NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0046n.06

No. 21-1405

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ABIGAIL SIMON,

Petitioner-Appellant,

v.

SHAWN BREWER, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN 

Before: SILER, KETHLEDGE, and READLER, Circuit Judges.

KETHLEDGE, Circuit Judge. In 2014, a Michigan jury convicted Abigail Simon of 

having a sexual relationship with a 15-year-old boy. The Michigan Court of Appeals affirmed her

convictions and the Michigan Supreme Court denied review. Simon later petitioned for federal 

habeas relief, arguing that a jury instruction at her trial violated her due-process rights. The district 

court denied her petition. We affirm.

In February 2013, Abigail Simon, a 33-year-old tutor at Catholic Central High School in 

Grand Rapids, began a sexual relationship with a 15-year-old sophomore whom she tutored, B.B. 

The two met several times to have sex, and frequently texted about their feelings for one another 

and about their desire to engage in more sex. The relationship lasted for several months, until

B.B.’s mother found photos on B.B.’s phone of Simon wearing lingerie. 

B.B.’s mother called the police, who interviewed Simon, who denied having sex with B.B. 

The police did not believe her; in August 2013, Simon was arrested and charged with four counts 
No. 21-1405, Simon v. Brewer

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of criminal sexual conduct, in violation of Mich. Comp. Laws § 750.520(b)(1)(b)(v). At a hearing 

to determine probable cause for those offenses, B.B. testified that he had forced Simon to have sex 

with him. 

At Simon’s trial, however, B.B. recanted that testimony and said that he had been trying to 

protect Simon at the hearing. Instead, at trial, he testified that Simon had engaged in sex with him 

voluntarily. Simon, for her part, testified at trial that B.B. had raped her each time. The State 

impeached that testimony by presenting scores of text messages between Simon and B.B, many of 

which were sexual in nature.

At the close of trial, the principal question before the jury was whether Simon had engaged 

in sex with B.B. voluntarily. On that point she proposed that the jury be instructed as follows:

If a sexual act does not occur under the Defendant's control and the Defendant was

powerless to prevent its occurrence, she cannot be held criminally liable for the 

sexual act. 

The trial court chose not to use that instruction, and instead instructed the jury as follows:

To have quote/unquote “voluntarily” engaged in something, the defendant must 

have made some conscious act. The defendant's act is involuntary only if the act 

did not occur under the defendant’s control, and she was truly powerless to prevent 

its occurrence. Now, some examples of involuntary acts that could not be the basis 

for a crime are spasms, seizures, reflective [sic] actions and movements occurring 

while the actor is unconscious or asleep. However, if one consciously acts, then that 

is voluntary for purposes of this element. 

The jury convicted Simon on three of the four counts of criminal sexual conduct, for which 

the trial court sentenced Simon to 8 to 25 years in prison. She appealed to the Michigan Court of 

Appeals, which affirmed, holding in a carefully reasoned opinion that the trial court’s instruction 

as to voluntariness was lawful. The Michigan Supreme Court denied leave to appeal. Simon filed 

a federal habeas petition in which she claimed that the instruction quoted above violated her 

constitutional right to due process. The district court denied relief. This appeal followed.
No. 21-1405, Simon v. Brewer

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As an initial matter, Simon argues that the Michigan Court of Appeals did not adjudicate 

her due-process claim on the merits, which, if true, would mean that we should consider that claim 

de novo. But where—as here—a defendant makes a federal claim to a state court and the state 

court denies relief, we presume “that the state court adjudicated the claim on the merits in the 

absence of any indication or state-law procedural principles to the contrary[.]” Harrington v. 

Richter, 562 U.S. 86, 99 (2011). There is no such indication here. Instead, the Michigan Court of 

Appeals expressly acknowledged Simon’s argument that the trial court’s instruction “violated her 

constitutional right to due process and prevented her from presenting her claimed defense.” People 

v. Simon, No. 326149, 2016 WL 3365242, at *1 (Mich. Ct. App. June 16, 2016). And the state 

appellate court then explained in detail why the trial court had committed “no instructional error.” 

Id. at *4. That the court cited state law throughout is immaterial: its reasoning was enough to

refute both her federal and state-law instructional claims. Hence the state court adjudicated 

Simon’s federal claims on the merits. See Johnson v. Williams, 568 U.S. 289, 299 (2013).

Thus, the question here is whether the Michigan Court of Appeals’ rejection of Simon’s 

instructional claim “was so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 

U.S. at 103. Moreover, to violate due process, “[e]rror in jury instructions must be so egregious 

that the render the entire trial fundamentally unfair.” White v. Mitchell, 431 F.3d 517, 533 (6th 

Cir. 2005). Thus, Simon must show that every fairminded jurist would conclude that the trial 

court’s instruction rendered her trial fundamentally unfair. 

To that end, Simon argues primarily that the trial court defined “involuntary” too narrowly 

when it instructed the jury that, “if one consciously acts, then that is voluntary for purposes of this 

element.” But we must consider the court’s instruction as a whole; and, as the Michigan Court of 
No. 21-1405, Simon v. Brewer

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Appeals pointed out, the instruction also stated more broadly that an act is involuntary “only if the 

act did not occur under the defendant’s control.” That definition of involuntariness encompassed 

Simon’s theory that B.B. physically forced her to have sex. And the Michigan Court of Appeals 

further observed that, though one definition of “conscious” is awareness of one’s actions and 

surroundings, a second definition is “marked by thought, will, design, or perception.” Simon, 2016 

WL 3365242, at *3 (internal quotation marks omitted). And in the context of this trial—where the 

issue before the jury was obviously whether Simon had been forced against her will to have sex—

the latter definition could naturally come to mind. 

Simon counters that the examples of involuntariness in the trial court’s instruction—

“spasms, seizures,” and the like—suggested to the jury that involuntary acts were limited to 

reflexive ones. But the instruction by its terms provided the jury with only “some examples of 

involuntary acts[,]” not an exhaustive list of them. A fairminded jurist could easily conclude that 

the trial court’s instruction did not render Simon’s trial fundamentally unfair. 

The district court’s judgment is affirmed.