UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

MICHAEL ANTHONY SIMMONS, Petitioner, Case No. 1:22-cv-845 v. Hon. Hala Y. Jarbou

DENNIS STRAUB, Respondent. ____________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (discussing that the district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436–37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, Magistrate Judge Ray Kent concluded that the petition might be barred by the one-year statute of limitations. Judge Kent permitted Petitioner, by way of an order to show cause, an opportunity to demonstrate why his petition should not be dismissed as untimely. Petitioner filed his response to the order to show cause on October 24, 2022. (ECF No. 8.) Discussion I. Factual Allegations Petitioner Michael Anthony Simmons is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. On March 7, 1997, following an eight-day jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of first-degree murder, in violation of Mich. Comp. Laws § 750.316, and use of a firearm during the commission of a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b. On March 24, 1997, the court sentenced Petitioner to life

imprisonment without parole for murder to be served consecutively to a sentence of 2 years for felony-firearm. On September 13, 2022, the United States District Court for the Eastern District of Michigan transferred a habeas petition to this Court. It was a petition Petitioner hoped to file in the Eastern District of Michigan if that Court reopened a habeas case that Petitioner had filed more than 20 years earlier, Simmons v. Straub, No 2:00-cv-74198 (E.D. Mich.). The Eastern District of Michigan declined Petitioner’s invitation to reopen that case—a case that Petitioner voluntarily dismissed two decades earlier—because Petitioner’s return to the court was simply too late. Nonetheless, recognizing that the proposed petition purported to raise weighty new issues, rather than simply dismissing the petition, the Eastern District of Michigan transferred the petition here, where venue is proper.

The transfer of the petition to this Court is somewhat ironic in that Petitioner first filed an identical petition here on November 2, 2021. Simmons v. Schiebner, No. 1:21-cv-925 (W.D. Mich.). Before the Court could consider the petition, Petitioner voluntarily dismissed it and then refiled it in the Eastern District of Michigan. So now, almost a year later, the Court will take up preliminary review of the petition. The transferred habeas petition raises two grounds for relief: I. Petitioner was denied his right under the 6th Amendment to effective assistance of trial counsel where trial counsel failed to convey a plea offer that had been made to counsel. II. Petitioner was denied his right under the 6th Amendment to effective assistance of appellate counsel where appellate counsel did not raise the issue raised here, i.e. that trial counsel was ineffective for failing to convey a plea offer. (Pet’r’s Br., ECF No. 1, PageID.13–14.) II. Statute of Limitations Certainly there can be no surprise that the passage of nearly a quarter-century between Petitioner’s conviction and the present petition raises concerns regarding the timeliness of the petition. Petitioner’s application appears to be barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). Section 2244(d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year limitations period is measured. Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the judgment of conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The claims Petitioner raised in those courts, however, were not related to the claims he raises in the present petition. As set forth in more detail below, Petitioner contends he was entirely unaware that the prosecutor had tendered a plea offer because Petitioner’s counsel never communicated that offer to Petitioner. The Michigan Supreme Court denied Petitioner’s application for leave to file a direct appeal on November 2, 1999. (Pet’r’s Br., ECF No. 1, PageID.22.) Petitioner did not petition for certiorari to the United States Supreme Court. (Id.) The one-year limitations period, however, did not begin to run until the ninety-day period in which Petitioner could have sought review in the United States Supreme Court had expired. See Lawrence v. Florida, 549 U.S. 327, 332–33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on January 31, 2000. Petitioner had one year from January 31, 2000, until January 31, 2001, to file his habeas application. Petitioner filed his first habeas petition in the United States District Court for the Eastern District of Michigan during that period, on September 13, 2000. Simmons v. Straub, No. 2:00-cv-74198 (E.D. Mich.) Petitioner moved to voluntarily dismiss that petition, however, because he had not exhausted his remedies in state court for at least some claims. The court granted

that relief on February 28, 2001. (E.D. Mich. Order, ECF No. 1, PageID.203–205.) At that time, Respondent had answered the petition and did not contend that the claims raised were not exhausted. Nonetheless, the court accepted Petitioner’s claim that he wanted to exhaust state court remedies even though Petitioner did not identify the claims that he believed to be unexhausted. (Id., PageID.204.) The court instructed Petitioner that the time the federal petition was pending would be excluded from a subsequent statute of limitations computation and directed Petitioner, following exhaustion, to return to the court and move to reinstate and amend his habeas petition. (Id., PageID.205.) Petitioner did not return to the Eastern District Court until November of 2021. In

fact, based on the chronology offered by Petitioner, he did not seek relief in the state courts either— at least not until March 7, 2008, when he filed a motion for relief from judgment in the trial court. (Pet’r’s Br., ECF No. 1, PageID.19.) The trial court denied relief on May 23, 2008. (Id.) Petitioner sought leave to appeal in the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave on June 11, 2009, and March 29, 2010, respectively. (Id.) The issues raised in Petitioner’s first motion for relief from judgment did not include Petitioner’s claim that counsel failed to communicate a plea offer. At that time, Petitioner reports, he was simply not aware that such an offer had been made. Petitioner claims that he was not idle during the years between the dismissal of the federal petition and the commencement of the motion for relief from judgment. To the contrary, to the extent he was able, despite his imprisonment, he worked diligently on his own and with the assistance of others to obtain information that might show that his incarceration was wrongful. By letters dated May 30, 2003, Petitioner inquired of his counsel, Frederick Milton, and the

prosecutor, Chris Ann Johnson, whether any plea offers had been made. (ECF No. 1. PageID.91– 92.) They did not respond. Petitioner wrote the prosecutor again on January 5, 2009, seeking information regarding plea offers. (Id., PageID.122.) Petitioner’s wife made a Freedom of Information Act request of the prosecutor’s office a month later. The request was broad and the response included many documents. On March 30, 2009, she narrowed the request, specifically asking for a “plea offer letter.” (Id., PageID.123.) The March 30, 2009, response to that request, (id.), included a plea offer letter dated December 31, 1996. It is reproduced below. : Dedember 31, 1996 .

. Mr. Frederick A, Milton _ Attorney at Law 423 3, Wedtnedge Kalamazoo, MI 45007 Re: People v Michael Anthony Simmons File No, B 96-1350 FC : "Dear Mr, Milton: Ag 'you know, I have been assigned to prosecute the above’ matter. I offer the following for your client’s consideration: : communicated on February 25, 1997, and at the trial. That interpretation is absurd. The note that follows the January 8, 1997, note relates to a motion hearing on February 10, 1997. (ECF No. 1-29, PageID.171.) The note after that, dated February 25, 1997, is for the event “jury trial held.” (Id.) The notes for those dates make no mention of a plea offer. The record Petitioner provides does not support his claim that the felony progress notes revealed a new factual predicate.

Properly disregarding Petitioner’s strained interpretation of the note, the factual predicate for his claim was available to him in 2009. He presented a fully developed factual and legal argument of his claim to the Michigan Supreme Court in 2010 and the Sixth Circuit Court of Appeals in 2012. Neither the petition, the brief, nor Petitioner’s many exhibits offer any explanation as to why he waited years after he was aware of the plea offer to present that claim to the state court by way of a proper motion. The felony progress notes that came into Petitioner’s wife’s possession in 2015 did nothing more than confirm the offer that Petitioner already knew about. Moreover, in the meantime, it appears that Petitioner’s trial counsel passed away during the summer of 2011. See https://obits.mlive.com/us/obituaries/kalamazoo/name/frederick-milton-

obituary?id=21934770 (last visited Dec. 5, 2022). Accepting Petitioner’s interpretation of the felony progress notes, and then choosing the latest possible date that Petitioner’s due diligence properly yielded those notes, his claim is several months late. But considering the date Petitioner first became aware of the plea offer that his counsel allegedly failed to pass on to him, and his presentation of that claim to state and federal courts years ago, his claim is several years too late. Either way, Petitioner has failed to comply with the AEDPA statute of limitations and his petition would be properly dismissed. Perhaps in recognition of that result, Petitioner has changed tack in his response to the show cause order. Rather than relying on equitable tolling or the date he purportedly discovered the new factual predicate, he claims instead that the state created an impediment to Petitioner’s filing for habeas relief. (Pet’r’s Resp., ECF No. 8, PageID.21.) The period of limitation commenced, Petitioner argues, on the “date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action . . . .” 28 U.S.C. § 2244(d)(1)(B).

The impediment, Petitioner claims, is the State of Michigan’s refusal to permit Petitioner to access the legal writer program. (Pet’r’s Response, ECF No. 8, PageID.21.) Petitioner reports that the State of Michigan has refused him access because he has a high school diploma. (Id.) Petitioner recounts his attempts to access the legal writer program from 2000 to 2017. (Pet’r’s Aff., ECF No. 8-1, PageID.33–37.)1

1 The MDOC reports that “[t]he Legal Writer Program provides eligible prisoners in Correctional Facilities Administration (CFA) institutions with legal assistance on matters relating to their criminal conviction or conditions of confinement. Only prisoners not represented by counsel who are unable to effectively help themselves by using the law library or other available legal resources are eligible to receive Legal Writer Program services.” MDOC Policy Directive 05.03.116 ¶ S (eff. Apr. 5, 2021). The directive indicates that a prisoner is eligible to receive Legal Writer Program services if he or she meets any of the following criteria: 1. Does not have a verified GED or high school diploma. ^[2]. Does not speak, read, or write English. 3. Has a documented physical or mental impairment or a learning disability that may affect their ability to use the law library to prepare and file a legible and coherent pleading. ^[4]. Is undergoing reception center processing. 5. Is housed in any form of segregation other than temporary segregation. 6. Is housed in a Department operated inpatient medical unit. 7. Is housed in protective housing, or other non-traditional general population housing, that does not allow for direct access to legal research materials as approved by the Deputy Director or designee. Id. ¶ T. Petitioner does not claim that he meets any of the criteria for eligibility. Petitioner does not offer any reason that he, specifically, required access to the legal writer program to adequately access the habeas remedies afforded by this Court. Instead, he argues, generally, that inmates are typically unable to read and understand library material and, therefore, cannot meaningfully access the courts by way of state-provided law libraries. (Pet’r’s Resp., ECF No. 8, PageID.26) (“[I]t is ludicrous to believe that inmates with a mere high school diploma are

able to conduct meaningful legal research and effectively seek redress of their grievances without the aid of professional legal assistance.” (emphasis in original)). Petitioner does not suggest that he is somehow less able to read and understand library material because of some limitation unique to him; rather, he claims only that prisoners generally are not able to read and understand library material. Essentially, Petitioner contends that the State of Michigan’s failure to provide legal writers for the prison population is a violation of the First Amendment right to access the courts. Petitioner cites no federal authority supporting a constitutional requirement that all prisoners be provided access to a prison legal writer program. The Court concludes, therefore, that Petitioner has failed to show a state-created impediment that violates the Constitution.

Moreover, Petitioner has failed to show that his exclusion from the legal writer program prevented him from filing anything. Petitioner’s affidavit indicates that he had some help from another prisoner to file his initial habeas petition. But the affidavit suggests that Petitioner filed the Sixth Circuit motion seeking permission to pursue a second or successive petition on his own. That motion raised the same issue raised in the instant petition. If exclusion from the legal writer program did not prevent Petitioner from filing his Sixth Circuit motion, it did not prevent him from filing his petition either. Additionally, Petitioner had the benefit of retained counsel for years before he filed the instant petition, including more than a year when the period of limitation was running—when Petitioner did not also enjoy the benefit of statutory tolling. While Petitioner was assisted by counsel, it simply cannot be said that he was prevented from filing the petition by his exclusion from the legal writer program. In short, Petitioner has failed to show that the State of Michigan’s exclusion of Petitioner from the legal writer program was an impediment to the filing of the instant petition, he has failed

to show that the exclusion violated his constitutional rights, and he has failed to show that the exclusion prevented him from filing the petition. The alternative period of limitation provided by 28 U.S.C. § 2244(d)(1)(B), therefore, does not render the petition timely. For all of the reasons stated above, the petition is untimely. III. Certificate of appealability The Court must also determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned assessment of

each claim” to determine whether a certificate is warranted. Id. Petitioner’s application is untimely and, thus, barred by the statute of limitations. Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Both showings must be made to warrant the grant of a certificate. Id. Reasonable jurists could not find it debatable whether Petitioner’s application was timely. Petitioner does not contest the Court’s recounting of the procedural history and the relevant time periods. Petitioner does not claim that he is entitled to equitable tolling or that he is actually innocent. Petitioner’s only contention is that the state impeded his timely filing of a habeas petition by excluding him from the legal writer program. For the reasons set forth above, the Court

concludes that Petitioner’s claim is simply wrong. Therefore, a certificate of appealability will be denied. Nonetheless, the Court does not conclude that any issue Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Court will enter an order denying a certificate of appealability and judgment denying the petition with prejudice as untimely.

Dated: December 15, 2022 /s/ Hala Y. Jarbou HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE