United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS (ECF NO. 1), (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
Jomiah Washington is a state prisoner currently confined at
the Thumb Correctional Facility in Lapeer, Michigan. On July
9, 2018, Washington filed a pro se petition in this
Court seeking a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (the “Petition”) (See ECF
No. 1.) In the Petition, Washington challenges his
state-court convictions for first-degree premeditated murder,
Mich. Comp. Laws § 750.316; assault of a pregnant
individual intentionally causing miscarriage, stillbirth, or
death, Mich. Comp. Laws § 750.90b(a); mutilation of a
dead body, Mich. Comp. Laws § 750.160; and possession of
a firearm in the commission of a felony, Mich. Comp. Laws
Court has carefully reviewed Washington's claims and
concludes that he is not entitled to federal habeas relief.
Accordingly, for the reasons stated below, the Court
DENIES the Petition.
facts underlying Washington's convictions are as follows.
2011, the burned body of a woman named Daborah Young was
found in a field. Young had been fatally shot in the head. At
the time of Young's death, she was approximately 20 weeks
became a prime suspect in Young's murder. He was the
father of Young's unborn child, and several witnesses
said that Washington had threatened to kill Young if she did
not have an abortion. Another witness said that Washington
had also choked Young on a prior occasion.
only witness to directly link Washington to Young's
murder and the burning of her body was a woman named Amanda
Baer. Baer is the mother of Washington's two children. On
June 23, 2011, before the State filed charges against
Washington, Baer appeared at an investigative subpoena
hearing. During that hearing, Baer testified under oath that
Washington had told her that he shot and killed Young, but
the shooting was an accident. Baer further testified at the
investigative subpoena hearing that Washington had admitted
to disposing of Young's body.
long after Baer testified at the investigative subpoena
hearing, Washington was arrested and charged with Young's
death. His preliminary examination was held over four days in
December 2011 and May and June 2012.
testified at the preliminary examination. By that time, she
had a change of heart and no longer wanted to implicate
Washington in Young's death. During her testimony, she
repudiated most, if not all, of her testimony from the
investigative subpoena hearing that incriminated Washington.
More specifically, Baer testified that prior to the
investigate subpoena hearing, a detective investigating
Young's murder, Brian Bowser, had her (Baer) arrested.
Baer said that Bowser told her that if she did not implicate
Washington in Young's death, Bowser would take Baer's
children away from her and force Baer, who was pregnant at
the time, to give birth in custody.
prosecution then confronted Baer with her testimony from the
investigative subpoena hearing that Washington had admitted
to shooting Young and disposing of her body. Baer confirmed
that she gave that testimony, but she said that it was not
true and that she made it up in order to placate Bowser:
Q: The next question I [the prosecutor] asked you [at the
investigative subpoena hearing] was “What was the very
first version of the story that [Washington] told you?”
And your answer was “He was playing with his gun in the
backyard. His gun went off, and he went in the front yard and
there was a girl shot.” Is that true that he -
A: I said that but I only said that because they told me if I
didn't come up with some type of story they were going to
take my kids, put me in jail for accessory to murder that I
didn't do. So I said what I had to say to get out of my
Q: Okay. You said that but it wasn't true?
A: Because me and Detective Bowser - he already went over so
many things with me for those two, three days I was in jail.
I was sitting on hard cement all day. We went over all that
already. That's how I came with my answers because to get
out of my situation, this is what I had to do. I had to go on
a report and I had to say [Washington] did this, that, and
other to get out of it. That's basically what [Bowser]
explained to me, that, “If you say that [Washington]
did that, I don't care if you did it or not, if you say
that [Washington] did it then you're free.” So I
(Prelim. Exam. Tr., ECF No. 8-3, PageID.443, 454; see
also Id. at PageID.455.) At the conclusion of the
preliminary examination, the state court was faced with both
(1) Baer's confirmation that she incriminated Washington
at the investigative subpoena hearing and (2) Bear's
insistence that that incriminating testimony was not true.
The state court then considered the entirety of Baer's
testimony and all of the other evidence presented at the
preliminary examination, and it concluded that there was
enough evidence to bind Washington over for trial.
trial, Baer was called as a witness. However, she invoked her
Fifth Amendment right against self-incrimination and did not
testify. Instead, the prosecution read Baer's testimony
from the preliminary examination into the record.
Importantly, as quoted above, that preliminary examination
testimony included the prosecution reading back to Baer
portions of her testimony from the investigative subpoena
hearing in which she implicated Washington in Young's
death. Therefore, the jury heard both (1) Baer's
statements from the investigative subpoena hearing
implicating Washington and (2) Baer's assertion at the
preliminary examination that those incriminating statements
were false and coerced by Bowser.
April 18, 2013, a jury convicted Washington of all charges.
The state trial court subsequently sentenced him to life in
prison for the murder conviction, time served on the
mutilation of a dead body conviction, eight-to-fifteen years
for the assault conviction, and a consecutive two-year
sentence for felony firearm.
appealed his convictions to the Michigan Court of Appeals,
and that court affirmed. See People v. Washington,
2014 WL 4628883 (Mich. Ct. App. Sept. 16, 2014. The Michigan
Supreme Court thereafter denied leave to appeal. See
People v. Washington, 863 N.W.2d 58 (Mich. 2015).
then filed a post-conviction motion for relief from judgment
in the state trial court. That court denied the motion on May
25, 2016. See People v. Washington, Wayne Cir. Ct.
No. 12-006201-FC (Wayne Cir. Ct. May 25, 2016). The Michigan
appellate courts then denied Washington leave to appeal that
decision. See People v. Washington, Mich. Ct. of
Appeal No. 334514 (Mich.Ct.App. Nov. 23, 2016); lv.
den. 908 N.W.2d 886 (Mich. 2018), reconsideration
denied, 913 N.W.2d 313 (Mich. 2018).
appearing pro se, filed the Petition in this Court
on July 9, 2018. (See Pet., ECF No. 1.) Washington
described his claims, and the standards he believes that the
Court should apply to those claims, as follows:
I. Where [Washington] was denied his constitutional right to
a public pre-trial hearing, habeas relief is appropriate
because the state court's decision was both contrary to
clearly established federal law and involved an unreasonable
determination of the facts.
II. Trial counsel was constitutionally ineffective for (a)
failing to obtain copies of the interviews by police officers
with Amanda Baer so that he could properly cross-examine her
at the preliminary examination, and (b) failing to object to
the pretrial courtroom closure.
III. [Washington's] conviction was predicated on coerced
testimony police-induced, by threats made upon the
prosecutor's key witness in violation of the Fourteenth
Amendment right to due process of law, which rendered the
entire trial proceedings fundamentally unfair. Because the
state courts did not reach the merits of this claim, review
on habeas is de novo and the deference standard of 2254(d)
does not apply.
IV. [Washington] is entitled to habeas relief where the
prosecutor knowingly presented false testimony in violation
of due process of law. Because the state courts did not reach
merits of this claim, the deference standard of AEDPA does
not apply, hence this Court should apply de novo review.
V. Where the prosecution presented testimony that the
shooting was accidental, the state court's finding that
there was sufficient evidence of premeditation involved [was]
an objectively unreasonable application of clearly
established Supreme Court precedent, thus habeas relief is
VI. [Washington] is entitled to habeas where he was denied
counsel [at his district court arraignment] in violation of
the Sixth and Fourteenth Amendment[s] ...