Abigail Simon v. SHAWN BREWER, Warden

NOT RECOMMENDED FOR PUBLICATION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

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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.

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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

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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.

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