the
parties to leave the courtroom “until you have everything straight.” Defendant
Simmons’s attorney later advised the trial court that defendant Simmons no
longer wanted to enter a guilty plea, and instead wanted to go to trial. For
these reasons, there is no merit in defendant Simmons’s argument that the
trial court improperly refused to accept her guilty plea.
Simmons, Slip. Op. at * 4.
Petitioner is not entitled to habeas relief for several reasons. First, there is no
constitutional right to plea bargain. See Weatherford v. Bursey, 429 U.S. 545, 561
(1977). “It is a novel argument that constitutional rights are infringed by trying the
defendant rather than accepting his plea of guilty.”Id. A criminal defendant thus has no
right to plead guilty nor a federal right that the judge accept a guilty plea. Missouri v.
Frye, 132 S. Ct. 1399, 1410 (2012). The trial court’s alleged refusal to accept
petitioner’s guilty plea thus cannot serve as the basis for federal habeas relief. See
Ringstaff v. Mintzes, 539 F. Supp. 1124, 1127-28 (E.D. Mich. 1982).
Secondly, to the extent that petitioner alleges that the trial judge violated the

-5-

provisions of M.C.R. 6.302, she would not be entitled to relief. The Supreme Court has
held that “‘federal habeas corpus review does not lie for errors of state law.’ ” Estelle v.
McGuire, 502 U.S. 62, 67 (1991)(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Petitioner’s claim that the trial judge violated the provisions of M.C.R. 6.302 in refusing
to accept her guilty plea is non-cognizable on federal habeas review. See e.g. Watkins
v. Lafler, 517 Fed. Appx. 488, 500 (6th Cir. 2013); cert. den. sub nom Watkins v.
MacLaren, 134 S. Ct. 210 (2013); reh. den. 134 S. Ct. 816 (2013).
Petitioner’s related allegation that the legislative process violated the separation
of powers between branches of state government is not cognizable on habeas review
because it raises an issue of state law. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.
2000). Furthermore, state officials are not required to follow their own procedural
statutes and rules as a matter of federal due process. Sweeton v. Brown, 27 F. 3d 1162,
1165 (6th Cir. 1994)(en banc). In addition, a habeas petitioner is not entitled to habeas
relief based upon an alleged violation of the Michigan Constitution. See Hudson v.
Berghuis, 174 Fed. Appx. 948, 952, n. 1 (6th Cir. 2006).
Finally, as the Michigan Court of Appeals noted in rejecting petitioner’s claim, the
trial judge never stated that he would refuse to accept a guilty plea from petitioner, but
merely asked the parties to straighten out the details of the plea agreement. When the
parties returned to the court for trial, petitioner’s counsel indicated that she was no
longer willing to plead guilty. Petitioner’s first claim is thus non-cognizable and without
merit.
B. Claim # 2. The sufficiency of evidence.

-6-

Petitioner next contends that there was insufficient evidence presented to sustain
her convictions for armed robbery and felony-firearm. Petitioner contends that the
evidence at best establishes that she was merely present when co-defendant Pitts and
another man robbed the victim at gunpoint.
The Michigan Court of Appeals rejected petitioner’s claim:
We disagree with defendant Simmons’s argument that the evidence failed to
show that she aided and abetted the commission of the crimes. The
evidence showed that defendant Simmons assisted in the commission of the
offenses by inviting the victim to the house where he was robbed while
knowing that at least one of her accomplices was armed with a gun. The
victim described defendant Simmons as very friendly and the house as very
inviting, with lighted candles inside, which caused him to let his guard down.
After the victim entered the house, defendant Simmons locked the security
door to the house, thereby preventing the victim from leaving or escaping.
The fact that two armed men were present inside defendant Simmons’s
house, which was secured with a security gate, and that the men emerged
from a room and confronted the victim only after defendant Simmons lured
the victim inside and locked the security gate, supports an inference that
defendant Simmons was working in association with the two armed men and
that defendant Simmons assisted in the offenses by luring the victim to the
secluded location and preventing his escape. We conclude that the evidence
was sufficient to support defendant Simmons’s convictions of armed robbery
and felony-firearm on an aiding and abetting theory.
Simmons, Slip. Op. at * 5 (internal footnote omitted).
It is beyond question that “the 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). But the critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction is, “whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979).
This inquiry, however, does not require a court to “ask itself whether it believes that the

-7-

evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant
question is 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. Id. at 318-19(internal citation and footnote
omitted)(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court decision
that rejects a sufficiency of the evidence claim simply because the federal court
disagrees with the state court’s resolution of that claim. Instead, a federal court may
grant habeas relief only if the state court decision was an objectively unreasonable
application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011).
“Because rational people can sometimes disagree, the inevitable consequence of this
settled law is that judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.” Id. In fact, the Jackson standard “is
so demanding that ‘[a] defendant who challenges the sufficiency of the evidence to
sustain his conviction faces a nearly insurmountable hurdle.’” Davis v. Lafler, 658 F. 3d
525, 534 (6th Cir. 2011)(quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir.
2009)(internal quotation marks omitted)). Therefore, for a federal habeas court
reviewing the sufficiency of evidence for a state court conviction, “the only question
under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
The elements of armed robbery under Michigan law are: (1) an assault, and (2) a
felonious taking of property from the victim’s presence or person, (3) while the
defendant is armed with a weapon. See O'Guin v. Foltz, 715 F. 2d 397, 400 (6th Cir.

-8-

1983).
The elements of felony-firearm are that the defendant possessed a firearm while
committing, or while attempting to commit, a felony offense. See Parker v. Renico, 506
F. 3d 444, 448 (6th Cir. 2007).
Petitioner does not contest the elements of the charged offenses but argues that
there was insufficient evidence to convict her of aiding and abetting her co-defendant
and another man in the commission of these crimes.
To support a finding under Michigan law that a defendant aided and abetted in
the commission of a crime, the prosecutor must show that:
1. the crime charged was committed by the defendant or some other
person;
2. the defendant performed acts or gave encouragement that assisted the
commission of the crime; and
3. the defendant intended the commission of the crime or had knowledge
that the principal intended its commission at the time he gave aid and
encouragement.
Riley v. Berghuis, 481 F. 3d 315, 322 (6th Cir. 2007)(citing People v. Carines,
460 Mich. 750, 757-58; 597 N.W. 2d 130 (1999)).
In order to be guilty of aiding and abetting under Michigan law, the accused must
take some conscious action designed to make the criminal venture succeed. See Fuller
v. Anderson, 662 F. 2d 420, 424 (6th Cir. 1981). Aiding and abetting describes all forms
of assistance rendered to the perpetrator of the crime and comprehends all words or
deeds which might support, encourage, or incite the commission of the crime. People v.
Turner, 213 Mich. App. 558, 568; 540 N. W. 2d 728 (1995). The quantum or amount of
aid, advice, encouragement, or counsel rendered, or the time of rendering, is not
material if it had the effect of inducing the commission of the crime. People v. Lawton;

-9-

196 Mich. App. 341, 352; 492 N. W. 2d 810 (1992).
To be convicted of aiding and abetting, the defendant must either possess the
required intent to commit the crime or have participated while knowing that the principal
had the requisite intent; such intent may be inferred from circumstantial evidence. See
Long v. Stovall, 450 F. Supp. 2d 746, 753 (E.D. Mich. 2006); People v. Wilson, 196
Mich. App. 604, 614; 493 N. W. 2d 471 (1992). The intent of an aider and abettor is
satisfied by proof that he knew the principal’s intent when he gave aid or assistance to
the principal. People v. McCray, 210 Mich. App. 9, 14; 533 N. W. 2d 359 (1995). An
aider and abettor’s state of mind may be inferred from all of the facts and
circumstances, including close association between the defendant and the principal, the
defendant’s participation in the planning and execution of the crime, and evidence of
flight after the crime. Turner, 213 Mich. App. at 568-69.
Mere presence, even with knowledge that a crime is being committed, is
insufficient to establish that a defendant aided and abetted in the commission of the
offense. People v. Norris, 236 Mich. App. 411, 419-20; 600 N. W. 2d 658 (1999); Fuller
v. Anderson, 662 F. 2d at 424. “[H]owever, a claim of mere presence is not a ‘catch-all
excuse’ to defeat an inference of guilt beyond a reasonable doubt. In evaluating a
‘mere presence’ defense, a factfinder must distinguish, based upon the totality of the
circumstances, between one who is merely present at the scene and one who is
present with criminal culpability.” See Long v. Stovall, 450 F. Supp. at 754 (internal
citation omitted). An aider and abettor who is intentionally present during the
commission of a crime may be silent during the crime’s commission, “but by his
demeanor, or through behavior and acts not directly related to the crime, provide ‘moral

-10-

support’ that is recognizable to, and relied upon by, the principal. Such acts may be
silent and may not be overt but may still amount to more than ‘mere’ presence.” Sanford
v. Yukins, 288 F. 3d 855, 862 (6th Cir. 2002). Michigan’s “broad definition” of aiding
and abetting “easily encompasses situations where the alleged aider and abettor,
although silent and not committing acts directly related to the crime, was not ‘merely’
present, but providing emotional encouragement and support.” Id.
The evidence in this case, when viewed in a light most favorable to the
prosecution, was sufficient for a rational trier of fact to conclude that petitioner aided and
abetted her co-defendant Pitts and the other man in the robbery of the victim. The
evidence showed that petitioner invited the victim to her house after the two had met on
a telephone chat line. When the victim arrived at the house, petitioner acted very
friendly and had lit candles, which caused the victim to let his guard down. After the
victim entered the house, petitioner locked the security door to the house, which
prevented the victim from escaping. The fact that two armed men were already inside
of petitioner’s house, which had been secured with a security gate, and that these men
came out of a room inside of petitioner’s house and robbed the victim at gunpoint only
after petitioner had invited the victim inside and locked the security gate, supported an
inference that petitioner was not merely present when the other men robbed the victim
at gunpoint. Instead, this evidence clearly supports an inference that petitioner aided
and abetted Pitts and the other man in the armed robbery by luring the victim to her
house while knowing that Pitts and another man were armed with weapons and
preparing to rob him and by locking the victim into the house so that he could not
escape.

-11-

In light of the evidence presented in this case, the Michigan Court of Appeals did
not unreasonably apply clearly established federal law in determining that the evidence
was sufficient to convict petitioner of armed robbery and felony-firearm on an aiding and
abetting theory. See Brown v. Konteh, 567 F. 3d 191, 209-12 (6th Cir. 2009). In
particular, when petitioner’s case is reviewed pursuant to the AEDPA’s “double
deference” standard, this Court is unable to state that the Michigan Court of Appeals’
decision that there was sufficient evidence to convict petitioner under an aiding and
abetting theory was“so far out of line with the very general standard set forth in Jackson
v. Virginia as to warrant granting [petitioner] habeas relief.” Davis v. Lafler, 658 F. 3d at
535. Petitioner is not entitled to relief on her second claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also
deny a certificate of appealability to petitioner. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims to be debatable or wrong. Id.
at 484. “The district court must issue or deny a certificate of appealability when it enters

-12-

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28
U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a certificate
of appealability because she has failed to make a substantial showing of the denial of a
federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because
the appeal would be frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas
Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
Dated: March 6, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 6, 2014, by electronic and/or ordinary mail and also on
Latoya Simmons #786947, Huron Valley Complex - Womens
3201 Bemis Road, Ypsilanti, MI 48197.
s/Barbara Radke
Deputy Clerk

-13-