UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES SIMMONS,

Petitioner,

v.

THOMAS PHILLIPS,

Respondent. 

/

Case Number: 09-CV-10040

HON. MARK A. GOLDSMITH

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner James Simmons was convicted following a jury trial in Washtenaw County Circuit

Court of attempted breaking and entering with intent to commit larceny, Mich. Comp. Laws §§

750.110, 750.92 and fingerprinting refusal, Mich. Comp. Laws § 28.243a. He was sentenced to

three to ten years in prison for the attempted breaking and entering conviction and to time served

for the fingerprinting refusal conviction. He has filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2254, alleging that his attempted breaking and entering conviction is

unconstitutional because the trial court refused Petitioner’s request for new counsel without

adequately inquiring into a claimed breakdown in the attorney-client relationship, and because

insufficient evidence was presented to sustain the attempted breaking and entering conviction. The

Court finds that Petitioner is not entitled to habeas corpus relief and, accordingly, will deny the

petition. 

I. Facts

The Michigan Court of Appeals summarized the testimony leading to Petitioner’s

convictions as follows:

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This case involves defendant’s attempt to enter Lake’s Radiator Service in Ypsilanti

on August 15, 2006, at approximately 7:40 p.m. Ypsilanti Police Officer Yuchasz

was patrolling the area, and saw defendant looking into the garage’s side windows.

The building did not appear to have activity in it. Yuchasz saw defendant shake a

door to the building, and then move to the front. Defendant appeared to look in one

of the front windows, and then grabbed the front door handle. He shook the front

door, and then slammed his shoulder into the door two or three times. At that point,

defendant’s companion, Joseph Halton, saw the police and yelled to defendant.

Defendant started to walk away, but stopped when Yuchasz ordered him to do so.

After providing Yuchasz with a false name, defendant explained that he was trying

to purchase a radiator for his car. After Yuchasz told defendant that he recognized

him, defendant became aggressive. He later refused to cooperate with the booking

procedures, and refused to be fingerprinted.

People v. Simmons, No. 277239, 2008 WL 2038416, at *1 (Mich. Ct. App. May 13, 2008). 

 II. Procedural History

Following a jury trial, Petitioner was convicted of attempted breaking and entering with

intent to commit larceny and fingerprinting refusal. He filed an appeal of right in the Michigan

Court of Appeals raising these claims:

I. Appellant is entitled to a new trial because there was an attorney-client breakdown

and the trial court refused appellant’s request for new counsel without an adequate

inquiry into the breakdown.

II. Appellant was denied due process of law since there was insufficient evidence to

support a conviction of attempted breaking and entering with intent.

The Michigan Court of Appeals affirmed Petitioner’s convictions, but remanded the matter

to the trial court with instructions to issue an amended judgment of sentence to correct a clerical

error. Id. 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised

the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied

leave to appeal. People v. Simmons, No. 136608 (Mich. Sept. 9, 2008).

Petitioner then filed this petition for a writ of habeas corpus. He raises the same claims

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raised in state court. 

III. Discussion

A. Standard of Review

The petitioner’s claims are reviewed against the standards established by the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The

AEDPA provides:

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 proceedings. 

28 U.S.C. § 2254(d). 

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that

are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per

curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable

application’ prong of the statute permits a federal habeas court to ‘grant the writ if the state court

identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies

that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting

Williams, 529 U.S. at 413). However, “[i]n order for a federal court find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than

incorrect or erroneous. The state court’s application must have been ‘objectively unreasonable.’”

Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “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 court’s decision.” Harrington v. Richter, __ U.S. __,

131 S. Ct. 770, 789 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Section

2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a

condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 131 S. Ct. at 786-87 (internal quotation omitted). 

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the

state court’s decision comports with clearly established federal law as determined by the Supreme

Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section

2254(d) “does not require citation of [Supreme Court] cases – indeed, it does not even require

awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of

“clearly established law” are to be determined solely by resort to Supreme Court rulings, the

decisions of lower federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).

Lastly, a federal habeas court must presume the correctness of state court factual

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determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

B. Request for Substitute Counsel

Petitioner argues that habeas relief is warranted because he advised the trial court about a

breakdown in the attorney-client relationship on the day scheduled for trial to commence and the

trial court denied Petitioner’s request for new counsel without an adequate inquiry into the

breakdown. The Sixth Amendment guarantees an accused in all criminal prosecutions the right

to the assistance of counsel in his defense, and gives an indigent criminal defendant the right to the

assistance of court-appointed counsel. See Gideon v. Wainwright, 372 U.S. 335, 343 (1963). “[T]he

purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants receive a

fair trial.’” Wheat v. United States, 486 U.S. 153, 159 (1988) (quoting Strickland v. Washington,

466 U.S. 668, 689 (1984)). “[I]n evaluating Sixth Amendment claims, ‘the appropriate inquiry

focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.’”

Wheat, 486 U.S. at 159 (quoting United States v. Cronic, 466 U.S. 648, 657 n.21 (1984)). Further,

“the essential aim of the Amendment is to guarantee an effective advocate for each criminal

defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom

he prefers.” Id. 

The Sixth Amendment guarantees effective assistance of counsel, not a “meaningful

relationship” between an accused and his counsel. See Morris v. Slappy, 461 U.S. 1, 14 (1983).

Thus, “when a defendant is denied the counsel he prefers, the constitutional concern is whether he

received an effective advocate.” Ray v. Curtis, 21 F. App’x 333, 335 (6th Cir. 2001). This is so

because “those who do not have the means to hire their own lawyers have no cognizable complaint

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so long as they are adequately represented by attorneys appointed by the courts.” Caplin &

Drysdale v. United States, 491 U.S. 617, 624 (1989). 

In this case, the Michigan Court of Appeals held that Petitioner failed to show good cause

to substitute counsel or that substitution of counsel would not unreasonably disrupt the judicial

process. Petitioner argued that, because he had decided to file a grievance against his attorney,

substitution of counsel was warranted. The state court noted that Petitioner failed to provide any

underlying rationale for his decision to file a grievance and failed to provide any support for his

argument that his attorney would be biased against him because he filed a grievance. Moreover, the

state court reasoned that Petitioner failed to explain any differences between him and his attorney

regarding fundamental trial tactics. Based upon the foregoing, the state court concluded that the trial

court did not abuse its discretion in denying Petitioner’s request for substitute counsel. Simmons,

2008 WL 2038416, at *2.

Focusing on the quality of representation received, as this Court must on habeas review, the

Court finds that Petitioner was not prejudiced by the trial court’s refusal to appoint substitute

counsel. Petitioner fails to show any instances in which counsel was ineffective, fails to cite specific

examples of any breakdown in communication or difference in strategy, and fails to show that the

late request for substitute counsel, a request made on the day of trial, if granted, would not disrupt

the judicial process. Accordingly, the Court finds that the state court’s decision was not an

unreasonable application of, or contrary to, Supreme Court precedent. Habeas relief is denied on

this claim. 

C. Sufficiency of the Evidence

Petitioner argues that insufficient evidence was presented to prove, beyond a reasonable

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doubt, that he was guilty of breaking and entering with intent to commit larceny. 

“[T]he 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). On direct review, review of a sufficiency of the evidence

challenge must focus on 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the

habeas context, “[t]he Jackson standard must be applied ‘with explicit reference to the substantive

elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th

Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). “Two layers of deference apply to habeas

claims challenging evidentiary sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010).

First, the Court “must determine whether, viewing the trial testimony and exhibits 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.” Brown, 567 F.3d at 205. Second, if the Court were “to conclude

that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on

habeas review, [the Court] must still defer to the state appellate court’s sufficiency determination

as long as it is not unreasonable.” Id. “A reviewing court does not reweigh the evidence or

redetermine the credibility of the witnesses whose demeanor has been observed by the trial court.”

Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). “A reviewing court ‘faced with a record

of historical facts that supports conflicting inferences must presume – even if it does not

affirmatively appear in the record – that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.’” McDaniel v. Brown, __ U.S. __, 130 S. Ct. 665, 674

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(2010) (quoting Jackson, 443 U.S. at 326). 

Under Michigan law, the elements of breaking and entering are: “‘(1) the defendant broke

into a building, (2) the defendant entered the building, and (3) at the time of the breaking and

entering, the defendant intended to commit a larceny or felony therein.’” Simmons, 2008 WL

2038416, at *2 (quoting People v. Adams, 509 N.W.2d 530, 532 (1993)). Attempt consists of “(1)

an intent to commit an offense prohibited by law, and (2) any act toward the commission of the

intended offense.” Simmons, 2008 WL 2038416, at *3.

The Michigan Court of Appeals, although not specifically citing Jackson, clearly applied the

Jackson standard and held that sufficient evidence was presented to sustain Petitioner’s conviction.

The court wrote, in relevant part:

[D]efendant argues that the prosecutor failed to present evidence that defendant

intended to commit a larceny when he tried to enter the service building. Defendant

ignores the impact of the testimony from Halton. Halton testified that they walked

to the building from a friend’s home. When they arrived, defendant looked inside

the building through a window. Defendant told Halton that there were “a lot of tools

in there” and that “he can get them.” Defendant then jiggled the handle of the door,

but it would not open. Because of the difficulty of proving an actor’s state of mind,

minimal circumstantial evidence is sufficient to establish the element of intent. . . .

Halton’s testimony, especially when combined with the other testimony concerning

Defendant’s attempt to enter, provided circumstantial evidence to support a finding

that defendant intended to steal the tools at the time he tried to enter the building.

Simmons, 2008 WL 2038416, at *2. 

In light of the direct and circumstantial evidence presented which supported the

prosecution’s theory that Petitioner intended to commit a breaking and entering, the Michigan Court

of Appeals’ decision that a rational trier of fact could find the essential elements proven beyond a

reasonable doubt was reasonable. Habeas relief is not warranted.

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II. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing

Section 2254 Proceedings now requires that the court “must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable jurists

could debate whether (or, for that matter, 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, 484 (2000) (citation omitted). In this case, the Court

concludes that reasonable jurists would not debate the Court’s conclusion that the petition fails to

state a claim upon which habeas corpus relief should be granted. Therefore, the Court will deny a

certificate of appealability. 

IV. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus and a certificate of

appealability are denied, and the matter is dismissed. 

SO ORDERED.

 s/Mark A. Goldsmith 

MARK A. GOLDSMITH

UNITED STATES DISTRICT JUDGE

DATED: November 10, 2011

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