Simmons v. Gierach

             UNITED STATES DISTRICT COURT                               
             EASTERN DISTRICT OF WISCONSIN                              


TIFFANY LYNN SIMMONS,                                                     

                  Petitioner,                                           

        v.                            Case No. 24-CV-796                

MICHAEL GIERACH1,                                                         

                  Respondent.                                           


                   DECISION AND ORDER                                   


1.  Background                                                          
   Tess White was found in a South Dakota field, having been murdered and then 
burned. State v. Simmons, 

, ¶ 2, 

, 

, 

. Tiffany Lynn Simmons and Shanta Pearson were arrested in 
Colorado following a traffic stop. 

 The record before the court does not indicate how 
Simmons and Pearson were identified as suspects in White’s murder.        
   When investigators attempted to interrogate Simmons, she invoked her right to 
remain silent, ending the interrogation. Simmons, 

, ¶ 4.    

1 The caption is updated to the reflect the current warden of the institution where the petitioner is 
incarcerated. See Fed. R. Civ. P. 25(d).                                  
   Pearson waived his rights but said he would give a statement only if he and 
Simmons were in the same room. Simmons, 

, ¶ 5. Eventually, Simmons 

and Pearson were brought together in the same room.2 The investigators who initially 
attempted to interrogate Simmons did not participate in this second interview, and the 
new investigators again advised Simmons of her rights. Id., ¶ 6. Simmons again stated 

she did not want to answer any questions. Id. This prompted an investigator to respond, 
in a questioning tone, “No?” Id. Simmons then looked to Pearson and asked what he 
wanted her to do. Id. This led to a roughly 20-second exchange between the couple 

during which he said he would not confess without her, and the two eventually agreed 
to talk to investigators. Id. Once they agreed, an investigator told Simmons, “You know 
your rights,” and asked if she wished to give a statement. Id., ¶ 7. She agreed to speak 
and admitted to killing White. Id.                                        

   Simmons moved to suppress her statement on the ground that it was obtained in 
violation of her rights under Miranda v. Arizona, 

 (1966). See Simmons, 2022 

2 The amount of time between Simmons initially invoking her right to remain silent and her being 
brought together with Pearson is unclear. The court of appeals’ decision states that police brought the 
pair together “[a]fter determining that more than two hours had passed from the time Simmons’ 
interview had ended ….” Simmons, 

, ¶ 5; cf. Michigan v. Mosley, 

 (1975) (stating 
that a passage of two hours was a “a significant period of time” following the invocation of the right to 
silence). The facts recounted in Simmons’s appellate brief suggest that days may have passed. She states 
that the initial interrogation attempt ended around 10:00 AM on June 8, 2016. (ECF No. 14-1 at 6.) On June 
14, 2016, an investigator who was executing a warrant for Simmons’s DNA asked if she wished to make a 
statement. (ECF No. 14-1 at 7.) Simmons refused unless Pearson was present. (ECF No. 14-1 at 7.) She 
then states that Pearson was initially interrogated on June 8, 2016, at the same time investigators first 
attempted to interview Simmons. (ECF No. 14-1 at 7.) During that interrogation, Pearson stated he would 
speak only if Simmons was present. (ECF No. 14-1 at 7.) This led to investigators trying to obtain 
approval from supervisors for a joint interrogation, which took some time. (ECF No. 14-1 at 7.) There is 
no indication whether this took hours or days.                            
WI App 49, ¶ 9. After the circuit court denied the motion to suppress, Simmons pled 
guilty to first-degree intentional homicide and kidnapping. Id., ¶ 9. The court sentenced 

her to life in prison without the possibility of release to extended supervision. (ECF No. 
10 at 2.)                                                                 
   Under Wisconsin law, a defendant who pleads guilty does not waive the right to 

appeal the denial of a pretrial motion to suppress. See Wis. Stat. 971.31(10). Simmons 
appealed the circuit court’s denial of her Miranda motion, and the Wisconsin Court of 
Appeals affirmed her conviction. Simmons, 

. The Wisconsin Supreme 

Court denied review on June 22, 2023. State v. Simmons, 

, 

, 

, 

.                                           
   This court received Simmons’s petition for a writ of habeas corpus on June 26, 
2024. (ECF No. 1.) The court screened the petition and ordered the respondent to file an 

answer or otherwise respond to the petition. (ECF No. 5.) The respondent filed a motion 
to dismiss. (ECF No. 9.) The briefing on that motion is complete and the motion is ready 
for resolution. All parties have consented to the full jurisdiction of a magistrate judge 

under 

(c). (ECF Nos. 4, 8.)                                
2.  Habeas Law Generally                                                
   A  person  incarcerated  pursuant  to  a  judgment  of  a  state  court  faces  steep 
obstacles to prevail on a petition for a writ of habeas corpus under 

. 

Wilson v. Neal, 

 (7th Cir. 2024); see also Metrish v. Lancaster, 

 (2013). A federal court may grant relief under § 2254 only if the petitioner shows 
that the state court’s decision was “contrary to, or involved an unreasonable application 

of, clearly established Federal law, as determined by the Supreme Court of the United 
States” or “based on an unreasonable determination of the facts.” 

(d)(1), 
(2); Nichols v. Wiersma, 

 (7th Cir. 2024).              

   To show that a state court decision is “contrary to” federal law, the petitioner 
must  point  to  a  decision  of  the  United  States  Supreme  Court  that  is  materially 
indistinguishable factually but came out the other way. Brown v. Payton, 

 (2005). To show that the state court unreasonably applied federal law, it is not 
enough for the petitioner to show that the state court’s decision was wrong or even 
clearly wrong. White v. Woodall, 

 (2014). Rather, the petitioner must 
show that the state court’s decision was so wrong that there is no room for fair-minded 

disagreement. Id.                                                         
3.  Petitioner’s Claims                                                 
   Simmons presents fours claims: (1) investigators did not scrupulously honor her 

invocation of her right to remain silent, thus violating the Fifth Amendment; (2) the 
joint interrogation of Simmons and Pearson violated the Fifth Amendment; (3) the 
circuit court made a factual error in denying the motion to suppress; and (4) all the 
Wisconsin Supreme Court justices did not participate or vote against reviewing her 

case. (ECF No. 1 at 6-9.)                                                 
   As to Simmons’s last claim, the fact that one justice did not participate in, and 
another dissented from, the decision to not review Simmons’s case is neither irregular 

nor  a  basis  for  federal  habeas  relief.  Procedures  by  which  a  state’s  highest  court 
exercises its power of review are purely matters of state law and thus not cognizable in 
habeas. See 

(a)(1) (stating that habeas relief is available “only on the 

ground that he is in custody in violation of the Constitution or laws or treaties of the 
United States”). Nor has Simmons exhausted her state court remedies with respect to 
this claim or demonstrated that an exception to the exhaustion requirement applies. See 

(b)(1). Accordingly, the court will dismiss the claim.    
   Simmons’s other three claims are all subsumed in the bigger question presented 
in the respondent’s motion to dismiss—whether an alleged Miranda violation presents a 
cognizable federal habeas claim when the petitioner pled guilty.          

4.  Analysis                                                            
   Ordinarily, when a defendant pleads guilty she waives her right to later raise a 
pretrial constitutional claim in a habeas petition. Tollett v. Henderson, 

 

(1973); but see McMann v. Richardson, 

 (1970) (noting that claims that 
a plea was involuntary are not barred); cf. Blackledge v. Allison, 

 (1977) (“a 
prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, 
is  entitled  to  avail  himself  of  the  writ  in  challenging  the  constitutionality  of  his 

custody”). However, if state law allows a defendant to plead guilty and still challenge a 
pretrial decision on appeal, the claim is not waived and the petitioner may raise it in a 
federal habeas petition. Lefkowitz v. Newsome, 

 (1975). As noted, under 

Wisconsin law a defendant does not waive her right to appeal the denial of a motion to 
suppress when she pleads guilty. See Wis. Stat. 971.31(10).               
   An exception exists for claims under the Fourth Amendment. So long as the state 

court “provided an opportunity for full and fair litigation of a Fourth Amendment 
claim, a state prisoner may not be granted federal habeas corpus relief on the ground 
that evidence obtained in an unconstitutional search or seizure was introduced at his 

trial.” Stone v. Powell, 

 (1976). The rationale for categorically excluding 
Fourth Amendment  claims  from  federal  habeas  review—regardless  of  whether  the 
defendant pled guilty or was convicted at trial—is that the prospect of habeas relief is 
too remote to meaningfully foster the deterrent purpose of the exclusionary rule. 

; see also Withrow v. Williams, 

 (1993).           
   The Supreme Court rejected the argument that the Stone rule should apply to 
Miranda claims and that Miranda claims should likewise be categorically excluded from 

habeas review. Withrow, 

; see also, e.g., Smiley v. Thurmer, 

 (7th 
Cir. 2008) (affirming grant of habeas relief regarding Miranda violation). The Court, 
however,  circumscribed  habeas  review  of  Miranda  claims  by  holding  that  Miranda 
protects a defendant only from an unwarned statement being used against her at trial. 

See Withrow, 

 (“Miranda safeguards ‘a fundamental trial right.’” (emphasis 
in original) (quoting United States v. Verdugo-Urquidez, 

 (1990)). If there 
is no trial, there can be no Miranda violation. See Verdugo-Urquidez, 

 (“a 

constitutional violation occurs only at trial”); see also Chavez v. Martinez, 

 (2003) (“it is not until their use in a criminal case that a violation of the Self-
Incrimination  Clause  occurs”);  United  States  v.  Patane,  

  (2004) 

(“Potential violations occur, if at all, only upon the admission of unwarned statements 
into evidence at trial.”); Vega v. Tekoh, 

 (2022) (noting that Miranda’s 
“purpose is served by the suppression at trial of statements obtained in violation of 

Miranda and by the application of that decision in other recognized contexts”).  
   Granted, a court’s decision that a confession would be admissible at trial may 
logically affect a defendant’s decision to plead guilty. See, e.g., Luedtke v. Bertrand, No. 
97-C-889, 

, at *7 (E.D. Wis. Apr. 23, 1998) (noting that a 

Miranda violation “might conceivably affect the voluntariness of his plea”); Mazariegos v. 
Humphreys, No. 07-C-319, 

, at *12 (E.D. Wis. Jan. 22, 2008) 
(noting  that  petitioner  alleged  that  a  Miranda  violation  rendered  his  guilty  plea 

involuntary). After all, a confession “is like no other evidence” [and] “is probably the 
most probative and damaging evidence that can be admitted against” a defendant, 
Arizona v. Fulminante, 

 (1991) (quoting Bruton v. United States, 

 (1968) (White, J. dissenting)), such that a trial may often seem superfluous if 

the prosecution can present a defendant’s confession. However, the Supreme Court 
seemed to reject the notion that an erroneous denial of a motion to suppress under 
Miranda may render a guilty plea involuntary. See McMann, 

.  

   Neither the Supreme Court nor the Court of Appeals for the Seventh Circuit 
appears to have explicitly addressed the precise issue raised by Simmons’s petition, i.e., 
whether state law allowing appellate review of a Miranda claim following a guilty plea 

preserves such a claim for federal habeas review. Stated another way, does an exception 
similar to the one the Court recognized in Lefkowitz apply to a Miranda claim?  
   Many courts have found that, so long as the claim was preserved under state law, 

Lefkowitz allows a habeas petitioner to pursue a Miranda claim following a guilty plea. 
See, e.g., McCarty v. Herdman, 

 (6th Cir. 1983) (granting habeas relief for 
a  Miranda  violation  despite  the  petitioner  having  pled  nolo  contendere);  Karlsen  v. 
Kilpatrick, 

 (W.D.N.Y. 2019) (finding that Tollett did not bar 

the petitioner’s Miranda claim but denying relief on the merits); Vines v. Johnson, 

  (E.D.  Va.  2008)  (finding  that  Miranda  claim  was  preserved  by 
conditional guilty plea); Kestner v. Bell, No. 3:09-0635, 

, at 

*29 (M.D. Tenn. Nov. 18, 2011) (same); Pulido v. Thaler, No. EP-09-CV-462-KC, 

, at *17 (W.D. Tex. Jan. 27, 2011) (finding that Lefkowitz permitted 
consideration of the merits of petitioner’s Miranda claim); Perez v. Ercole, 

, at *12 n.3 (S.D.N.Y. June 22, 2010) (rejecting respondent’s contention that 

petitioner’s guilty plea barred his Miranda claim) (applying Lefkowitz, 

 
and United States ex rel. Sanney v. Montanye, 

 (2d Cir. 1974)). Many such 
cases have arisen in the Second Circuit, where the Court of Appeals long ago held a 

habeas claim related to an “illegal interrogation” was not foreclosed by the petitioner’s 
guilty plea so long as the claim was not waived under state law. Sanney, 

; 
see also, e.g, Jones v. Superintendent, No. 9:15-cv-01152-JKS, 

, 

at *19-20 (N.D.N.Y. Feb. 12, 2018) (applying Sanney to conclude that petitioner may 
pursue Miranda claim in habeas following guilty plea); Douglas v. Capra, No. 9:13-cv-
00035-JKS, 

, at *7 (N.D.N.Y. May 29, 2014) (same); Harris v. 

Bezio, No. 11-CV-0360(MAT), 

, at *9 (W.D.N.Y. Sep. 12, 
2012) (same).                                                             
   However, in none of these cases did the court address the Supreme Court’s 
holdings that Miranda safeguards a trial right and that no violation occurs absent the 

introduction of the statement at trial. See Verdugo-Urquidez, 

; Withrow, 

; Chavez, 

; Patane, 

; Vega, 

. 
   The Court’s rationale in Lefkowitz suggests that, so long as the claim is not waived 

under state law, a Miranda claim should be cognizable in habeas despite the defendant’s 
guilty  plea.  To  hold  otherwise,  as  the  Court  noted,  would  create  “a  trap  for  the 
unwary.” Lefkowitz, 

. A defendant aware that state law permits her to 
plead guilty and still appeal the denial of a Miranda motion may mistakenly believe that 

this law also preserves her opportunity for federal habeas review. On the other hand, a 
defendant who is aware that a guilty plea forecloses federal habeas review may insist 
on a time-consuming and expensive trial to preserve the opportunity for review or 

demand greater concessions from the prosecution to induce her to plead guilty. See 
Lefkowitz, 

.                                               
   It  is  precisely  to  avoid  needless  trials  or  unnecessary  concessions  in  plea 

bargaining that states have allowed defendants to pursue a Miranda claim despite a 
guilty plea. See Lefkowitz, 

. That federal habeas law would stand to 
impose  such  burdens  on  states  is  inconsistent  with  the  principle  of  comity  “that 

govern[s] every federal habeas case.” See Shinn v. Ramirez, 

 (2022). Thus, 
there are compelling pragmatic reasons to apply the Lefkowitz exception to Miranda 
claims. If a state allows a defendant to plead guilty and preserve a Miranda claim for 
appeal,  comity  demands  that  federal  courts  likewise  find  the  claim  cognizable  in 

habeas.                                                                   
   But these policy considerations run into the Supreme Court’s clear holdings that 
Miranda is a trial right, and without the introduction at trial of a statement obtained in 

violation of Miranda a habeas petitioner has no cognizable Miranda claim. Patane, 

. Pragmatic considerations cannot create a claim when the Supreme Court has 
held that none exists.                                                    
   Simmons’s statement, which she alleges was obtained in violation of Miranda, 

was  never  used  against  her  at  trial.  There  was  no  trial  because  she  pled  guilty. 
Therefore, notwithstanding the pragmatic reasons favoring consideration of a Miranda 
claim  under  the  circumstances  presented,  the  court  is  compelled  to  conclude  that 

Simmons has not alleged a plausible Miranda claim, and it cannot consider the merits of 
her petition. See Obregon v. Buesgen, No. 22-cv-1513-bhl, 

, at 
*14 (E.D. Wis. Oct. 29, 2024); Wisham v. Bertsch, No. 1:17-cv-263, 

, at *21 (D.N.D. Nov. 15, 2018).                                    
   Simmons does not argue that her Miranda claim should be recast as some other 
constitutional  claim—for  example,  that  her  plea  was  involuntary  for  some  reason 

beyond merely the denial of her motion to suppress, see Brady v. United States, 

 (1970); McMann, 

, or that she was deprived of the effective 
assistance of counsel, see, e.g., Hill v. Lockhart, 

 (1985).  
   In response to the respondent’s motion to dismiss it appears that Simmons may 

be  arguing  that  her  statement  was  both  obtained  in  violation  of  Miranda  and  was 
involuntary. (See ECF 11 at 2-3.) However, she did not present a voluntariness claim to 
the  state  courts;  her  claim  to  the  state  courts  was  only  that  investigators  violated 

Miranda. (See ECF No. 14-1.) Because she presented only a Miranda claim in the state 
courts, this court is barred from considering any other claim, which would either be 
unexhausted, 

(b)(1), or procedurally defaulted, Shinn v. Ramirez, 

 (2022). Simmons does not present any basis by which any procedural 

default may be excused.                                                   
5.  Certificate of Appealability                                        
   Because the court finds that it must deny Simmons’s petition, it must consider 

whether to grant her a certificate of appealability. See Rule 11, Rules Governing Section 
2254 Cases.                                                               
   [W]hen the district court denies a habeas petition on procedural grounds 
   without reaching the prisoner’s underlying constitutional claim, a COA 
   should issue … if 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 
   whether the district court was correct in its procedural ruling.     

Slack v. McDaniel, 

 (2000); 

(c)(2).      
   Although  this  standard  requires  more  than  showing  merely  that  an  appeal 
would not be frivolous, Miller-El v. Cockrell, 

 (2003), it does not require 
that the applicant show that some judges would grant the petition. 

 Rather, “[t]he 
petitioner  must  demonstrate  that  reasonable  jurists  would  find  the  district  court’s 
assessment of the constitutional claims debatable or wrong.” 

 (quoting Slack, 

). The certificate of appealability “shall indicate which specific issue or issues 
satisfy the showing required by [

(c)(2)]).”               
   The Supreme Court has been clear that a Miranda violation occurs only with the 

introduction of a defendant’s statement at trial. Thus, if a defendant avoids trial by 
pleading guilty, her Miranda claim is not cognizable in habeas. But, as discussed above, 
there are reasonable arguments that applying these holdings to bar a habeas claim 
when a  state allows  a defendant to plead guilty without waiving a Miranda  claim 
undermines the comity principles that underlie much of federal habeas law. And there 
has been no shortage of cases where federal courts have applied Lefkowitz, 

, to consider Miranda claims under similar circumstances.              
   Against  this  backdrop,  the  court  finds  that,  at  a  minimum,  the  question  is 
“adequate to deserve encouragement to proceed further.” Slack, 

 (quoting 

Barefoot v. Estelle, 

, 893 n.4 (1983)). Thus, the court finds that it must grant 
Simmons  a  certificate  of  appealability  as  to  the  question  of  whether  her  petition 
presents a cognizable claim.                                              

   IT  IS  THEREFORE  ORDERED  that  the  respondent’s  motion  to  dismiss  is 
granted. The petition and this action are dismissed. The Clerk shall enter judgment 
accordingly. Simmons is granted a certificate of appealability as to the question of 
whether her petition presents a cognizable claim.                         

   This order and the judgment to follow are final. A dissatisfied party may appeal 
this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this 
court a notice of appeal within 30 days of the entry of judgment. See Federal Rule of 

Appellate Procedure 3, 4. This court may extend this deadline if a party timely requests 
an extension and shows good cause or excusable neglect for not being able to meet the 
30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).      
   Under certain circumstances, a party may ask this court to alter or amend its 

judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment 
under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil 
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot 
extend  this deadline.  See Federal  Rule  of Civil Procedure  6(b)(2). Any motion under 
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally 
no more than one year after the entry of the judgment. The court cannot extend this 
deadline. See Federal Rule of Civil Procedure 6(b)(2). 
    A party is expected to closely review all applicable rules and determine what, if 

any, further action is appropriate in a  case. 
    Dated at Milwaukee, Wisconsin this 8th day of November, 2024. 
                                           EN        H: 
                                        WILLIAM E. DUFFI 
                                        U.S. Magistrate Judge 

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