Gioglio v. Stewart
Filing
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MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGEL GIOGLIO,
Petitioner,
v.
Case No.15-14105
HON. AVERN COHN
ANTHONY STEWART,
Respondent.
________________________________/
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Angel Gioglio, (“Petitioner”), was
convicted after a jury trial in state court of uttering and publishing, in violation of M.C.L.
§ 750.249. She was sentenced as a fourth-time habitual felony offender to 6 to 40
years’ imprisonment.
The petition raises two claims: 1) Petitioner was denied her right to present a
defense, to confrontation, and to the effective assistance of counsel when the trial court
excluded testimony from Petitioner that she received an email from a prosecution
witness, and 2) the trial court erred in departing from the recommended sentencing
guideline range. For the reasons that follow, the petition will be denied for lack of merit.
II. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review under 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s conviction arises out of a forged check that she
presented for deposit. On January 22, 2012, Wendy Arntz went to a mall
to walk for exercise. When she arrived, she placed the keys to her car in
her sweatshirt and hung the sweatshirt in a coatroom inside the mall.
Unbeknownst to Arntz, defendant followed her into the mall, took the keys
from inside the sweatshirt, and used the keys to break into Arntz’s vehicle.
Once inside the vehicle, defendant stole Arntz’s purse, which contained,
among other items, Arntz’s checkbook.
Approximately four days later, defendant agreed to rent several
rooms from David Skirvan. Defendant did not immediately give him a
security deposit or money for rent, but she assured Skirvan that she would
pay him shortly. On February 3, 2012, defendant went to a Chase Bank
branch inside of a Meijer store and deposited a check for $1,500 into
Skirvan’s account. The check was written from Arntz’s checking account.
Defendant admitted that she deposited the check but testified that Skirvan
gave her the check for $1,500 from Arntz’s account and asked her to “drop
it off for him while he used the bathroom” in the Meijer store. However,
Skirvan testified that he did not ask defendant to deposit the check into his
account and that he had “nothing” to do with depositing the check at issue.
In addition, Arntz and her husband testified that they did not know Skirvan
before the initiation of this case and that they never gave anyone
permission to write a check from their account to Skirvan. The teller at the
bank where defendant deposited the check confirmed that Skirvan was
not with defendant at the time the check was deposited, and that
defendant did not have Skirvan’s account information, so she had to look
up his account information to deposit the check.
After defendant moved into his home, Skirvan began to experience
issues with his personal belongings and financial affairs. On February 6 or
7, 2012, he attempted to use his debit card to purchase groceries but was
told that his account was frozen because of fraudulent activity. On
February 8, 2012, he noticed that four checks were missing from his
checkbook. He found one of these checks written for $50 to “Angel Gioglio
Cleaning Services.” When Skirvan confronted defendant, she denied
writing the check, and he contacted the Kent County Sheriff’s Department
on February 8, 2012. That same day, defendant moved out of Skirvan’s
home at his request. After defendant moved out of Skirvan’s home, he
learned that his credit card account had been “maxed out” and closed, and
his email and Facebook accounts had been closed “due to suspicious
activity.” Skirvan had let defendant use his laptop computer because she
said she needed it for work purposes. Skirvan also testified that shortly
after defendant moved into his home, he noticed that several items were
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missing from his home, including sterling silver coasters, kitchen utensils,
crystal ashtrays, and an expired Michigan identification card, but he
initially thought he had simply misplaced these items. In addition, Skirvan
testified that after defendant moved out of his home, he went through the
area where she had stayed and found Arntz’ checkbook hidden in a closet
in the upstairs of the home. At trial, defendant denied stealing any items
from Skirvan or possessing Arntz’s checkbook.
In approximately mid-February 2012, Arntz was walking at the
same mall where she had been at the time her purse was stolen.
Defendant approached her and inquired if her purse had been stolen from
the mall. Arntz confirmed that it had, and defendant stated that she also
had her purse stolen from the mall. Defendant told Arntz that the person
who stole their purses “ended up being caught” and “went to prison.” Arntz
testified that she was “suspicious” of defendant at first, but defendant
continued to engage her in conversation; defendant told Arntz that she
“looked familiar” to her and the women tried to determine how they knew
each other. Arntz also testified that defendant inquired whether she had
replaced her driver’s license. At trial, defendant denied ever speaking to
Arntz.
Defendant also testified that she and Skirvan agreed that she would
provide cleaning services to Skirvan in exchange for use of a room.
However, at trial, the prosecution introduced as an exhibit an email from
defendant to a man named Ron Roloff dated February 5, 2012, in which
defendant stated that she was renting a room, and “they got paid” for the
room. Despite the fact that this email was sent from an email account that
defendant admitted was hers, defendant denied “ever hear[ing]” of Roloff.
Defendant also testified that Skirvan was “interested in pursuing other
things besides room and board,” and requested that she be his
“companion.” When she refused and indicated that she was seeing
someone, Skirvan told her that she was “no longer welcome in his home”
because she was “dating a different race.” Defendant admitted that she
had two prior uttering and publishing convictions.
The jury convicted defendant. At sentencing, defendant admitted
that she had stolen Arntz’ checkbook and committed the charged offense.
People v. Gioglio, No. 317360, 2014 WL 6085697 at *1–2 (Mich. Ct. App. Nov. 13,
2014).
Following her conviction and sentence, Petitioner filed an appeal in the Michigan
Court of Appeals. Her appellate brief raised the same claims raised on habeas review.
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The Michigan Court of Appeals affirmed. Id. Petitioner filed an application for leave to
appeal in the Michigan Supreme Court raising the same claims. The application was
denied. People v. Gioglio, 862 N.W.2d 206 (Mich. April 28, 2015) (table).
III. Standard of Review
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
Relief is bared under this section unless the state court adjudication was
“contrary to” or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas
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court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529
U.S. at 413.
“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (2011), quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal. . . . As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103
(internal quotation omitted).
“Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that
“resulted in” a decision that was contrary to, or “involved” an unreasonable application
of, established law. This backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that the record under review is
limited to the record in existence at that same time - i.e., the record before the state
court.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011).
IV. Analysis
A. Exclusion of Email
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In her first claim, Petitioner contends that the trial court erred in preventing her
from testifying about an email she claimed to receive from Skirvan after he told her to
leave his house. She argues that the exclusion of this evidence violated her right to
present a defense, to confront witnesses, and to the effective assistance of counsel.
Skirvan testified during the prosecution case that after Petitioner left his house
he did not have any contact with her. During Petitioner’s testimony, defense counsel
asked her if she received an email from Skirvan after she left. The prosecutor objected
that the email was not authenticated, and defense counsel had not provided him with
notice in accordance with the discovery order. The prosecutor stated that he would
have had Skirvan testify about the email if he had received notice. Petitioner’s counsel
argued that the email was relevant to impeach Skirvan’s credibility. Defense counsel
stated that the email stated “I’ll watch you pay for telling me ‘no.’” Doc. 8-4, at 56. The
trial court sustained the objection on the grounds that defense counsel failed to comply
with the discovery order and the prosecutor was prejudiced because he would have
addressed the issue during Skirvan’s testimony. Id., at 57-58.
The Michigan Court of Appeals denied relief, finding that (1) the trial court did
not abuse its discretion in excluding the evidence based on a violation of the discovery
order, (2) Petitioner’s right to present a defense was not violated because the trial court
properly exercised its discretion, (3) Petitioner’s confrontation rights were not violated
because she had an adequate opportunity to cross examine Skirvan, and (4) Petitioner
was not denied the effective assistance of counsel because if the proffered email had
been disclosed prior to trial, the prosecutor likely would have used it to discredit
Petitioner. Gioglio, 2014 WL 6085697 at *3-5.
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2.
With respect to the right to present a defense, although the Sixth Amendment
Compulsory Process Clause may be violated by imposing a discovery sanction that
entirely excludes the testimony of a material defense witness, See Taylor v. Illinois, 484
U.S. 400, 409 (1988), it does not create an absolute bar to the preclusion of the
testimony of a defense witness by the court as a sanction for violating a discovery rule.
Id. at 410; Michigan v. Lucas, 500 U.S. 145, 152 (1991) (“We have indicated that
probative evidence may, in certain circumstances, be precluded when a criminal
defendant fails to comply with a valid discovery rule.”). Although recognizing the
constitutional significance of a criminal defendant's ability to present favorable
evidence, the Supreme Court in Taylor also emphasized a state’s interest in conducting
orderly criminal trials and in creating enforceable rules for identifying and presenting
evidence. Taylor, 484 U.S. at 410-11.
Although the Supreme Court declined to “draft a comprehensive set of
standards to guide the exercise” of a trial court's discretion to sanction a party for failing
to comply with discovery rules, the Supreme Court identified several factors that would
be relevant in determining whether a discovery sanction would be constitutional. Id. at
414-15. These factors included a defendant’s right to present exculpatory evidence,
the integrity of the adversarial system, the interest in administering justice fairly and
efficiently, potential prejudice to the truth-seeking role of criminal trials, the reasons for
failure to comply with discovery rules, and the relative ease of compliance with the
rules. Id. at 414-16.
Here, the Michigan Court of Appeals did not unreasonably apply clearly
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established federal law in rejecting Petitioner’s claim. The record indicates defense
counsel informally showed the email to the prosecutor on a phone prior to trial.
However, defense counsel did not comply with the discovery order because counsel
did not give notice that it would be presented at trial. Moreover, at the court of appeals
explained, Petitioner was able to present her theory of the case without the email:
The record reveals that defendant had the opportunity to cross-examine
Skirvan about facts from which his bias, prejudice, or lack of credibility might be
inferred. In addition, there is no indication in the record that trial counsel was
unable to question Skirvan about the email in question; rather, it appears trial
counsel chose not to pursue this line of questioning during cross-examination of
Skirvan. Therefore, exclusion of this evidence did not deny defendant her
constitutional right to confront Skirvan.
People v. Gioglio, No. 317360, 2014 WL 6085697, at *4.
This conclusion is reasonable. With the quantum of evidence on the defense
theory in the record, this Court concludes that the petitioner was afforded “a meaningful
opportunity to present a complete defense.” Allen v. Howes, 599 F. Supp. 2d 857, 873
(E.D. Mich. 2009). Petitioner is therefore not entitled to relief on the grounds she was
denied a right to present a defense.
3.
With respect to Petitioner’s claim that the trial court’s order violated her right to
confront witnesses, “the Confrontation Clause guarantees only ‘an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, that the defendant might wish.’” United States v. Owens, 484
U.S. 554, 559 (1988)(internal quotations omitted). Here, Petitioner was given a full and
fair opportunity to cross examine Skirvan. Defense counsel did not attempt to question
Skirvan about the alleged email during cross examination, and thus, there is no basis
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on which to conclude that Petitioner was prevented from confronting him about the
email.
4.
Finally, Petitioner argues says that defense counsel was ineffective for failing to
comply with the discovery order and then using the email in her defense. To
demonstrate that she was denied the effective assistance of counsel, Petitioner must
demonstrate that counsel’s performance was deficient, and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
There is a “strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance.” 466 U.S. at 689.
The Michigan Court of Appeals did not unreasonably apply this standard.
Rather, it carefully applied the principles of Strickland and concluded that Petitioner
was not entitled to relief, explaining:
The record establishes that if defendant had identified the email as an
exhibit before trial, the prosecution would have questioned Skirvan about the
email during his direct examination, and Skirvan would have likely testified that
defendant stole his email passwords and that she sent the email to herself from
his email account. Moreover, at trial the prosecution admitted evidence to
establish that defendant lied about at least one other email. In other words, if
defendant had identified the email as an exhibit before trial, the prosecution
could have used the email to discredit defendant. Therefore, the record supports
a finding that trial counsel's initial decision not to utilize the email as an exhibit
was a matter of trial strategy, Horn, 279 Mich.App at 39. The fact that this
strategy did not work does not render counsel's performance objectively
unreasonable. Petri, 279 Mich.App at 412. In addition, defendant's trial counsel
used several lines of questioning in an attempt to impeach Skirvan and attack
Skirvan's credibility at trial. Trial counsel's decisions regarding how to attack the
credibility of Skirvan (including whether to identify the email as an exhibit before
trial) were a matter of trial strategy, and the record does not establish that
defense counsel's performance in this regard was so deficient that it fell below
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an objective standard of reasonableness.
People v. Gioglio, No. 317360, 2014 WL 6085697, at *4 (Mich. Ct. App. Nov. 13,
2014), appeal denied, 497 Mich. 1015, 862 N.W.2d 206 (2015)
The court of appeals analysis and conclusion is reasonable. The evidence
indicating Petitioner’s guilt was overwhelming. She was not only identified by Skirvin,
but also by a bank teller, and by Mr. and Mrs. Arntz as the person who deposited the
check stolen from the Arntz family. Presentation of the email would not have, with
reasonable probability, produced a more favorable outcome for Petitioner. Indeed, as
the Michigan Court of Appeals noted, the prosecutor could have used it to show that
Petitioner stole Skirvan’s email password.
Overall, Petitioner is not entitled to relief on her first claim.
B. Sentencing Claim
In her second claim, Petitioner says that the trial court incorrectly scored the
guidelines and improperly departed upward. The trial scored Petitioner’s minimum
sentence guidelines at 10 to 46 months and departed upward from the guidelines by
sentencing defendant to a minimum of six years (72 months). The trial court gave two
reasons for its departure: (1) defendant was a “pathological liar” who “had a story for
everything;” and (2) defendant engaged in predatory conduct, both before and after the
uttering and publishing offense, because she “scope[d]” out Arntz before the offense
and because she went to the mall and spoke with Arntz after the offense, talking with
her about the theft of her purse and claiming that the perpetrator had been
apprehended. The trial court explained that these factors were objective and verifiable
and that they were not adequately considered under the guidelines.
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See People v. Gioglio, No. 317360, 2014 WL 6085697, at *5. Petitioner is not entitled
to habeas relief on this claim.
First, questions about the scoring of the guidelines themselves are not
cognizable because they raise issues state law. See Tironi v. Birkett, 252 F. App’x 724,
725 (6th Cir.2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir.2 003). “Petitioner has
no state-created interest in having the Michigan Sentencing Guidelines applied rigidly
in determining his sentence.” See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867
(E.D. Mich. 2009) (citing Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D.
Mich. 2005). Thus, any error by the trial court in calculating her guideline score or in
departing above her sentencing guidelines range alone would not merit habeas relief. .
Petitioner, however, contends that the trial court violated her Sixth Amendment
right to a trial by jury by using factors that had not been submitted to a jury and proven
beyond a reasonable doubt or admitted to by petitioner when scoring the Michigan
Sentencing Guidelines. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme
Court held that other than the fact of a defendant’s prior conviction, any fact that
increases or enhances a penalty for a crime beyond the prescribed statutory maximum
for the offense must be submitted to the jury and proven beyond a reasonable doubt.
Id., at 301 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
The holding in Blakely does not apply to Petitioner’s sentence. Indeterminate
sentencing schemes such as Michigan’s scheme, unlike determinate sentencing
schemes, do not infringe on the province of the jury. Blakely, 542 U.S. at 304-05, 30809. Moreover, Apprendi and Blakely do not apply to a judge’s factfinding that increases
a minimum sentence so long as the sentence does not exceed the applicable statutory
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maximum, which Petitioner’s sentence did not. See Chontos v. Berghuis, 585 F.3d
1000, 1002 (6th Cir. 2009); Montes v. Trombley, 599 F.3d 490, 495 (6th Cir. 2010).
The Court is aware that in Alleyne v. United States, ––– U.S. ––––, ––––, 133
S.Ct. 2151, 2155 (2013), the Supreme Court extended the holdings in Apprendi and
Blakely and held that any fact that increases a mandatory minimum sentence for a
crime is an element of the criminal offense that must be proven beyond a reasonable
doubt. The Supreme Court also made clear that its decision did not mean that every
fact influencing judicial discretion in sentencing must be proven to a jury beyond a
reasonable doubt. Id. at 2163. Moreover, “Alleyne dealt with judge-found facts that
raised the mandatory minimum sentence under a statute, not judge-found facts that
trigger an increased guidelines range,” the latter of which occurred in Petitioner’s case.
Unlike the laws at issue in Alleyne and Apprendi, the Michigan Sentencing Guidelines
do not require a trial court to impose a higher sentence nor do they allow him or her to
impose a more severe sentence that was necessarily unavailable before. Id. Because
the Michigan Sentencing Guidelines merely advise a sentencing judge in Michigan how
to exercise his or her sentencing discretion, Alleyne does not afford Petitioner relief.
Finally, the Michigan Supreme Court’s recent decision in People v. Lockridge,
498 Mich. 358 (Mich. July 29, 2015), holding that Michigan’s sentencing guideline
scheme violates the Sixth Amendment under Alleyne, does not provide a basis for
habeas relief. First, a decision of the Michigan Supreme Court does not constitute
clearly established United States Supreme Court law. Second, the Michigan Supreme
Court made its holding in Lockridge applicable only to cases still “pending on direct
review.” Id. at 25-26. Petitioner’s case was not pending on direct review when
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Lockridge was decided. Thus, she does not benefit from its holding.
V. Conclusion
The state court’s decision denying Petitioner relief is neither unreasonable nor
contrary to Supreme Court precedent. Accordingly, the petition is DENIED.
Furthermore, reasonable jurists would not debate the Court's assessment of
Petitioner's claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2).1
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: November 23, 2016
Detroit, Michigan
1
“The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
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