Petition for Writ of Certiorari — Jomiah Washington, Petitioner v. Willis Chapman, Warden

Supreme Court briefJul 8, 2020

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IS6INAI

Supreme Court, U.S.

FILED

IN THE

JUL 0 a 2020

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

OCTOBER TERM, 2019

OOMIAH WASHINGTON,

PETITIONER,

WILLIS CHAPMAN,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Oomiah Washington#786873

Pro Se Litigant

Thumb Correctional Facility

3225 Oohn Conley Drive

Lapeer, MI 40446

QUESTIONS PRESENTED

Petitioner Domiah Washington was arraigned at his initial

appearance in front of a Detroit Magistrate (Judge for first degree

murder without counsel. At trial, the State relied on a thirdparty witness's coerced testimony that was manufactured by police

under extreme torture and psychological tactics,

In affirming the denial of his federal habeas petition, the

Court Of Appeals for the Sixth Circuit determined that under

Michigan law, the assistance of counsel at the initial arraignment

is not required. The court then avoided the question of whether

the third-party witness

psychological coercion violated due

process because the record did not support a factual basis of

coercion .

The Questions presented ere:

1 .

Whether The Sixth Circuit Court Of Appeals erred and made

a decision that conflicts with this Court's holding in

Rothgery v Gillespie. 128 Set 2570 (2008) by concluding

that under Michigan law, the Sixth Amendment right to

counsel does not extend to the initial arraignment on

the warrant?

Whether Mr, Washington's due process rights were violated

when the State made use at trial of a pregnant witness's

statement extracted by police through egregious torturetype-tactics and psychological coercion? And, Can the

reviewing court on habeas review, rely on the existing

trial court record as a factual basis to determine the

coercion?

DISCLOSURE OF CORPORATE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner makes the

fallowing disclosure:

1 .

Is said party a subsidiary or affilitate of a publicly-owned

corporation?

No .

Is there a publicly-owned corporation, not a party to the

appeal, that has financial interest in the outcome?

No .

Respectfully submitted,

/s/Jomiah Uashington#786873

Thumb Correctional Fac.

3225 3ohn Conley Drive

Lapeer, MI 48446

TABLE■OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX;A

Gpinion/Order denying motion for certificate of

appealability. Jomiah Washington v Willis Chapman,

No#1 9-2454 , decided April 24 2020 .

APPENDIX :B

Opinion denying petition for writ of habeas corous.

Washington v Chapman, 2019 US Diet Lexis 198972'

decided November 18, 2019,

’

APPENDIX :C

People v Washington, 913 NW2d 313(Mich 2018), order

denying motion for reconsideration.

APPENDIX:D

People v Washington, 908 NW2d 8B6(Mich 2018), order

denying application for leave to appeal from the

Michigan Supreme Court.

APPENDIX:E

People v Washington, Mich App No#334514, order denying

application for leave to appeal from the Michigan

Court Of Appeals decided November 23, 201 6

APPENDIX-F

Opinion and Order denying state court motion for

relief from judgment decided May 25, 2016.

APPENDIX :G

People v Washington, 497 Mich 1027(Mich 2015), order

denying application for leave to appeal from the

Michigan Supreme Court.

APPENDIX :H

People v Washington, 2014 Mich App LEXIS 1 726,

unpublished opinion from the Michigan Court Of Appeals,

dated September 16, 2014.

APPENDIX :I

State Court docket entry

APPENDIX : J

Excerpted Trial Testimony of Amanda Baer

APPENDIX :K

Excerpted Trial Testimony of Detective Brian Bowser

TABLE OF AUTHORITIES

Barron v Maclaren, 2015 WL3464117(ED Mich 2015),.........

.1 3

Blackburn v Alabama, 361 US 1 99 (1 960)..............................

Bradford v Johnson, 354 F Supp 1331(ED Mich 1972)

...

___ 20

Bradfoed v Michigan, 349 US 1022 (1969)............................

Brewer v Williams, 430 US 387(1 977).....................................

8, 11

Cullen v Pinholster , 563 US 1 70 (2011 )

Crane v Kentucky, 476 US 6B3 (1986)

Dimmick v State, 473 P2d 616 (1970)

Doyle v Scutt, 347 F Supp2d 474(ED Mich 2004),

Douglas v Woodford, 316 F3d 1079(9th Cir 2003)

Greene v Fisher, 132 Set 38 (2011 )........................

•Jackson v Dsnno,

(1 964).

Oohnson v Zebst, 58 Set 1 01 9 (1 938)

Lego v Tuiomey,

378 US 368

404 US 477

(1 972)

17, 18

Lundbwey v Buchkoe, 389 F2d 154(6th Cir 1968)

LaFrance v Bohlinger, 499 F2d(1st Cir 1974),.

19, 20

Malinski v New York, 324 US 401 (1945).............

Meriweather v Burton, 2015WL7450068(6th Cir 2015)

McNeil v Wisconsin, 501 US 171 (1991)........................

Michigan v Jackson, 106 Set 1 404 (1 986)....................

8, 9

Powell v Alabama, 287 US 45 (1973)

People v Underwood,

389 P2d 937(Cal 1964)

People v Washington, 2014 Mich App LEXIS 1726

People v Washington,

497 Mich 1027(Mich 2015),

. 6

People v Washington, 908 NW2d 886(Mich 2018)

. .6

People v Washington, 913 NW2d 313 (Mich 2015)

;■

iii

United States v Chiavola, 744 F2d 1271(7th Cir 1984).

.20

United States v Fredrick, 586 F2d 470(5th Cir 1978)..

United States v Hodges, 208 F3d 227 (10th Cir 2000).,

. .20

Rogers v Richmond

365 US 534 (1961)..._____

Rothgery v Gillespie, 128 Set 2578 (2008)......... . . . 8, 9 , 11, 13, 14

Samuel v Frank, 525 F3d 566 (7th Cir 2008)

Wilcox v Ford, 813 F2d 1140 (11th Cir 1 987)...

Wiggins v Smith, 539 US 510 (2003)....

Williams v Taylor, 529 US 362 (2000).................

...17

Court Rules

Supreme Court Rule 10(c)

2, 14

Supreme Court Rule 13(3)

Statutes

Anti-Terrorism And Effective Death Penalty Act(AEDPA)

28 USC 1254(1).............................................................

2, 17

Michigan Compiled Leu (MCL) 750.31 6 ...................................

MCL 750,90b(a)

..............................................

MCU 750.1 60 .............................

Miscellaneous

57 NW U.L. Rev. 549, 552 (1962)

OPINION BEL Dili

Petitioner prays that a writ of certiorari be issued to

review the judgment below:

[x] For cases from Federal Courts:

The opinion of the United States Court Of Appeals for the

Sixth Circuit appears at Appendix:A attached hereto and is

unpublished .

The opinion of the United States District Court for the

Southern District of Michigan appears at Appendix;B attached

hereto and is unpublished.

JURISDICTION

On November 18, 2019, the United States District Court for

the Eastern District of Michigan, Southern Division, Honorable

Matthew F. Leitman, denied Petitioner Oomiah Washington's petition

for a writ of habeas corpus under 28 USC § 2254. On April 24, 2020

the United States Court Of Appeals for the Sixth Circuit denied

the timely motion for a certificate of appealability.

The instant petition for a writ of certiorari is timely filed

within the 90-day time limitation from the Sixth Circuit's Order/

Opinion denying the motion for a certificate of appealability.

Supreme Court Rule 13(3). Furthermore, this Court has jurisdiction

to entertain this petition pursuant to 28 USC 1254(1) and Supreme

Court Rule 10 to review the court of appeals for the Sixth Circuit

decision by writ of certiorari.

CONSTITUTIONAL AND.STATUTORY PROVISIONS INVOLVED

Amendment.VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses in his favor, and to have the

assistance of counsel for his defence.

Amendment.XIV

All person born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No state shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States, nor shall any State

deprive any person of life, liberty, or property, without due

process of law, nor deny to any person within it jurisdiction the

equal protection of the laws.

Amendment V

The Fifth Amendment to the United States Constitution provides

in relevant part: "No person shall . . . be deprived of life,

liberty, or property, without due process of law".

STATEMENT OF-THE CASE

In May 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 pregnant.

Petitioner Oomiah Washington (hereinafter Washington) became

a prime suspect in Young's murder because he was the father of her

unborn child, and several witnesses said that Washington had

threatened to kill Young if she did not have an abortion1 . (II,

1 67-1 81 ) . Another witness said that Washington had chocked Young

on a prior occasion. (II, 183-197).

There was physical evidence presented by'the prosecution but

none linked Washington to the murder. (Ill, 9G-108)(V, 16Bf-207) .

The 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 that Washington had told her that he shot and killed a

girl, but the shooting was an accident.

Based on Baer s testimony from the investigative subpoena

hearing (which was not subject to cross-examination) Washington

was arrested and charged with Young's death. On Oune 30, 2011

1 .

Trial Transcripts from April 1, 2013 through April 18, 2013. The

transcripts are referenced from Volume I through XI.

Washington was arraigned in Michigan's 36th District Court on

first degree murder charges (amongst other charges) and he was not

represented by an attorney. Appendix:I .

The court appointed counsel ir* Ouly 2011 and the preliminary

examination hearing was held over four days in December 2011 and

May and Dune 2012. At the preliminary hearing, Baer explained

under oath that prior investigative hearing testimony implicating

Washington was perjured and manufactured by detective Brian Bowser

in exchange to be released from jail. Baer testified that Bowser

arrested her without a warrant, denied her multiple request for

an attorney, told that she would give birth to her child in jail

and would spend the next 25 years in prison if she did not falsely

implicate Washington in the murder. (\l 90-110)

In a pre-trial motion to quash Baer s coerced testimony from

being admitted at trial, trial counsel argued that the prosecutor

should not be allowed to introduce Baer s admittedly perjured

testimony because it was manufactured by Bowser. The trial court

denied counsel's motion (over objection). September.21, 2012 pretrial hearing.

At trial, counsel re-newed his objection regarding the

inadmissiblity of Baer's testimony. Baer eventually invoked the

fifth amendment right against self-incrimination due to her

professed perjured testimony. (Ill, 29-57). In response, the state

moved for the admission of Baer's false testimony to be read from

the transcript as substantive evidence. The jury convicted on all

charge s :

first degree

murder MCL 750, 316,

assault of a

intenti °nally

Pregnant

causing miscarri a

8s/stiUhirth/[)eath

750.90b(a),

MCL

mutilation of a dead

b°dy MCL 750. 1 60 ,

of a firearm during the

and

Possession

commission of a

felony

MCL

Jury return said

7 S 0,2 2 7 b . The

verdict °n April 1e

w f

201 3 .

Washington

appealed his

convictio

1,5 *° th0

Curt 0f

Appeals, and that

court affirmed

”” September 16, 20u _

Uashingt on, 2014 Mich

People v

APP LEXIS.

Hlehiamn

Court thereaft

Supreme

®r denied leave to

appeal.

PeoPi

Mich 1027

v Washinnt on, 497

(Mich 2015) .

Append* x :G .

individual

Washington

then filed a post-

conviction motion f0r

from judgment

relief

in the state trial

c°urt, which

25, 2016.

was denied on May

Appendix :F .

Washington then filed

a timely

for leave to

application

appeal in the

Michigan Court Of

Appeals, but relief

was denied on

November 23

201 6 .

.People y li)ash<n1t

Order No#334514.

Mich flpp

He then filed a

timely

applicatio

appeal in tho

n for leave to

Michigan Supreme

Court which

order . Peopi e .

was denied

hy standard

V <Jashlnn4

9°8 NW2d SS6 (Mich

.A p p e n d i y r g _

2015 )(unpubli

A motion f0r

shed.

reconsideration was s

also . People

ubsequently denied

v Washingt

on> 913 WQ/2d

313 (Mich 2015) .

Appendix • r. .

Washington then filed

a Petition for

a writ of habeas

under 28 (JSC 2254.

corpus

On Novemb er 1 e ,

2019,

Court

United States

Cudge Matthe

Oistrict

u F. Leitman

denied

the

certificate Qf

Petition, denied a

appealabilit y but

granted

Permission to appeal in

forma Pauperies. klashinotnn

.^Chapman . 2019 US Dist Lexis

196972,

Washington then filed

a timely motion for a

certificate of

appealability in the

United States Court Of Appeals

for the Sixth

Circuit which denied the

motion on April 24, 2020.

Washington v

Chapman, No .1 9-2454 .

Appendix:A and Appendix ; R .

Washington now seeks a writ of

certiorari .

REASONS FDR GRANTING THE MUTT

And Fourt®enth^AiiendBent^Uhdr8tVlol0tBd^Hh*,tS|li*,l^8C Th" SI,,th

cco°n^rr?nrl;:.d

Th°

«78 (200b) , And ?h,nng*q;[rffi;g"y,»,““;"n;n. 128 Set

To Rectify The ViolationqMh»nD*rjXCB *nal**l* In Order

A P.r se Prejud”" „“^r"^"t£2i£f2« »■? N.,er Est.bUsh.S

Lower Circuit And Di.trict Courts

Vacate,

Conflict Between The

A) This Court announced

unambigously that the

guaranteed by the Sixth Amendment applies right to counsel

at the first

appearance before a judicial officer

which

a criminal

defendant is told of the formal

accusation

against

him

and restrictions are imposed

on his liberty.

This Court has long

set clearly established precedent that

stood for the

proposition that the right

to counsel applies at

the first appearance before

a judicial officer at which a

defendant is told of the formal

accusations against him and

restrictions are imposed

on his liberty. Rothgerv v Gillespie.

128 Set 2578,’• 2581

20DR}

“oi (^

uubj. This court made

clear to Michigan

courts in previous holdings that

a defendant's initial appearance

before a Magistrate Judge,

marks the initial initiation of

adversary judicial

proceedings that trigger attachment of the

Sixth Amendment right to counsel.

SeB Mohigan v Jackson. 106 Set

1404 (1986)(overruled on other

grounds), see also Brewer v

Williams, 430 US 387

398-399 (1977)f and McNeil

V Wisconsin. 501

US 1 71, 1 80-1 81 (1 991 ). This court has

never waivered in it's

holdings that counsel should be afforded

at arraingment. Hence,

this Sixth Amendment rule is not

mere formalism, but recognition

of the point at which the government has

committed itself to

prosecute, and the accused finds himself

faced with the

prosecutorial forces of

organized society, and immersed :

in the intricacies

of substanti ve and

procedural criminal 1 a of,

Rothqerv . supra at 198,

in Jackson supra, this

court was asked

to revisit the precise

question of whether the right to

counsel attaches st the initial

appearance end thia

court firmly had

no trouble affirming its

holding a second time

around. Rothgerv. 554

US 201. in response,

Michigan Attorney General

argued that in Michigan,

any person

charged with a felony, after

arrest,

must be brought before a

Magistrate without

unnecessary delay for

his initial

arraignment,

Michigan explained

• • there is also a second

arraignment in

Michigan procedure at which

time defendant has his first

oportunity to enter

a plea in a court with

jurisdictio n to render

3 fi°al decision in a felony case.

Michigan contended that

only

the latter proceeding, the

arraignment on the informati

on should

trigger the

Sixth Amendment right to

counsel, But this court

"flatly rejected

the distinct!

on between initial

arraignment and

arraignment on the

indictment, the States

argument being untenable

in light of the clear

language in our decision

s about the

significance of arraignment"

■ Jackson.

US 625, Rothgerv. 554

US 202.

in Brewer

supra, the defendant

surrendered to the police after

warrant was out for his

arrest on a charge of

abduction. He was

arraigned before the Judge

on the outstanding

warrant without

counsel. This court

indicated that

Brewer's initial

arraignment

required defendant'

s Sixth Amendment right to

counsel ,

And in McNeil

supra, the Court reaffirmed

that "[tjhe Sixth

Amendment right to

counsel attaches at the first formal

proceeding

against an accused",

the court also observed that in

most states

free counsel is made available at

that time. McNeil. 501 US 1801 81 .

Court of Appeals tfor°tho8Sixth'!cl '"’t*1’!! Unlted s*«*ea

Important federal Question i.,* Clrcutt h“’ decided an

relevant declaion. of

Court"fl!

:!onm<:t* "ith

to counael ot the

*■»• right

In his post-conviction motion for relief from

judgment,

Washington made a Sixth Amendment

challenge arguing that he was

entitled to relief because he

was deprived of his right to

counsel at his initial arraignment.

The state trial court denied

relief because the

initial arraignment was not considered

critical stage where

legal representation is required. Appendix:F.

(State Court Opinion ) .

Although Washington relied

on this court's

precedent in Rothgery supra, the state

court relied on Michigan

Court Rules to deprive counsel

: "[T]he court

rules are clear that

a defendant may or may not be

represented by counsel, and have

laid procedures to deal with

either scenario. Therefore,

defendant s argument must fail"

• Opinion at 12

Washington then filed his

application for habeas relief in

federal court under 28 USC 2254

(after first exhausting his

claims throughout the state courts) .

In rejecting his claims,

the federal district court

erroneously applied a prejudice

analysis as opposed to

a review under the lens of 2254(d)(1) when

it concluded that: "(EJven

assuming arguendo that Washington

was

denied the assistance of counsel at his arraignment

on the

warrant, he is not entitled to federal

habeas relief because he

has not shown how the absence of

counsel at that proceeding

caused him prejudice". Appendix:n, .

Washington then filed a timely motion for

a certificate of

appealability presenting the same claim and the Sixth Circuit

Court Of Appeals determined that there was

no Sixth Amendment

violation because, under Michigan law,

an arraignment is not

critical stage that requires counsel.

Appendix:A .

1" Ind Fou^eenihVf °aunsBl

relief under

the Sixth

Fourteenth Amendment absent a prejudice requirement.

In Rothgery supra, this court made clear that

the Sixth

Amendment right to counsel attaches at the initial

arraignment

and did not require a prejudice analysis nor did it

necessarily

require a critical stage showing in order to find

a violation.

The issue in Rothgery was whether Texas

's article 15,17 hearing

marks the point for counsel,

and this court agreed that it was .

Just like Texas 's article 15.17 hearing,

Michigan has an initial

arraignment that initiates adversary judicial

proceedings that

trigger the Sixth Amendment right to counsel . See Oackson

supra

at 629. Again, there was

no prejudice requirement.

This court s conclusions in Rothgery,

Brewer, Jackson and

McNeil

are not vague regarding prejudice - its absent: Brewer

expressed » no doubt" that the right to

counsel attached at the

initial appearance. 430 US at 399.

Jackson said that the opposite

result would be "untenable". 475 US 629 .n .3 .

Me Neil reaffirm the

Sixth Amendment right to counsel attaches at the first formal

proceeding. 501 US 173.

Rothgery clearly held defendants are

entitled to counsel at the initial arraignment in front of

Magistrate. 554 US 201. In the fourteenth amendment

context, this

court said that an accused in a capital case requires the guiding

hand of counsel at every step in the proceedings against him. See

Powell y Alabama. 287 US 45, 69 (1973). Hence, this court did not

necessarily mandate a prejudice showing in order to determine

Sixth Amendment violation.

Accordingly, this court is now faced with a similar question

as that presented in Rothgery: whether the initial arraignment

in Michigan triggers the Sixth Amendment right to counsel and

whether a criminal defendant in that

context must also demonstrate

how he was prejudiced in order to establish

relief under the

Constitution? Fundamental fairness answers yes in part and no in

Part.

This court's conclusion in Dackson was driven by the same

considerations the court had endorsed in Bretuer ■ by the time a

defendant is brought before a judicial officer, is informed of a

formally lodged accusation, and has restrictions imposed on his

liberty in aid of the prosecution, the State's relationship with

the defendant has become solidly adversarial. This simply means

that the Sixth Amendment attaches when the judicial proceedings

commence (why should a defendant in a serious offense case have to

stand before a judge without counsel?).

This court

holding in Rothgery bias narrow and did not

mandate a prejudice requirement 90 the lower courts that applied

a per se prejudice analysis did so outside the parameters of

Rothgery which was in error. Indeed, the deprivation of counsel

stands as a jurisdictional bar to a valid conviction and hindges

on life or liberty (due process), and therefore prejudice is

presumed . Johnson v Zebat, 5S Set 1019 (1938),

The Sixth Circuit for the United States Court Of Appeals and

the Michigan state courts that decided this issue by requiring

prejudice requirement or a showing th,at the proceeding must be

critical stage conflicts with relevant decisions of this court.

2. The lower courts decisions regarding the right to counsel

at the Initial arraignment is contrary to this court's

holdings. Thus, the issue should be settled by this court.

The state trial court denied relief under the assumption that

Michigan Court Rules trumps clearly established precedent from

this court. Appendix :F . The federal district court denied habeas

relief because it determined that Washington could not demonstrate

prejudice and it came to that conclusions by relying only on

district court cases, not holdings from this court. The district

court cited Barron v Maclaren, 2015 WL 3464117 *1(ED Mich 2015)

(Petitioner not entitled to relief because he did not allege harm

by the absence of counsel at his initial arraignment); Meriweather

iijurton, 2015 WL 7450068 *4(6th Cir Nov 24, 201 5)(Petitioner not

entitled to relief on his Sixth Amendment right to counsel

claim

because in Michigan initial arraignment do not require an attorney

to be present); P£Vlig_y_Scutt, 347 F Supp 2d 474,

481(ED Mich 2004)

(same) , The Sixth Circuit relied

°n ^undberg y Bucbkoe, 389 F2d

1 54, 1 58 (6th Cir 1 968) ,

All these cases conflict with clearly

announced decisions from

this court. 5eB j!°thgery v

Michigan «

Brewer

V-Williams and McNeil,v Wisconsin.

-___ L- Neither of these holdings

mandated a prejudice showing in order to be entitled

to relief

when counsel was not afforded at the

arraignment. And since

Washington specifically relied on

the aforementioned precedent to

support a basis for relief and the lower

courts respectively made

decisions that conflict with relevant precedent from

this Court,

certiorari should be granted.

Supreme Court Rule 10(c).

’;;;assv

precedent

adjudication ran contrary to it for purposes of court's

granting

habeas relief.

In reviewing his habeas

corpus application and the motion for

a CDA , neither the federal district

court nor the sixth circuit

determined whether the state court's adjudication

was contrary to

Rothgery v Gillespie. supra when denying relief.

Indeed, Washington argued that the state court's decision

ran contrary to clearly established federal law,

namely , the

Rothgery-holdino when he was denied counsel

at the initial

arraignment. There was no dispute that

counsel was not afforded

(Appendix : ), so the only inquiry

was whether the United States

Supreme Court had clearly established that counsel

should be

afforded, and if it was clearly established,

whether the state

court's adjudication was contrary to it

and if so whether, under

2254(d)(1) habeas relief should be granted.

See Greene v Fisher.

132 Set 38, 44 (2011)(a federal

court reviewing habeas claims

must first look at the clearly established law at the time

of the

constitutional violation), Cullen v Pinholster. 563 US 170, 182

(2011)(habeas court instructed to

measure state court decisions

against the Supreme Court s precedent

as of the time the state

court renders its decision).

Here, neither courts (Sixth Circuit or District court)

even

made reference to Rothgery

, when it rejected relief, instead it

relied on other decisions

from lower courts.and never relied on

precedent from this court to determine whether habeas

relief was

appropriate under 28 USC 2254(d)(1),

This court s holding in Rothgery

supra, is not merely a

generalized statement or dicta, but a clearly established

requirement that specifically instructs

courts to provide

criminal defendants with counsel at the initial

appearance. See

Rothgery . There was nothing ambiguous about

the holding in

Rothgery. the lower courts simply failed to review

the claim

against the backdrop of Rothgery. Washington

was not afforded

counsel at the initial

arraignment, Rothgery had clearly

announced the sixth amendment right to counsel and the state

court made a decision contrary to Rothgery.

Habeas relief may be available when the

state court's merits

adjudicatio n resulted in

a decision that uas

contrary to, 0r

unreasonable application of

clearly established

federal lau as

determined ,by the United States

Supreme Court. See

Wiliams v Taylor,

529 US 362 (2000).

Had the district court or

the sixth circuit applied

these AEDPA

provisions, Washington would

Have been

entitled to habeas

corpus relief.

involved an

II.

“« Tortured *nd Co^eed ^

Detroit Police Detective.

F 1

T'1’* «*"•■■

Sta*a«"ents By A

By erroneously concluding that Washington did

not have

factual basis to support the

argument that the witness was indeed

coerced the Sixth Circuit

avoided the important question of

whether under de novo review Washington

s constitutional due

process rights were violated.

While this Court has not

expressly ruled that a state's use

of coerced third -party statements is

unconstitutional, this was

irrelevant for purposes of Antiterrorism

and Effective Death

Penalty Act (AEDPA) because the state

courts never adjudicated

this claim

on the merits, and under situations as such,

de novo

review was the appropriate standard to

review the claim. Wiggins

v Smith. 539 US 510, 534 (2003).

A) This

that a state^Cse of^oercelTthi^d01*^^to BXPras®ly rule

unconstitutional as other

frd“partV statements are

»ith only a split decision frozen. "roJn’dy acko“led9«.

This Court has

repeatedly held that "a defendant in a criminal

case is deprived of due

process of law if his conviction is

founded, in whole or in part,

upon an involuntary confession1'.

Lego v Twomev. 404 US 477, 482-85 (1 972)

* see also Crane v

Kentucky. 476 US 683, 687-88 (1 986).

This is so for two primary

reasons . First, confessions obtained

through violence or threats

are inherently unreliable.

^ee ^acKson y Denno. 378 US 368, 38586 (1964)(noting that

involuntary confessions are barred in part

because of the probable

unreliability of confessions that are

obtained in a manner deemed

coercive). Second, and most

importantly, the methods used to

secure coerced confessions are

repugnant to society and the

Constitution and violate a sense of

fundamental fairness. Rogers y Richmond.

365 US 534,

(noting that the methods used to

540-41 (1961 )

extract coerced confessions

offend an underlying principle in

the enforcement of our criminal

law: that ours is an accusatorial and

not an inquisitorial system ,

a system in which the State must establish

guilt by evidence

independently and freely

secure); Lego, 404 US at 484-85(The use

of coerced confessions, whether true or false,

is forbidden

because the method used to extract

them offends constitutional

principles); Blackburn v Alabama.

361 US 199, 206-07(1960)(In

cases involving involuntary

confessions, this Court enforces the

strongly felt attitude

of our society that important human values

are sacrificed w h b r e an agency of the

government, in the course

of securing a conviction, wrings a confession

out of an accused

against his will) .

The rationales for banning the

use of coerced confessions

apply with equal, if not greater2,

force in the context of coerced

^ The

coercedkstItementsaoJigInatesafrombaytMiHhtBned 'Jhen the

who is subjected to third don

, . *bird-party: An accused

fro. hia i nher antisense'of ^gelf6 int"r°Sa t ion -HI derive

-preservation some power to

resist the coercion, But the witness

who

of anything and has nothing to lose by hismay not be accused

testimony. . .

will be

f lie to escape tha pressure than

will the ""!

accuaed himself. 57Nu. Ul.Rev. 549, 552-53((1962).

third-party statements, As Chief Justice Warren

recognized it is

simply not "relevant” that coercion is

exerted against a Witness

rather than the accused

Bradford v Michigan. 394 US 1022, 1023

(l969)(Wa rren, C3.,

dissenting from denial of certiorari);

see

also Malinski v New York. 324 US 401,

430-31 (1945)(Rutledge, J.,

dissenting)(Due process does not permit

one to be convicted upon

his own coerced confession.

It should not allow him to be

convicted upon a confession

wrung from another by coercion. A

conviction supported only by such

a confession could be but a

variation of trial by ordeal). In the words of

the California

Supreme Court:

[A] [coerced] statement by a witness

nr.

than one by a defendant i+a

? f is no more trustworthy

in conviction ,.uW bl'i,

* ‘“‘"I *"

to aid

sense of fair nlnu 9nri a

*ve

community’s

the exclusion of involuntar"^* !"d itS 8><clusil>". like

-old serve to

TstTf'’E "! '

during the guestioning of person: ll

^Be ^e°Ple v Underwood. 399 P2d 937, 943 (Cal.

1964); Dimmlck v

State. 473 P2d 616, 619-20 (Alaska

1970)(observing that the human

values impinged upon by the use of

coerced confessions may be as

much involved and in need of protection when

an involuntary

statement is used to convict

one not coerced into making it).

Indeed, "methods offensive when

used against an accused do not

magically became any less so when

exerted against a witness".

laFrance v Bohljnger. 499 F2d 29,

34 (1st Cir 1974), Consequently,

due process will not tolerate

the use of egregiously coerced

third-party witness statements to

secure a conviction at trial.

Numerous Courts Of Appeal, have indicted

499 f2d et 31,-35 (deeming it

as much . LaFrance.

unthinkable’ that statements that

are obtained through conduct belonging only in

a police state

should be admitted at the

government’s behest in order to bolster

its case); United States v Fredricks,

586 F2d 470, 481 (5th Cir

1978)(The use of statements derived

through shocking and

intentional police misconduct offends the

fundamental fairness

essential to due process of law); Bradford

—v Johnson. 354 F Supp

1331(ED Mich 1972), affirmed, 476 F2d 66 (6th Cir

1973)(affirming

the grant of habeas relief where a defendant

was convicted by a

state’s knowing use of coerced

testimony obtained by torture,

threats and abuse of a witness in

custody); United States «

Chiavola. 744 F2d 1271,

1273 (7th Cir 1984)(A violation of another

person's fifth amendment rights may rise to the

level of

violation of his rights to a fair trial)

* Douglas v Woodford. 31 6

F3d 1 079, 1 092 (9th Cir 2003)(Illegally obtained

confessions may

be less reliable than voluntary

ones, and thus using a coerced

confession at another s trial

can violate due process); Wilcox v

f°rd, 813 F2d 1140,

1148 (11th Cir 19B7)(The admission at trial

of improperly obtained statements which

results in

fundamentally

unfair trial violates a defendant'

s Fifth Amendment right to a

fair trial); and United States -v Modoes.

208 F3d 227, at *1(10th

Cir 2000)(A defendant s due

process rights are violated where a

witness is coerced into making false

statements and those

statements which are admitted at the defendant

s trial).

Despite this extensive

case law, the Seventh Circuit opined

that 'exclusion

of a coerced third -party statement would

require

the creation of new law rather than

the application of an existing

principle, Samuel v Frank. 525 F3d 566,

570 (7th Cir 2008). The

Seventh Circuit observed that

certain courts, "including ours, do

not think that there is an

exclusionary rule, as such, applicable

to third party statements . p

Id at 569(internal citations

omitted). This view conflicts with the views of

other courts of

appeals and cannot be squared with this

Court a decisions in Lego,

Jackson. R°gers■ and Blackburn.

This Court' s coerced-confession

jurisprudence necessitates the

conclusion that use of a

coerced witness statement violates

defendant's due

process rights. This Court should

grant certiorari

to clarify that, contrary to the Seventh

Circuit's holding in

Samuel y Frank. supra .

B) The state court record demonstrates

that Washington's due

process rights were violated.

The Detroit Police secured an

arrest warrant for Washington

based solely

on coerced statements obtained by Amanda Baer.

Baer

testified at an Investigative Subponea

Hearing that Washington

admitted to accidentally shooting

a girl. However, when Baer got

to a safe place,

she admitted that Detective Brian Bowser had

manufactured her statements and aiding her

in giving false

testimony under oath ,

At the preliminary hearing,

Baer informed the Magistrate

Judge that she was illegally arrested,

denied an attorney upon

request, pregnant,

bleeding in pain,

threaten into making false

statements against Washington under

oath, told that she would give

birth in jail, and that she would

spend 25 years in prison if she

did not say what Bowser told her to

say. (\j 98-110). Appendix il

Bowser testified that he did

not coerce or threatened Baer to

testify. According

to Bowser, he interviewed Baer

twice: The first

interview, Baer denied that

Washington made incriminating

statements to her,

and although the interview lasted for 90

minutes, Bowser failed to

take notes and the recording was

allegedly no longer available,

(VII 140-1 41). The second interview

however,

“0S recorded, but this tntervieu is when Baer

gave

inculpatory statements

against Washington. (V,

81 -112, 122-1 59) .

Appendix : «•

Trial counsel filed

a pre-trial motion

to Quash the Information

or either to suppress Baer's

testimony from being admitted at the

trial because it was coerced by Bowser.

A hearing was held on

September 21 , 2012, the trial

court heard respective

arguments

and denied the motion .

After his direct appeal, Washington filed

a post-conviction

motion arguing that

bis Constitutional due process rights

were

violated by the shockingly admission

of Baer 1 s coerced testimony.

This Court should also keep in mind

that Baer exercised her fifth

amendment right not to testify at the

trial because she had

admitted that her under oath

testimony at the investigative

hearing where she falsely

accused Washington of confessing was

manufactured by Bowser, so

any further testimony in that

regard at

perjury. The trial

court appointed her counsel,

snd she invoked the fifth

amendment. (III 29-57) .

Baer's testimony

was therefore

read to the jury from

the prior transcript.

the trial would be

Nevertheless, the state trial

court failed to

adjudicate the

claim on the merits.

On habeas review,

the federal district court

failed to answer the

question of whether

Washington s due process

rights were violated because

there was no

evidentiary hearing to

support the factual

contention that Baer

was coerced. The district

court went on to state:

"tS)imply

,.pu*» this Court _

because Washington did notcannot hold an

exercise the evidentiary hearing

in state

court. And without

the Court cannot resolvp

regarding Baer'

es01ve

Washington is

relief

to federal habeas

Appendix: R.

Opinion

at *[17]-*[20] .

The Sixth Circuit

followed the district

failed to s pecifically

court's position and

answer whether there was a due

process

violation because there

was no record to

support a factual basis.

Houever, both the sixth

circuit and

the federal district court

made fundamentally-fiauied

snd incorrect factual finding

s when they

opined that there

was no state -court

record to support the fact

that Baer

was coerced. To the

contrary, Baer s

testimony supports

coercion. See attached

Excerpts

ftPPendix: 3 . The

court could

have relied on the

same record as it did when

it reviewed the other

claims presented

on habeas review

snd if that was not

reasonable,

it should have

remanded for an

evidentiary hearing

facts .

for additional

Contrary to the Sixth Circuit' s erroneous determination that

there was no record to support that Baer was coerced (because there

was no evidentiary hearing), the excerpts attached hereto

proves

otherwise. Accordingly, this Court should review the record on

certiorari and address the question head-on: whether there is a

due process violation when the police coerce a third-party to

give perjured testimony.

In the alternative, this court should vacate, reverse and

remand for a hearing if additional facts are necessary to make the

ultimate decision regarding a violation of due process.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted. Alternatively, issue an order to

vacate, reverse and remand for an evidentiary hearing.

Respectfully submitted,

Dated

^timiah Washington

Pro Se Litigant

Thumb Correctional Facility

3225 John Conley Drive

Lapeer, MI 48446

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