Simmons v. Washington et al

Filing 6

OPINION and ORDER (1) Dismissing the Petition for Writ of Habeas Corpus Without Prejudice 1 , (2) Denying Motion for Immediate Consideration and Stay 3 , and Denying A Certificate of Appealability. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Latausha Simmons,
Petitioner,

Case Number: 24-cv-11454
Honorable Denise Page Hood

v.
Raphael Washington, et al.,
Respondent.
/
OPINION AND ORDER (1) DISMISSING THE PETITION
FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE (ECF 1),
(2) DENYING MOTION FOR IMMEDIATE CONSIDERATION AND
STAY (ECF 3), AND DENYING A CERTIFICATE OF APPEALABILITY
Latausha Simmons seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 and 2254. The Court dismisses the petition without prejudice because
consideration of the petition would interfere with ongoing state criminal
proceedings and because Simmons has not exhausted her state court remedies. The
Court denies Simmons’ “motion for immediate consideration for stay of state court
proceedings.” (ECF No. 3.) The Court also declines to issue a certificate of
appealability.
I. Background
Simmons has been charged in Wayne County Circuit Court with assault with
a dangerous weapon, Mich. Comp. Laws § 750.82. A review of the circuit court’s
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publicly available docket shows that a trial is scheduled for August 12, 2024, and
that Simmons is presently released on bond.
Simmons maintains that she is actually innocent of the charges and that her
rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments are
being violated.
II. Standard
Upon the filing of a habeas corpus petition, the Court must examine the
petition to determine “if it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules
Governing Section 2254 cases. If the Court determines that the petitioner is not
entitled to relief, the Court shall summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face”). The
Rules Governing Section 2254 cases may be applied at the discretion of the district
court judge to petitions not filed under § 2254. See Rule 1(b), Rules Governing
Section 2254 Cases.
III. Discussion
Simmons brings this petition under 28 U.S.C. §§ 2241 and 2254. Because
she has not been convicted of any crimes, her claims are appropriately reviewed
under the traditional habeas statute, 28 U.S.C. § 2241(c)(3), and not under 28
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U.S.C. § 2254. See Klein v. Leis, 548 F.3d 425, 430 n. 4 (6th Cir. 2008) (“Because
§ 2254 applies to those held ‘pursuant to the judgment of a State court ....’ 28
U.S.C. § 2254(b)(1) (emphasis added), a pretrial detainee ordinarily pursues
habeas relief under § 2241”).
Title 28 U.S.C. § 2241 “establishes jurisdiction in the federal courts to
consider pretrial habeas corpus petitions, [but] the courts should abstain from the
exercise of that jurisdiction if the issues raised in the petition may be resolved
either by trial on the merits in the state courts or by other state procedures available
to the petitioner.” Atkins v. People of State of Michigan, 644 F.2d 543, 546 (6th
Cir. 1981).

Federal courts should not interfere with pending state criminal

proceedings where (1) there is an ongoing state judicial proceeding; (2) the
proceeding implicates important state interests; and (3) the petitioner has an
adequate opportunity in the state proceeding to raise constitutional challenges. Hill
v. Snyder, 878 F.3d 193, 206 (6th Cir. 2017). The Sixth Circuit has recognized
three exceptions that permit a federal court to consider a pre-trial habeas petition:
the petitioner seeks a speedy trial and available state-court remedies have been
exhausted; the petitioner seeks to avoid a second trial on double jeopardy grounds;
and the petitioner faces prejudice from retrial based on ineffective assistance of
counsel. See Hill v. Welsh, No. 21-1759, 2022 WL 17493380, at *1 (6th Cir. June
24, 2022) (citing Atkins, 644 F.2d at 546; Delk v. Atkinson, 665 F.2d 90 (6th Cir.
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1981); and Turner v. Tennessee, 858 F.2d 1201, 1208-09 (6th Cir. 1988), vacated
on other grounds 492 U.S. 902 (1989)).
Here, the three conditions for abstention are present. First, Simmons has an
ongoing state criminal case pending in the Wayne County court. Second, state
court criminal proceedings “implicate the important state interests of interpreting
statutes and maintaining law and order within a state.” Folley v. Banks, No. 203554, 2020 WL 9813535, at *2 (6th Cir. Aug. 31, 2020). Third, state court
criminal proceedings provide an adequate opportunity for Simmons to raise her
constitutional challenges. Simmons has alleged no facts to show that she is or will
be unable to raise constitutional claims in the state court. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 16 (1987) (“[W]hen a litigant has not attempted to
present his federal claims in related state-court proceedings, a federal court should
assume that state procedures will afford an adequate remedy, in the absence of
unambiguous authority to the contrary.”). Finally, Simmons does not claim to face
prejudice from retrial arising from ineffective assistance of counsel. Abstention is
therefore appropriate in this case.
Additionally, and alternatively, Simmons fails to show that she has satisfied
the exhaustion requirement. A state prisoner must exhaust state court remedies
before seeking federal habeas relief. Atkins, 644 F.2d at 546. The exhaustion
requirement applies to petitions filed by defendants awaiting trial. Klein v. Leis,
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548 F.3d 425, 429 n.2 (6th Cir. 2008); see also Braden v. 30th Jud. Cir. Ct. of Ky.,
410 U.S. 484, 489-90 (1973) (finding that a § 2241 petitioner was entitled to raise
his habeas claim in part because he had “exhausted all available state remedies as a
prelude to this action”); Winburn v. Nagy, 956 F.3d 909, 913 (6th Cir. 2020)
(affirming denial of certificate of appealability for failure to exhaust). A habeas
petitioner bears the burden of proving the exhaustion of state court remedies. See
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Simmons claims she exhausted her claims by filing applications for leave to
appeal in the Michigan Court of Appeals and Michigan Supreme Court. She does
not identify the claims raised in her applications so she has not met her burden to
establish exhaustion for all the claims raised in her petition. In addition, she states
that the Michigan Supreme Court denied her application because the application
was “not ready to be heard at that state.” (ECF No. 1, PageID.65.) Presentation of
her claims to the state courts in a procedural context in which the merits were not
considered, cannot be considered fairly presented for exhaustion purposes. Castille
v. Peoples, 489 U.S. 346, 351 (1989).
In sum, Simmons fails to allege facts indicating that any of the exceptions to
the abstention doctrine apply here or that extraordinary circumstances warrant the
Court’s intervention in his state criminal case. Moreover, Simmons has not fairly

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presented her claims through one complete round of the state’s established review
process. This habeas action is therefore premature and must be dismissed.
IV. Motion for Stay
Simmons asks the Court to stay the state court criminal proceedings pursuant
to 28 U.S.C. § 2251 and asks the Court to grant immediate consideration to this
motion. A federal court lacks jurisdiction to issue a stay pursuant to 28 U.S.C. §
2251 when there is no habeas petition pending before that court. See Steffen v.
Tate, 39 F.3d 622, 625-26 (6th Cir. 1994). Because the Court is dismissing the
petition and closing this case, there is no habeas petition pending before this Court
that would provide it with jurisdiction to issue a stay. See, e.g., In re Hill, 437 F.3d
1080, 1084 (11th Cir. 2006) (court of appeals, having denied convicted capital
murder defendant’s application for leave to file second or successive habeas
petition as untimely, could not entertain defendant’s application for stay of
execution; court’s jurisdiction ended with denial of the application).
V. Certificate of Appealability
Before Simmons may appeal the Court’s decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b); see
also Winburn v. Nagy, 956 F.3d 909, 911-912 (6th Cir. 2020) (holding that a state
pre-trial detainee must obtain a certificate of appealability to appeal the denial of a
§ 2241 habeas petition). A certificate of appealability may issue only if a habeas
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petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the court's assessment of the constitutional claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on
procedural grounds, a certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the petitioner states a valid claim
of the denial of a constitutional right, and that jurists of reason would find it
debatable whether the court was correct in its procedural ruling. Id. Simmons
makes no such showing. Reasonable jurists would not find the Court’s holding
debatable. A certificate of appealability is denied.
The Court grants Simmons leave to appeal in forma pauperis because an
appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a)(3)(A).
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

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IT IS FURTHER ORDERED that Petitioner’s motion for immediate
consideration and for stay of state court proceeding (ECF No. 3) is DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal if she chooses to appeal this decision. 28 U.S.C. § 1915(a)(3).

s/Denise Page Hood
DENISE PAGE HOOD
United States District Judge
Dated: August 30, 2024

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