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Gioglio v. Stewart

United States District Court, E.D. Michigan, Southern Division

November 23, 2016

ANGEL GIOGLIO, Petitioner,
v.
ANTHONY STEWART, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         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 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.

         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 ...


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