Simmons v. Moore et al

Filing 6

OPINION and ORDER (1) Dismissing the 1 Petition for Writ of Habeas Corpus without Prejudice, (2) Denying the 3 Motion to Stay, (3) Denying a Certificate of Appealability, and (4) Denying Leave to Appeal in forma pauperis. Signed by District Judge Robert J. White. (TVil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LA TAUSHA SIMMONS,
Petitioner,
v.

Case No. 24-cv-11609
Honorable Robert J. White

MICHAEL MOORE and
CITY OF ROYAL OAK,
Respondents.

OPINION AND ORDER (1) DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS WITHOUT PREJUDICE, (2) DENYING THE
MOTION TO STAY, (3) DENYING A CERTIFICATE OF
APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA
PAUPERIS
I.

Introduction
La Tausha Simmons seeks a writ of habeas corpus pursuant to 28 U.S.C. §§

2241 and 2254. (ECF No. 1). 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 also denies Simmons’s motion to stay these proceedings. (ECF No. 3).
Lastly, the Court declines to issue a certificate of appealability and denies leave to
appeal in forma pauperis.

II.

Background
Publicly available records for Michigan’s 44th District Court indicate that

Simmons is facing three misdemeanor charges for one count of interfering with a
police officer and two counts of obstructing a police officer.

Simmons was

released on bond at the time the petition was filed.1
Simmons alleges that the arresting officer violated her First and Fifth
Amendment rights, she is actually innocent of any charges, the prosecutor is
withholding exculpatory evidence, and she is being denied the effective assistance
of counsel from her court-appointed attorney. (ECF No. 1). The habeas petition
and motion to stay seek an order halting Simmons’ state court proceedings. (ECF
No. 1, PageID.60; ECF No. 3).
III.

Legal Standards
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 must summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
Simmons is “in custody” for habeas corpus purposes even though she is presently
on bond. See Malinovsky v. Court of Common Pleas of Lorain County, 7 F.3d 1263,
1265 (6th Cir. 2003).
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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
judge to petitions not filed under § 2254. See Rule 1(b), Rules Governing Section
2254 Cases.
IV.

Analysis
Simmons filed 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 28 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. . . . a pretrial detainee
ordinarily pursues habeas relief under § 2241.”) (emphasis in original) (cleaned
up).
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); Younger v. Harris, 401 U.S. 37, 46 (1971). Under the Younger abstention
doctrine, federal courts should not interfere with pending state criminal
proceedings where (1) there is an ongoing state judicial proceeding; (2) the
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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: (1) the petitioner seeks a speedy trial and
available state-court remedies have been exhausted, (2) the petitioner seeks to
avoid a second trial on double jeopardy grounds, and (3) the petitioner faces
prejudice from retrial based on ineffective assistance of counsel. See Hill v. Welsh,
No. 21-1759, 2022 U.S. App. LEXIS 17608, at *2-3 (6th Cir. June 24, 2022)
(citations omitted).
The three conditions for abstention are present here.

Simmons has an

ongoing state criminal case pending in the 44th District Court. The 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 U.S. App. LEXIS 27784, at *5 (6th Cir. Aug. 31, 2020). And the state
court criminal proceedings provide an adequate opportunity for Simmons to raise
her constitutional challenges. In this last respect, Simmons alleges no facts to
showing that she is or will be precluded from raising her constitutional claims in
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
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proceedings, a federal court should assume that state procedures will afford an
adequate remedy, in the absence of unambiguous authority to the contrary.”). Nor
does she seek a speedier trial, the avoidance of double jeopardy, or appear to face
prejudice from retrial arising from ineffective assistance of counsel.
Even assuming that extraordinary circumstances did exist, Simmons would
still be required to exhaust available state remedies prior to seeking federal habeas
relief. See 28 U.S.C. § 2254(b); Atkins, 644 F.2d at 546.
Simmons disagrees. She asserts that the ineffectiveness of her state court
attorney excuses the exhaustion requirement. See 28 U.S.C. § 2254(b)(1)(B)(ii)
(exhaustion excused when “circumstances exist that render such process
ineffective to protect the rights of the applicant.”). But Simmons may not bypass
the state courts based upon her own belief that the state courts will not entertain her
claims. Engle v. Isaac, 456 U.S. 107, 130 (1982); see also Bousley v. U.S., 523
U.S. 614, 623 (1998). And Simmons fails to assert facts showing the absence of an
available state corrective process or that circumstances would render such a
process ineffective. (See ECF No. 1, PageID.54-58).
For all these reasons, the habeas petition is premature and must be
dismissed.

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V.

Stay Motion
Simmons also wants to stay the state court criminal proceedings pursuant to

28 U.S.C. § 2251. 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 habeas petition is
being denied, the Court lacks the requisite 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 because the court’s jurisdiction ended with denial of the
application); see also Simmons v. Michigan, No. 22-12721, 2024 U.S. Dist. LEXIS
14640, at *4 (E.D. Mich. Jan. 26, 2024). The motion for a stay is therefore denied.
VI.

Certificate of Appealability
Before Simmons may appeal this decision, a certificate of appealability must

issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b); Winburn v. Nagy, 956
F.3d 909, 911-12 (6th Cir. 2020) (ruling that a state pre-trial detainee must obtain a
certificate of appealability to appeal the denial of a habeas petition). A court may
grant a certificate of appealability only when the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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When a court denies relief on procedural grounds, a certificate of
appealability should issue if the petitioner demonstrates that reasonable jurists
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and that reasonable jurists would find it debatable whether the
court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Simmons makes no such showing. Reasonable jurists would not find the
Court’s procedural ruling debatable.
Lastly, Simmons is not entitled to appeal this decision in forma pauperis
because such an appeal cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Fed. R. App. P. 24(a). Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus (ECF No. 1) is
dismissed without prejudice.

IT IS FURTHER ORDERED that the motion for a stay (ECF No. 3) is
denied.

IT IS FURTHER ORDERED that a certificate of appealability is denied.

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IT IS FURTHER ORDERED that Simmons may not file an appeal in forma
pauperis because it cannot be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24(a)(3).

Dated: November 22, 2024

s/Robert J. White
Robert J. White
United States District Judge

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