Simon v. Rapelje

Filing 15

OPINION and ORDER Denying Petitioner's 14 Motion for Appointment of Counsel as Moot, Denying the Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIE EARL SIMON, III,
Petitioner,
Case No. 13-cv-14942
v.
Honorable Linda V. Parker
PAUL KLEE,
Respondent.
_____________________________/
OPINION AND ORDER DENYING PETITIONER’S MOTION FOR
APPOINTMENT OF COUNSEL AS MOOT [ECF NO. 14], DENYING THE
PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1], DENYING A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
I. INTRODUCTION
State prisoner Willie Earl Simon, III (“Petitioner”), has filed a pro se habeas
corpus petition, challenging his Oakland County, Michigan conviction for one count
of first-degree criminal sexual conduct. See Mich. Comp. Laws §
750.520b(1)(b)(ii) (sexual penetration of a person who is related to the defendant
and is at least thirteen years old, but less than sixteen years old). Petitioner alleges
as grounds for relief that his trial attorney was ineffective, the prosecutor shifted the
burden of proof, and the trial court erred when sentencing him. The State argues in
an answer to the petition filed through counsel that Petitioner’s

prosecutorial-misconduct claim is procedurally defaulted, that Petitioner’s
sentencing claims are not cognizable on habeas review, and that the state courts’
rejection of Petitioner’s claims did not result in decisions that were contrary to
federal law, unreasonable applications of federal law, or unreasonable
determinations of the facts. The Court agrees with this assessment of Petitioner’s
claims. Accordingly, the habeas petition and Petitioner’s motion for appointment
of counsel will be denied.
II. BACKGROUND
The charge against Petitioner arose from allegations that he raped his
half-sister. He initially pleaded guilty to the charge, but withdrew his plea at
sentencing. He was subsequently tried before a jury in Oakland County Circuit
Court. The Michigan Court of Appeals accurately summarized the testimony at
trial as follows:
The victim’s mother testified that defendant, her daughter’s
half-brother, stayed at her home for two weeks in August 2009 after a
birthday party. The victim was 14 years old at the time, has cognitive
impairments, and has a history of seizures. The victim testified that
defendant was her brother because they both have the same father,
Willie Simon, Jr. The victim also testified that, while defendant was
staying at her house, he repeatedly raped her both vaginally and anally.
The victim did not understand sex and did not know that she had
become pregnant. The victim’s mother explained that her daughter’s
lack of a [menstrual] period over the next few months was attributed to
being taken off a seizure medicine that she had been on for a long
period of time. Because the victim was suffering from prolonged
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stomach pains, the victim’s mother took her to see her pediatrician in
January 2010 when the pregnancy was discovered. Shortly thereafter,
the victim underwent a late-term abortion procedure that took two days
to complete. DNA evidence was taken from the fetal tissue and turned
over to the police. Police took buccal swab samples from both
defendant and the victim. These DNA samples confirmed that
defendant was the father of the aborted fetus. Police also took a buccal
swab sample from Simon, Jr. The DNA taken from Simon, Jr. showed
that he was the father of both defendant and the victim.
People v. Simon, No. 305939, 2013 WL 1137116, at *1 (Mich. Ct. App. Mar. 19,
2013).
Petitioner did not testify, but he presented two defense witnesses: his mother,
Lisa Reynolds, and his father, Simon, Jr. (ECF No. 1 at Pg ID 9, 12.) Ms.
Reynolds testified that Petitioner began to associate with the victim in August 2009
and that Simon, Jr. had informed her that the victim was his daughter. (Id. at Pg ID
10, 12.)
Simon, Jr. testified that Petitioner and the victim were his children, but that he
first learned of the victim’s existence in 1997 when the victim was about three years
old and he was arrested on a warrant for failure to pay child support. (ECF No.
13-14 at Pg ID 659-60.) He also testified that he saw his brother and the victim’s
mother having sex in his bathroom in 1994 and that incident caused him to question
whether he was really the victim’s father. (Id. at Pg ID 664.) He claimed that he
did not challenge paternity of the victim because he could not afford a DNA test at

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the time. (Id. at Pg ID 666.) Defense counsel did not request any jury instructions
on lesser-included offenses, and, on July 21, 2011, the jury found Petitioner guilty,
as charged, of first-degree criminal sexual conduct. Simon, No. 305939, 2013 WL
1137116 at *1. On August 15, 2011, the trial court sentenced Petitioner to prison
for 135 months (eleven years, three months) to thirty years with 442 days of jail
credit. Id. at *6. The court also assessed fees and costs, directed Petitioner to
comply with HIV testing and the Sex Offender Registration Act, and ordered
lifetime GPS monitoring. (See ECF 1 at Pg ID 12.)
Petitioner raised his habeas claims in an appeal of right. The Michigan Court
of Appeals affirmed his conviction and sentence, see Simon, No. 305939, 2013 WL
1137116, and the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issues. See People v. Simon, 495 Mich. 853; 835 N.W.2d
589 (2013) (table).
On November 7, 2013, Petitioner filed his habeas petition in the United States
District Court for the Western District of Michigan, which transferred the case to
this District because venue was proper here. Petitioner’s grounds for relief read as
follows:
I.

Defendant was denied his right to effective assistance of
counsel where he admitted to a lesser offense but trial
counsel failed to request instructions on a lesser included
offense. US CONST AM VI
4

II.

Prosecutorial misconduct denied Mr. Simon a fair trial
where the prosecution shifted the burden of proof during
cross-examination and closing argument.

III.

The sentencing court made two guidelines-scoring errors.
Because correction of the mistakes would change the
guidelines range, Mr. Simon must be re-sentenced.

IV.

Because Mr. Simon was convicted of offenses against a
complainant who was not “less than thirteen years of age,”
lifetime electronic monitoring was not a permissible
sentence condition. Counsel was ineffective for failing to
object.

(Brief in Support of Pet. for Writ of Habeas Corpus, pages 5, 9, 13, and 16, ECF No.
1, Pg ID 13, 17, 21, 24.)
III. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state
prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(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

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(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.

28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ 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. Under the “unreasonable
application” clause [of § 2254(d)(1)], a federal habeas court may grant
the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court
for Part II). “[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. Rather, that
application must also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating
state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands
that state-court decisions be given the benefit of the doubt,’ Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).
“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

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court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on his or her claim “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 103.
IV. ANALYSIS
A. Claim One: Ineffective Assistance of Trial Counsel
Petitioner alleges that his trial attorney deprived him of effective assistance
when the attorney conceded the elements of third-degree criminal sexual conduct,
but failed to request a jury instruction on that offense.
1. Legal Framework
“[C]learly established federal law here is Strickland v. Washington,” 466 U.S.
668 (1984). Cullen v. Pinholster, 563 U.S. 170, 189 (2011). Under Strickland, a
defendant must show “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
“Unless a defendant makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders the result
unreliable.” Id.
The “deficient performance” prong of the Strickland test “requires showing

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that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because
of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” There
are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations omitted). “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690.
To demonstrate that counsel’s performance prejudiced the defense, a
defendant must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694. “This does not require a showing that counsel’s actions ‘more likely than

8

not altered the outcome,’ ” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (quoting Strickland,
466 U.S. at 693).
Furthermore, review of an ineffective-assistance-of-counsel claim is “doubly
deferential” under AEDPA
because counsel is “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment,” Burt v. Titlow, 571 U.S. ––––, –––
–, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); internal quotation marks omitted). In such circumstances,
federal courts are to afford “both the state court and the defense
attorney the benefit of the doubt.” Burt, supra, at ––––, 134 S.Ct., at
13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam).
2. Application
In Michigan, “[a] necessarily included lesser offense is an offense in which all
its elements are included in the elements of the greater offense such that it would be
impossible to commit the greater offense without first having committed the lesser
offense.” People v. Apgar, 690 N.W.2d 312, 316 (Mich. Ct. App. 2004). As
charged in this case, third-degree criminal sexual conduct was a necessarily
lesser-included offense of first-degree criminal sexual conduct, because both
offenses require sexual penetration of a victim who is thirteen, fourteen, or fifteen

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years old. Cf. Mich. Comp. Laws § 750.520b(1)(b) (first-degree criminal sexual
conduct) with Mich. Comp. Laws § 750.520d(1)(a) (third-degree criminal sexual
conduct). The factor that distinguished first-degree criminal sexual conduct from
third-degree criminal sexual conduct was a relationship to the victim “by blood or
affinity to the fourth degree.” Mich. Comp. Laws § 750.520b(1)(b)(ii). Because it
was impossible to commit first-degree criminal sexual conduct without having first
committed third-degree criminal sexual conduct, the trial court would have been
required to instruct the jury on third-degree criminal sexual conduct if defense
counsel had requested an instruction on that offense. See People v. Cornell, 646
N.W.2d 127, 142 (Mich. 2002).
No one disputed that the victim was thirteen to fifteen years old at the time of
the crimes, and DNA evidence confirmed that Petitioner had impregnated the
victim. Therefore, a jury instruction on third-degree criminal sexual conduct would
have increased Petitioner’s chance of being convicted. It is obvious from the record
that defense counsel’s strategy was to convince the jury that Petitioner was not
related to the victim. If he had been successful in asserting this defense, Petitioner
would have been acquitted. Under the circumstances, it was not ineffective
assistance to adopt an all-or-nothing strategy in the hope that the jury would acquit
Petitioner rather than convict him of a lesser offense.

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Taking an all-or-nothing approach in an effort to obtain a full acquittal of the
defendant can be a reasonable strategic decision, Lewis v. Russell, 42 F. App’x 809,
810-11 (6th Cir. 2002), as can the failure to request an instruction on a
lesser-included offense. Washington v. United States, 291 F. Supp. 2d 418, 442
(W.D. Va. 2003). Furthermore, as the Michigan Court of Appeals pointed out, an
all-or-nothing defense strategy was defense counsel’s only viable option,
considering the fact that: (1) there was no dispute that the victim was
less than 16 years old at the time of the rapes; and (2) the DNA
evidence taken from the victim, defendant, and the fetal tissue
confirmed that defendant impregnated the victim, and, therefore, that
defendant had sexually penetrated the victim. It seems reasonable that
the only feasible defense theory of the case, under these facts, was for
defense counsel to exploit the possibility that defendant and the victim
were not blood related as required in the statute.
Simon, 2013 WL 1137116, at *2.
“The fact that the defense failed does not transform a strategic decision into
ineffective assistance of counsel.” Sua v. Tilton, No. 07CV1338 JM(BLM), 2008
WL 2385521, at *21 (S.D. Cal. June 9, 2008); see also Riley v. Lockhart, 726 F.2d
421, 423 (8th Cir. 1984) (noting that trial counsel employed an all-or-nothing
strategy in the belief that the jury would acquit the defendant and that “hindsight,
though a superior view, does not form the basis for finding a constitutional
deprivation in strategic or tactical decisions”); U.S. ex rel. Sumner v. Washington,
840 F. Supp. 562, 573–74 (N.D. Ill. 1993) (stating that, “[w]hile the
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either-acquittal-or-murder choice turned out to be a loser, Strickland and its progeny
teach that counsel’s actions are not to be assessed with the benefit of hindsight” and
that counsel’s approach did not fall “below the level of constitutionally permissible
legal representation”). “[A] ‘conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective assistance of counsel
unless it is so ill chosen that it permeates the entire trial with obvious unfairness.’ ”
Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008) (quoting Johnson v. Dretke, 394
F.3d 332, 337 (5th Cir. 2002)).
Here, defense counsel’s decision to forego a jury instruction on the
lesser-included offense of third-degree criminal sexual conduct was reasonable trial
strategy, given the overwhelming evidence of Petitioner’s guilt. Further, the state
appellate court’s decision was not an unreasonable application of Strickland, which
presumes that counsel’s conduct is sound trial strategy and falls within a wide range
of reasonable professional assistance.
Given the double deference due to defense counsel and the state court’s
decision, this Court cannot say that defendant’s performance was deficient. The
Court therefore declines to grant relief on Petitioner’s
ineffective-assistance-of-counsel claim.
B. Claim Two: Prosecutorial Misconduct

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Petitioner alleges next that the prosecutor deprived him of a fair trial by
shifting the burden of proof to him during her questioning of witnesses and during
closing arguments. The questions and comments pertained to the defense theory
that Petitioner’s uncle, rather than his father (Simon, Jr.), was the victim’s real
father. The prosecutor questioned witnesses as to whether any of Petitioner’s
family members had informed the police about Petitioner’s uncle and suggested that
the uncle was the victim’s father. See Trial Tr. Vol. II, at page 92, July 20, 2011,
ECF No. 13-13, Pg ID 602 (Detective Ryan McDonald’s testimony); id. at page 95,
Pg ID 605 (Police Officer Jody Horne’s testimony that the first time she heard about
Simon, Jr.’s brother being the victim’s real father was at trial and that Petitioner’s
family did not contact the police with this information); Trial Tr. Vol. III, at page 27,
July 21, 2011, ECF No. 13-14, Pg ID 636 (Police Officer Kelly Bauss’ testimony
that Petitioner’s father did not suggest taking a buccal swab from his brother); id. at
page 80, Pg ID 689 (Simon, Jr.’s testimony that he never suggested to anyone in law
enforcement that they should talk to his brother. And in her closing argument, the
prosecutor said:
He’s questioning the DNA. What witnesses other than Willie, Jr. did
you hear questioning [the human identity scientist’s] conclusion? . . .
[S]iblings have kids, what are those kids to each other? They’re first
cousins. First cousins are related within the fourth degree. So
maybe Mr. Willie Simon Jr. . . . shoulda done a little more research in
that regard.
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(Id. at pages 124-25, Pg ID at 733-34.) Petitioner claims that these comments and
the prosecutor’s related questions allowed the jury to presume his guilt from the
failure to produce evidence to substantiate the defense theory.
The Michigan Court of Appeals determined on review of Petitioner’s claim
that Petitioner failed to preserve his claim for appellate review because he did not
object to the prosecutor’s questions and conduct at trial. The State therefore argues
in its answer to the habeas petition that Petitioner’s claim is procedurally defaulted.
1. Procedural Default
In the habeas context, a procedural default is “a critical failure to comply with
state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Pursuant to the
doctrine of procedural default, “a federal court will not review the merits of [a state
prisoner’s] claims, including constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan,
132 S. Ct. 1309, 1316 (2012). In this Circuit,
“[a] habeas petitioner’s claim will be deemed procedurally defaulted if
each of the following four factors is met: (1) the petitioner failed to
comply with a state procedural rule; (2) the state courts enforced the
rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the
petitioner has not shown cause and prejudice excusing the default.”
[Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)]. To
determine whether a state procedural rule was applied to bar a habeas
claim, [courts] look “to the last reasoned state court decision disposing
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of the claim.” Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010)
(en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
2. Application
The state procedural rule in question here is Michigan’s
contemporaneous-objection rule, which requires defendants in criminal cases to
preserve their claims for appeal by first making an objection in the trial court.
People v. Carines, 597 N.W.2d 130, 137-38 (Mich. 1999). Petitioner admits that he
did not preserve his claim by objecting at trial. (Pet. for Writ of Habeas Corpus, at
page 9, ECF No. 1, Pg ID 17.) The first factor is satisfied.
The Michigan Court of Appeals was the last state court to adjudicate
Petitioner’s claim in a reasoned opinion, and, as noted above, it reviewed the claim
“for plain error affecting [Petitioner’s] substantial rights,” because Petitioner did not
object to the prosecutor’s conduct at trial. Simon, 2013 WL 1137116, at *3. A
state appellate court’s review for “plain error” constitutes enforcement of a state
procedural rule. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (citing
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz, 869
F.2d 281, 284-85 (6th Cir. 1989)). Thus, the second factor is satisfied.
The third procedural-default factor is satisfied if the state procedural rule in
question is an adequate and independent state ground for denying review of a federal
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constitutional claim. “The adequacy of a state procedural bar turns on whether it is
firmly established and regularly followed; a state rule is independent if the state
court actually relies on it to preclude a merits review.” Biros v. Bagley, 422 F.3d
379, 387 (6th Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)).
“Michigan’s contemporaneous-objection rule is both a well-established and
normally enforced procedural rule,” Taylor v. McKee, 649 F.3d 446, 451 (6th Cir.
2011), and the Michigan Court of Appeals relied on the rule to preclude a full review
of Petitioner’s claim. Although the appellate court also addressed the merits of
Petitioner’s claim,1 this alternative holding “does not require [the Court] to
disregard the state court’s finding of procedural bar.” Coe v. Bell, 161 F.3d 320,
330 (6th Cir. 1998). As explained in Harris v. Reed, 489 U.S. 255 (1989),
a state court need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law. See Fox Film
Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L. Ed. 158
(1935). Thus, by applying this doctrine to habeas cases, [Wainwright v.
Sykes, 433 U.S. 72, 97 S. Ct. 2497 (1977)] curtails reconsideration of
the federal issue on federal habeas as long as the state court explicitly
invokes a state procedural bar rule as a separate basis for decision. In
this way, a state court may reach a federal question without sacrificing
1

The Court of Appeals stated that the prosecutor’s questions were a response to
defense counsel’s theory of the case, that the prosecutor’s closing argument did not
imply Petitioner had to prove anything, and that the prosecutor did not shift the
burden of proof. Simon, 2013 WL 1137116, at *2.
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its interests in finality, federalism, and comity.
Id. at 264 n.10 (emphasis in original).
Here, the state appellate court relied on the contemporaneous-objection rule to
preclude relief and addressed the merits of Petitioner’s claim on an alternative basis.
Thus, the contemporaneous-objection rule is an adequate and independent state
ground for denying review of Petitioner’s constitutional claim, and the third
procedural-default factor is satisfied.
The fourth and final factor is whether Petitioner has shown “cause” for his
failure to object to the prosecutor’s conduct and resulting prejudice. Petitioner has
not advanced any argument in support of a finding of “cause and prejudice.” The
Court therefore deems the “cause and prejudice” argument abandoned. Roberts v.
Carter, 337 F.3d 609, 613 (6th Cir. 2003) (citing United States v. Cofield, 233 F.3d
405, 407 (6th Cir. 2000)).
In the absence of cause and prejudice, a habeas petitioner can proceed with a
procedurally defaulted claim only if he “demonstrate[s] that failure to consider the
claim[] will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). “A fundamental miscarriage of justice results from the
conviction of one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754,
764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To be

17

credible, [a claim of actual innocence] requires [the] petitioner to support his
allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995). “A petitioner’s burden at the gateway stage is to demonstrate that more
likely than not, in light of the new evidence . . . any reasonable juror would have
reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006).
Petitioner has not produced any new evidence that was not presented at trial.
Therefore, a miscarriage of justice will not occur as a result of the Court’s failure to
address his claim on the merits. All four factors of a procedural default have been
satisfied here.
3. Harmless Error
Even if Petitioner’s claim were not procedurally defaulted, the prosecutor
informed the jury that she carried the burden of proof. (Trial Tr. Vol. III, at page
125, July 21, 2011, ECF No. 13-14, Pg ID 734.) Additionally, the state trial court
instructed the jury that the attorneys’ questions and closing arguments were not
evidence. The trial court also instructed the jurors that the prosecutor had to prove
each element of the crime beyond a reasonable doubt, that Petitioner was presumed
innocent and did not have to prove his innocence or produce any evidence, and that

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the jurors should consider only the admissible evidence, which included the
witnesses’ testimony and the exhibits. (Trial Tr. Vol. I, at pages 174-77, July 19,
2011, ECF No. 13-12, pg ID 409-12; Trial Tr. Vol. III, at page 100, 125-29 July 21,
2011, ECF No. 13-14, Pg ID 709, 734-38).
These generic instructions served to mitigate any prejudice caused by the
prosecutor’s remarks, United States v. Gracia, 522 F.3d 597, 604 (5th Cir. 2008),
because jurors are presumed to follow their instructions. Richardson v. Marsh, 481
U.S. 200, 211 (1987). Furthermore, the evidence against Petitioner was
overwhelming. The alleged constitutional error could not have had a “substantial
and injurious effect or influence in determining the jury’s verdict,” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993), and was harmless. The Court declines to
grant relief on Petitioner’s prosecutorial-misconduct claim.
C. Claims Three and Four: Sentencing Errors
1. The Sentencing Guidelines
Petitioner alleges that the trial court incorrectly scored offense variables ten
and thirteen of the Michigan sentencing guidelines. Petitioner asserts that he is
entitled to be re-sentenced because correcting the mistakes would change the
sentencing guidelines range.
a. Clearly Established Federal Law

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The state trial “court’s alleged misinterpretation of state sentencing guidelines
. . . is a matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003), and “federal habeas corpus does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s allegation that the
trial court incorrectly scored two offense variables of the state sentencing guidelines
is not a cognizable claim here. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.
2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v.
Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). Even if Petitioner’s claims
were cognizable on habeas review, the claims lack merit for the following reasons.
b. Offense Variable Ten
Petitioner received ten points for offense variable ten, which is exploitation of
a vulnerable victim. Mich. Comp. Laws § 777.40. Ten points is appropriate if
“[t]he offender exploited a victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship, or the offender abused his or her authority
status.” Mich. Comp. Laws § 777.40(1)(b). The statute defines “vulnerability” as
“the readily apparent susceptibility of a victim to injury, physical restraint,
persuasion, or temptation,” Mich. Comp. Laws § 777.40(3)(c), and it defines
“exploit” as manipulation of “a victim for selfish or unethical purposes.” Mich.
Comp. Laws § 777.40(3)(b).

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Petitioner maintains that he did not exploit the victim’s vulnerability, nor
manipulate her for selfish or unethical purposes. Citing People v. Cannon, 481
Mich. 152, 159; 749 N.W.2d 257, 261-62 (2008), Petitioner argues that the mere
existence of one or more factors described in § 777.40(1)(b) does not automatically
equate to vulnerability; there must also be proof that he exploited the victim’s
vulnerability. According to him, the victim’s youthfulness and cognitive
limitations were mere factors at play, not something that made her readily
susceptible to persuasion or temptation, as required by § 777.40(3)(c).
Consequently, he maintains that he should not have received any points for offense
variable ten.
The Michigan Court of Appeals disagreed. It found ample evidence in the
record to support the scoring of ten points for offense variable ten. In reaching this
conclusion, the Court of Appeals noted that:
[t]he victim was only 14 years old at the time of the rape and her mother
testified that she is cognitively impaired. At the time of trial, when the
victim was 16, her mother testified that she functioned at an 11–year–
old age level. While the victim was in high school at the time of trial,
she attended the special education program and her courses were at a
third-grade level. Nearly two years after the rapes occurred, the victim
testified that she did not know what “sex” was and could not explain it.
The victim’s testimony demonstrated that she is a naïve, young girl,
and was an especially easy target for defendant. Defendant is the
victim’s older half brother and he was staying at her house for an
extended period of time. Defendant took advantage of his access to
the victim while no one was around, and he manipulated her when he
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told her not to tell anyone about the rapes because her mother would put
her on the streets if she got pregnant.
Simon, 2013 WL 1137116, at *6. The Court of Appeals concluded that the trial
court did not err when it scored ten points for offense variable ten, “because there
was evidence that defendant exploited the victim’s youth and cognitive
impairment.” Id.
The state court’s factual findings are supported by the record, and its analysis
of Petitioner’s claim was objectively reasonable. Therefore, Petitioner’s challenge
to the scoring of offense variable ten lacks merit in addition to being non-cognizable
on habeas review.
c. Offense Variable Thirteen
Petitioner contends that the trial court erroneously scored twenty-five points
for offense variable thirteen, which is a continuing pattern of criminal behavior.
Mich. Comp. Laws § 777.43. As used in this case, a score of twenty-five was
appropriate if “[t]he offense was part of a pattern of felonious criminal activity
involving 3 or more crimes against a person.” Mich. Comp. Laws § 777.43(1)(c).
Petitioner contends that he did not commit three or more crimes against a
person within five years. The Michigan Court of Appeals, however, correctly
pointed out that “[t]he victim specifically testified that defendant sexually assaulted
her vaginally and anally more than three times and that it ‘kept going on and on’
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even though she asked him to stop.” Simon, 2013 WL 1137116, at *6. This
observation is supported by the record. See Trial Tr. Vol. I at 247-50, 253, 255-57,
July 19, 2011, ECF No. 13-12, Pg ID 482-85, 488, 490-91. It is also clear from the
record that these events occurred within the same year when Petitioner was staying
in the victim’s home. The Court of Appeals therefore reasonably concluded that,
“the trial court did not clearly err when it scored 25 points for OV 13” and that
Petitioner was not entitled to re-sentencing. Simon, 2013 WL 1137116, at *6.
Petitioner’s claim lacks merit in addition to being non-cognizable on habeas review.
2. Electronic Monitoring
Petitioner’s fourth and final claim alleges that the trial court erred when it
imposed lifetime electronic monitoring at his sentencing. Under Mich. Comp.
Laws § 750.520b(2)(d), trial courts must sentence a defendant convicted of
first-degree criminal sexual conduct to lifetime electronic sentencing “in addition to
any other penalty imposed.” But Mich. Comp. Laws § 750.520n(1) limits lifetime
electronic monitoring to defendants seventeen years old or older who committed
criminal sexual conduct against an individual less than thirteen years of age. The
victim in this case was fourteen years old when Petitioner subjected her to criminal
sexual conduct. Petitioner therefore claims that he was wrongfully sentenced to
lifetime electronic monitoring and that his trial attorney was ineffective for failing to

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object to this provision of his sentence.
Petitioner supports his sentencing claim with references to state case law and
statutes. Federal courts, however, “may not issue the writ [of habeas corpus] on the
basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984).
“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle
v. McGuire, 502 U.S. 62, 68 (1991).
The Michigan Court of Appeals, moreover, concluded in People v. Johnson,
826 N.W.2d 170, 175 (Mich. Ct. App. 2012), “that, regardless of the ages of the
defendant and the victim, MCL 750.520b(2) requires lifetime electronic monitoring
for first-degree criminal sexual conduct convictions when the defendant has not
been sentenced to life in prison without the possibility of
parole.” Id. at 174-75. The state trial court in this case did not sentence Petitioner
to life imprisonment without the possibility of parole. The Michigan Court of
Appeals therefore concluded that the trial court properly sentenced Petitioner to
lifetime electronic monitoring. Because state courts are the final authority on
matters of state law, the state appellate court’s interpretation of state law binds this
Court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005);
Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). It follows that defense counsel

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was not ineffective for failing to object to the electronic-monitoring provision of the
sentence. Petitioner has no right to relief on the basis of his fourth and final claim.
V. CONCLUSION
Petitioner’s second claim is procedurally defaulted, and the state courts’
adjudication of his other claims on the merits did not result in decisions that were
contrary to federal law, unreasonable applications of federal law, or unreasonable
determinations of the facts. Accordingly, the habeas corpus petition is denied.
VI. CERTIFICATE OF APPEALABILITY
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition.
Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward:
The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or
wrong . . . . When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when
the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
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whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Reasonable jurists could not debate the Court’s assessment of Petitioner’s
first, third, and fourth claims. Reasonable jurists also would not find it debatable
whether the second issue (prosecutorial-misconduct) states a valid claim of the
denial of a constitutional right or whether the Court was correct in concluding that
the issue is procedurally defaulted. The Court therefore declines to issue a
certificate of appealability.
VII. ORDER
For the reasons given above,
IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for appointment of
counsel (ECF No. 14) is denied as moot.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal because he was granted leave to proceed in forma pauperis in
this Court, and an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed.

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R. App. P. 24(a)(3)(A).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: January 24, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, January 24, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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