UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TAMERRA WASHINGTON, 

Petitioner, Civil No. 2:14-cv-12910

Hon. George Caram Steeh

v. 

 

MILLICENT WARREN,

Respondent.

______________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF

HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

This is a habeas corpus proceeding filed by petitioner Tamerra Washington.

Petitioner was convicted after a jury trial in the Wayne Circuit Court of assault with intent

to commit armed robbery, MICH. COMP. LAWS § 750.89, and armed robbery, MICH. COMP.

LAWS § 750.529. The trial court sentenced petitioner as a fourth-time habitual felony

offender to concurrent terms of 32-to-50 years imprisonment. 

The petition raises two claims: 1) insufficient evidence was presented at petitioner’s

trial to sustain her convictions, and 2) petitioner’s sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishments. The petition will be

denied because Petitioner’s claims are without merit. Petitioner will also be denied a

certificate of appealability. 

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of

Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §

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2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

On April 10, 2010, defendant gave Sarah Turner, a “professional”

gambler, $400 worth of casino chips to gamble. Turner played two hands of

blackjack, but “busted” both hands and lost defendant’s $400. On April 13,

2010, defendant and her girlfriend, Destiny, came to the home Turner shared

with her girlfriend, Suronda Hall. Defendant said, “I’m a bounty hunter. I get

what I want.” Defendant and Turner exchanged words, and defendant

threatened to kill Turner if she did not return the $400. They argued for

approximately five minutes, but defendant and Destiny left after a neighbor

and her children came outside. Later that same day, Turner went to

Greektown Casino. After about 30 to 45 minutes, defendant came in and

tapped Turner on the shoulder and said, “You winning our money back?”

Again, they argued for about five minutes until the casino supervisor spoke

with Turner.

Turner was back at home at approximately 11:30 or midnight when

she heard a lot of noise coming from her front porch area. Defendant was on

her front steps. Suronda Hall was in between the front and screen doors.

Defendant said, “I came to get my money” or “I came to get my mother-f* *

* * * * money.”At this point, Henry Harrison ran up with a gun, which he

pointed at Turner. Defendant ran up the stairs and charged at Turner. She

started punching Turner in the chest and kicking her in the head, face, and

side. Harrison was holding the gun to Turner’s head. Harrison then pointed

the gun at Hall and snatched a chain off of Hall’s neck and took $50 out of

Hall’s pockets. Harrison again turned the gun on Turner, saying, “I’m fixin’ to

kill her now” or “I’m fixin’ to kill this b* * * *.” Defendant said, “Naw, bro, don’t

kill her now. I’m going to give her one more chance to get my money.”Then

Harrison and defendant left.

Over the next three days, defendant drove by Turner’s house

repeatedly. On April 20, 2010, Turner was driving with Hall on I–94 in Detroit.

They got off at Conner to go to Wayne County Community College. Turner

saw defendant and Destiny driving the other way. Defendant turned around

and followed Turner and then came up next to her at a stop light. Defendant

pointed a gun at Turner. Turner thought it looked like the same gun used in

the robbery. Defendant said, “B* * * *, I’m going to get my money from you.”

Turner had reported all of these instances to police, but Turner only

knew defendant as “Amir.” She agreed to a “sting” operation where she

would get defendant to talk to her and have her meet Turner at a location.

Turner told defendant that if she wanted the $400, she should come to a gas

station on JoAnn and Seven Mile. When defendant arrived, Turner identified

her and defendant was arrested. No gun, jewelry, or money were recovered.

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The jury acquitted defendant of the charges of felonious assault, MCL

750.82, and felony firearm, MCL 750.227b, but found defendant guilty of

armed robbery and AWIRA. 

People v. Washington, No. 305604, 2012 WL 6178158, at *1-*2 (Mich. Ct. App. Dec. 11,

2012).

Following her conviction and sentence, petitioner filed a claim of appeal in the

Michigan Court of Appeals. Her appellate attorney filed a brief raising the following two

claims:

I. Did the insufficient evidence presented during the defendant-appellant’s

trial to prove beyond a reasonable doubt that the crimes of armed robbery

and assault with the intent to rob while armed (AWIRA) were actually

committed constitute a denial of the due process of law guaranteed by the

Fifth Amendment to the United States Constitution?

II. Do the sentences of from thirty-two years to fifty years in prison, imposed

pursuant to the defendant-appellant’s conviction for one count each of armed

robbery and AWIRA as a fourth habitual felony offender, constitute a violation

of the guarantee against cruel and unusual punishment provided by the

United States Constitution and the guarantee against cruel or unusual

punishment provided by the Michigan Constitution?

Petitioner also filed her own pro se supplemental brief raising two additional claims:

I. Was Ms. Washington denied the effective assistance of counsel when her

trial attorney failed to call crucial witnesses at trial?

II. Did trial counsel render ineffective assistance of counsel where he failed

to investigate and admit into evidence surveillance tape that may have

supported defendant’s claim of actual innocence?

The Michigan Court of Appeals affirmed petitioner’s convictions in an unpublished

opinion. Washington, 2012 WL 6178158, at *5. Petitioner subsequently filed an application

for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan

Supreme Court denied the application because it was not persuaded that the questions

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presented should be reviewed by the Court. People v. Washington, 829 N.W.2d 204 (Mich.

2013) (table).

II. Standard of Review

AEDPA, which govern this case, “circumscribe[d]” the standard of review federal

courts must apply when considering an application for a writ of habeas corpus raising

constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v.

Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. §’ 2254(d) permits a federal court

to issue the writ only if the state-court decision on a federal issue “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court,” or it amounted to “an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (1)-(2);

Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Under that review standard, mere

error by the state court does not justify issuance of the writ; rather, “the state court’s

[application of federal law] must have been objectively unreasonable.” Wiggins, 539 U.S.

at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409, (2000) (internal quotes omitted)).

Additionally, this Court must presume that the state court’s factual determinations

are correct. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ

of habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be correct.”);

see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives

complete deference to state court findings of historical fact unless they are clearly

erroneous”) (citation omitted).

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The Supreme Court has explained the proper application of the “contrary to” clause

as follows:

A state-court decision will certainly be contrary to [the Supreme Court’s]

clearly established precedent if the state court applies a rule that contradicts

the governing law set forth in our cases . . . .

A state-court decision will also be contrary to this Court’s clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a

result different from [the Court’s] precedent.

Williams, 529 U.S. at 405-06.

The Supreme Court has held that a federal court should analyze a claim for habeas

corpus relief under the “unreasonable application” clause of § 2254(d)(1) “when a statecourt decision unreasonably applies the law of this Court to the facts of a prisoner’s case.”

Williams, 529 U.S. at 409. The Court has explained that an unreasonable application of

federal law is different from an incorrect application of federal law. Under that language, “a

federal habeas court may grant the writ if the state court identifies the correct governing

legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413.

The Supreme Court has continued to emphasize the limited nature of this review.

In its recent unanimous decision in Harrington v. Richter, 562 U.S. 86 (2011), the Supreme

Court reiterated that the AEDPA requires federal habeas courts to review state-court

decisions with “deference and latitude,” and “[a] state court’s determination that a claim

lacks merit precludes habeas relief so long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Id. at 101 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

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III. Discussion

A. Sufficiency of the Evidence

Petitioner’s first claim asserts there was insufficient evidence to sustain her

convictions. Petitioner asserts that the prosecution’s case rested entirely on the credibility

of the victims, Turner and Hall, whose veracity was so undermined that no reasonable juror

could have found her guilty beyond a reasonable doubt. The claim was rejected by the

Michigan Court of Appeals on the merits.

The critical inquiry on review of the sufficiency of the evidence to support a criminal

conviction is

whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt. But this inquiry does not require a court to “ask

itself whether it believes that the evidence at the trial established guilt beyond

a reasonable doubt.” Instead, the relevant question is 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, 318-19 (1979) (internal citation and footnote omitted).

“Two layers of deference apply to the habeas claims challenging evidentiary

sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh,

567 F.3d 191, 204-05 (6th Cir. 2009)). 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 (citing Jackson, 443 U.S. at 319) (emphasis in original).

Second, even 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

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still defer to the state appellate court’s sufficiency determination as long as it is not

unreasonable.” Id. (emphases in original).

Petitioner maintains that Turner and Hall’s accounts of the crimes lacked any

credibility. She points to what she refers to as “a plethora of holes, inconsistencies,

contradictions and variations, combined with a complete and total absence of testimony

from any independent witness.” Pet. Brief, p. 29. Petitioner notes that at least three other

people were said to have witnessed the crimes or parts of the criminal transactions, but

they were not produced by the prosecution. She also notes that no firearms or property

were recovered to corroborate the victim’s claims.

The fact remains, however, that Turner and Hall testified to all the necessary

elements of the crimes. Their testimony was viewed by the jury, who evidently found it

credible enough to convince them beyond a reasonable doubt of petitioner’s guilt despite

the alleged shortcomings. 

A reviewing court does not reweigh the evidence or redetermine the

credibility of the witnesses whose demeanor has been observed by the trial

court. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of

the factfinder to weigh the probative value of the evidence and resolve any

conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992).

Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003); see also Dillard v. Prelesnik,

156 F. Supp. 2d 798, 805 (E.D. Mich. 2001) (stating that “[d]etermination of the credibility

of a witness is within the sole province of the finder of fact and is not subject to review”).

In light of the fact that the established Supreme Court standard requires a court

reviewing the sufficiency of the evidence to view the evidence most favorably to the

prosecution and prohibits it from redetermining the credibility of the witnesses, petitioner

has not demonstrated that the Michigan Court of Appeals decision rejecting her claim on

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the merits was objectively unreasonable. Habeas relief with respect to this claim is

therefore barred under 28 U.S.C. § 2254(d). 

B. Eighth Amendment

Petitioner’s second claim asserts that her 32-to-50 year sentence violates the Eighth

Amendment because her criminal history, though containing nine prior felonies, only related

to two prior criminal episodes, and because she is a “potentially valuable contributor to

society.” Pet. Brief, p. 33. Petitioner also notes that neither victim appeared at the

sentencing hearing, nor could they be located by the authorities after trial. This claim was

also rejected by the Michigan Court of Appeals on the merits.

Under clearly established Supreme Court law, the United States Constitution does

not require strict proportionality between a crime and its punishment. See Harmelin v.

Michigan, 501 U.S. 957, 965 (1991). A sentence that falls within the maximum penalty

authorized by statute “generally does not constitute ‘cruel and unusual punishment.’” Austin

v. Jackson, 213 F. 3d 298, 302 (6th Cir. 2000) (internal quotation omitted). “Federal courts

will not engage in a proportionality analysis except in cases where the penalty imposed is

death or life in prison without possibility of parole.” See United States v. Thomas, 49 F. 3d

253, 261 (6th Cir. 1995).

Petitioner’s sentence of 32-to-50 years for armed robbery and assault with intent to

commit armed robbery was within the statutory maximum of life imprisonment for the

offenses. Thus, the state court acted within its discretion in imposing petitioner’s sentence

and there is no extreme disparity between petitioner’s crime and sentence so as to offend

the Eighth Amendment. See, e.g. Chandler v. Jones, 813 F. 2d 773, 779 (6th Cir. 1987)(life

sentence imposed pursuant to Habitual Criminals Act upon conviction for third-degree

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burglary not cruel and unusual punishment). The Michigan Court of Appeals’ similar

conclusion that petitioner’s sentence does not violate the Eighth Amendment was not

objectively unreasonable. Habeas relief is not warranted on this claim.

IV. Conclusion

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 

Under 28 U.S.C. § 2253(c)(2), 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). To

warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473 (2000). Reasonable jurists could not debate the Court’s

assessment of Petitioner’s claims. The Court therefore DENIES a certificate of

appealability.

SO ORDERED.

Dated: June 2, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

June 2, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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