August v. Warren

TRACY JODETTE AUGUST, #714643, Petitioner, v. MILLICENT WARREN, Respondent.

CASE NO. 2:11-CV-11717

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: December 23, 2013

HONORABLE PAUL D. BORMAN

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner Tracy Jodette August ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that she is being held in violation of her constitutional rights. She was convicted of unarmed robbery, MICH. COMP. LAWS § 750.530, following a jury trial in the Muskegon County Circuit Court in 2008 and was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to 9 to 22 years imprisonment in 2009.

In her pleadings, Petitioner raises claims concerning the admission of other acts evidence, the validity of her sentence, the prosecutor's reference to anticipated testimony by a witness who did not appear, witness intimidation by the prosecutor, the admission of evidence without a foundation or chain of custody, witness tampering, a time limit on juryvoir dire, the right to counsel of choice, and the effectiveness of trial counsel. Respondent has filed an answer to the petition contending that it should be denied. For the reasons set forth, the Court finds that Petitioner is not entitled to federal habeas relief on her claims and denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's conviction arises from a shoplifting incident that occurred at a J.C. Penney store at the Lakes Mall in Muskegon, Michigan in January, 2008. The Court adopts the facts set forth by the Michigan Court of Appeals on direct appeal, which are presumed correct on federal habeas review. 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Those facts are as follows:

In January 2008, J.C. Penney loss prevention employee Wendy Hendryx noticed August while watching a video surveillance feed. Hendryx noticed August because August was carrying a bag, pressed flat underneath her coat. Hendryx watched as August selected some articles of clothing from the racks, including two $200 suits. August then walked into a fitting room area. Hendryx called the training supervisor, Judy Field-Lampman, for backup. Field-Lampman took over monitoring the surveillance feed, and Hendryx headed to the fitting room area.

On arriving at the fitting room area, Hendryx confirmed August's location within one of the fitting rooms and then busied herself cleaning up merchandise from the fitting room area. August remained in the fitting room for approximately 10 minutes. When August exited the fitting room, she had an armful of clothing, which she placed on a rack and then left the fitting room area. Hendryx then saw that the bag August had been carrying was no longer flat, but instead was "pretty full. It was round and full."

After August left the immediate area, Hendryx entered the fitting room area to check whether August had left all of the merchandise behind. Accordingto Hendryx, August's fitting room was empty, and hanging on the rack were a few shirts and one suit. Hendryx noted that the second suit and several shirts that she had seen August enter the fitting room with were not present. Hendryx then called Field-Lampman and advised her that she believed August "has our merchandise." Hendryx testified that, while Field-Lampman continued to monitor August via the surveillance feed, she double-checked the fitting room area to confirm her suspicions. No stop was made at that point, however, because store policy was to wait to stop suspected shoplifters "right outside the store" in order to give them a chance to either pay for the items or put them back.

Hendryx and Field-Lampman watched August as she purchased a pair of clearance shoes and then continued to browse through the store. Finally, August headed to the store exit that led into the adjacent mall area. Hendryx testified that the bag August was carrying was still as full as it had been when she left the fitting room and that she had not seen August "dump" any of the missing items.

As August exited the store, Hendryx approached her. Hendryx was dressed in plain clothes. But she testified that she identified herself as J.C. Penney security and asked August to come back into the store. According to Hendryx, August first asked, "why?," then said, "no," and then ran away. Hendryx gave chase and told August that she was calling the police. August responded, "I don't care." Hendryx chased August to the area just outside the mall entrance, where she was finally able to grab the bag that August was carrying. August then began yelling and wrestling with Hendryx over the bag. During the altercation, August punched Hendryx in the face. At that point, the bag ripped open and the stolen merchandise fell to the ground. August then ran into the parking lot, got into a truck, and drove away. Hendryx was able to report the license plate number to the police. Police later arrested August.

August testified that she entered the J.C. Penney store on the day in question with several items in a bag. August claimed that the bag she was carrying contained a suit, some shirts, and a make-up bag, which contained the receipts for these items. She claimed that she brought the items with her because she was either going to exchange them or find an undergarment to wear underneath the suit for an interview she had later that day. August claimed that she left the store without making any exchanges because she did not think she had enough time before her interview. Augustacknowledged that Hendryx stated that she needed to talk to her, but August declined because she was in a hurry to get to her interview. August denied that Hendryx identified herself as a J.C. Penney employee. According to August, she continued walking to the mall exit, where she was suddenly jumped from behind. She denied hitting Hendryx, but admitted to trying to defend herself because she thought Hendryx was a mugger. August claimed that she lost the make-up bag containing the receipts during the scuffle with Hendryx.

After trial, the jury found August guilty of unarmed robbery.

People v. August, No. 290472, 2010 WL 2506731, *1-2 (Mich. Ct. App. June 22, 2010) (unpublished). The trial court subsequently sentenced her as a fourth habitual offender to 9 to 22 years imprisonment.

Following sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising several claims, including those presented on habeas review. The Michigan Court of Appeals denied relief and affirmed her conviction and sentence. Id. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. August, 488 Mich. 995, 791 N.W.2d 443 (2010).

Petitioner thereafter filed her federal habeas petition raising the following claims:

I. The trial court violated her state and federal constitutional rights by admitting other act evidence.

II. The trial violated her state and federal constitutional rights by scoring Offense Variable 19 at 15 points.

III. The trial court violated her state and constitutional rights by failing to take into account all mitigating evidence at sentencing.

IV. The trial court violated her state and federal constitutional rights bysentencing her as a fourth habitual offender.

V. The trial court violated her right to confront witnesses by allowing the prosecutor to introduce the substance of inadmissible hearsay of a witness who failed to testify at trial. Trial counsel was ineffective for failing to object or request a mistrial.

VI. She was denied her due process right to present a defense when the prosecutor intimidated and threatened a defense witness and the trial court failed to offer the witness an attorney so she would not be afraid to testify.

VII. She was denied due process when the trial court admitted unauthorized evidence with no foundation and no chain of custody.

VIII. She was denied her constitutional rights when one witness tampered with another witness.

IX. She was denied due process when the trial court limited jury voir dire to one hour. Trial counsel was ineffective for failing to object, request a continuance, or discuss the matter with her.

X. She was denied her constitutional right to retain counsel of choice when the trial court forced her to go to trial with appointed counsel and she was in the process of retaining new counsel and the trial court refused to inquire into the matter upon request.

XI. She was denied her right to present a defense and counsel was ineffective for refusing to call exculpatory witnesses, failing to interview and subpoena witnesses, and failing to renew an expired witness list.

XII. She was denied her constitutional right to a fair trial and counsel was ineffective for failing to present exculpatory video evidence which would have impeached a prosecution witness's testimony.

XIII. She was denied the effective assistance of counsel where counsel failed to impeach witnesses, failed to communicate, forced her to testify, failed to call exculpatory witnesses, failed to object to witness tampering, failed to object to prosecutorial misconduct, failed to present exculpatory video evidence, failed to object towitness intimidation, failed to object to the limitation on jury voir dire, failed to object to the lack of chain of custody, failed to object to improper evidence, failed to object to lost evidence, failed to request an adjournment, failed to present exculpatory evidence, failed to communicate a Cobbs offer, failed to review the pre-sentence report with her and present mitigating evidence at sentencing, failed to object to the scoring of sentencing variables, and where counsel

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