United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
GEORGE CARAM STEEH, District Judge.
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.
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. § 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.
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 ...