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Gioglio v. Smith

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

January 19, 2017

JEFFREY PAUL GIOGLIO, # 737147, Petitioner,
v.
WILLIE O. SMITH, Respondent.

          MEMORANDUM OPINION

          Paul L. Maloney, United States District Judge

         This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's criminal convictions stem from his sexual molestation of TB, his six year old niece. On July 15, 2009, a Kalamazoo County Circuit Court jury found petitioner guilty on two counts of second-degree criminal sexual conduct (CSC II) (sexual contact with a person under age 13), Mich. Comp. Laws § 750.520c(1)(a) and one count of attempted CSC II, Mich. Comp. Laws §§ 750.92, 750.520c(1)(a).

         On August 12, 2009, Judge Pamela Lightvoet sentenced petitioner as an habitual offender, second felony offense, to concurrent terms of eighty months to 22 ½ years, five to 22 ½ years, and eighteen months to 7 ½ years' imprisonment. On October 3, 2013, petitioner filed his federal habeas corpus petition through Attorney Christine Pagac.

         Petitioner seeks federal habeas corpus relief on the following grounds:

I. DOES THE STATE COURT'S DECISION REST ON A READING OF CRONIC THAT IS CONTRARY TO THAT CASE AND ITS PROGENY, PARTICULARLY BELL V. CONE, AND IS IT AN UNREASONABLE APPLICATION OF THAT PRECEDENT?
II. UNDER THE FRAMEWORK ESTABLISHED IN CRONIC, DID PETITIONER RECEIVE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND SHOULD THE MICHIGAN COURTS' DETERMINATIONS TO THE CONTRARY BE REVERSED?

         (Petition at 3, ECF No. 1, PageID.4; Petitioner's Brief at ii, ECF No. 1, PageID.9).

         Respondent has filed an answer to the petition. Respondent argues that the petition should be denied for lack of merit. (Respondent's Answer, 35-64, ECF No. 7, PageID.136-65).

         After review of the state-court record, the Court finds that the grounds raised by petitioner lack merit and do not provide a basis for granting federal habeas corpus relief. Accordingly, the petition will be denied.

         Standard of Review

         The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects the that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct. at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

         The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings-not dicta-of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.”). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “‘objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s 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.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

         Findings of Fact

         A. Circuit Court Proceedings

         Petitioner's trial began on July 14, 2009, and it concluded on July 15, 2009, with the jury's verdict finding petitioner guilty on all three charges. (Trial Transcripts, TT I-TT II, ECF No. 8-2, 8-3).

         TB's mother testified that in 2004, she and her family were living at her mother's house in Kalamazoo. (TT I, 193). Petitioner is her half-brother. He was also living at that residence. (TT I, 194). One evening, she went to check on her daughter and found petitioner in the room. (TT I, 197). Petitioner was sitting at a desk chair in his pajama bottoms. Her daughter, TB, was straddling petitioner across his lap wearing nothing other than her underwear. She could see that petitioner's penis was erect. TB's mother told petitioner to get out of the house. (TT I, 198-200). She did not contact Child Protective Services (CPS) at that time. (TT I, 201-02). In 2008, one of TB's teachers contacted CPS. (TT I, 165-68, 200).

         TB's grandmother confirmed that petitioner had been living in the house at the time in question. (TT I, 215). She testified regarding an occasion where TB had been playing with petitioner and she came indoors with her zipper down. (TT I, 222). Later, when she confronted petitioner, he denied any inappropriate touching. Petitioner went on to say that he and TB loved each other and they wanted to get married and have children. TB's grandmother advised petitioner that TB was a child and he was an adult. She stated that petitioner did not seem to understand that the relationship with TB he had described was inappropriate and illegal. (TT I, 224-25).

         TB was eleven years old on the date that she testified at petitioner's trial. (TT I, 170). She referred to petitioner as Uncle Jeff. She identified him in court. (TT I, 191). She testified that during the period from late 2003 into 2004, she was living with her grandmother. Petitioner was living with TB and her mother at her grandmother's house. (TT I, 173-74). TB described how, on one occasion, petitioner French-kissed TB in the mouth and kissed her all over her body, including her arms, legs and neck. (TT I, 175-79). On another occasion, petitioner unzipped his pants and stuck his penis through the zipper hole and forced her to touch it, hold it with both hands, and lick it. (TT I, 179-81). On another occasion, petitioner had TB unzip her pants. He pulled down her underwear and he kissed her private area. (TT I, 182-84). The last incident occurred in TB's bedroom. Petitioner told TB to get up on his lap ...


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