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Pollini v. Litteral

United States District Court, W.D. Kentucky, Louisville Division

January 16, 2019



          David J. Hale, Judge.

         This matter is before the Court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1) In accordance with 28 U.S.C. § 636(b)(1)(B), the Court referred the matter to United States Magistrate Judge Dave Whalin for initial review and recommended disposition. (D.N. 25) In his Findings of Fact, Conclusions of Law and Recommendation (D.N. 39), Judge Whalin recommended that Pollini's petition be granted on the first asserted ground for relief; Judge Whalin did not evaluate Pollini's other claims. (Id., PageID # 57) For the reasons discussed below, the Court declines to adopt the magistrate judge's recommendation and is not persuaded by Pollini's remaining arguments. The Court will therefore deny Pollini's petition.

         I. BACKGROUND

         In 2002, Dan Ziegler awoke to find Jasper Pollini burglarizing his garage. Commonwealth v. Pollini, 172 S.W.3d 418, 421 (Ky. 2005). After chasing Pollini from his property, Ziegler notified his neighbor, Byron Pruitt, who armed himself and began searching the area. Id. Meanwhile, Pollini realized that he forgot his toolbox at Ziegler's home and persuaded his sister, Crystal Plank, to drive him back to the scene. Id. Upon their arrival, Plank and Pollini saw a flashlight coming toward their vehicle, prompting Pollini to fire his gun out the window. Id. The bullet pierced Pruitt's throat, and he died shortly thereafter. Id. at 422.


         Following trial in 2003, a Jefferson Circuit Court jury convicted Pollini of murder, burglary in the first degree, burglary in the second degree, and receiving stolen property (D.N. 20, PageID # 121). The trial judge sentenced Pollini to life without the possibility of parole for 25 years. (D.N. 39, PageID # 1559) Thereafter, the case proceeded down a lengthy path of appeals.

         On direct appeal in 2005, the Kentucky Supreme Court upheld Pollini's conviction but vacated the case for a new sentencing hearing; the Jefferson Circuit Court subsequently reduced his sentence to life. The court found that Pollini was not eligible for aggravated sentencing because he did not shoot Pruitt during or in immediate flight from the burglary. (Id.) After resentencing in 2006, Pollini appealed, but the Kentucky Supreme Court dismissed the appeal finding that the trial court did not abuse its discretion in admitting videotape testimony of Ziegler's mother and that the prosecutor's closing argument was not improper. (D.N. 20, PageID # 124) Pollini v. Commonwealth, No. 2006-SC-000835-MR, 2008 WL 203035 (Ky. Jan. 24, 2008). Next, Pollini filed a post-conviction action in state court, which the trial court and the Kentucky Court of Appeals dismissed. (Id.)

         In 2011, the Kentucky Supreme Court remanded the case to the Kentucky Court of Appeals in light of its ruling in Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010), where the court agreed to recognize ineffective-assistance-of-counsel claims based on alleged deficiencies during direct appeal. On remand, the Kentucky Court of Appeals vacated Pollini's conviction based on the trial judge's violation of Kentucky Rule of Criminal Procedure 9.74, which prohibits a judge from responding to jury requests for information outside the presence of counsel. Pollini v. Commonwealth, No. 2009-CA-000964-MR, 2011 WL 6412052 (Ky. Ct. App. 2011). The Kentucky Supreme Court then reversed, finding the Rule 9.74 violation harmless error. Commonwealth v. Pollini, 437 S.W.3d 144, 153 (Ky. 2014). Accordingly, in 2014, the Kentucky Supreme Court reinstated Pollini's conviction and sentence. Id.


         In his habeas petition, Pollini asserts six grounds for relief. (D.N. 20, PageID # 112-14) The magistrate judge recommended that Pollini be given a new direct appeal relating to Ground One of his petition and did not offer a recommendation with respect to any of the other five grounds. (D.N. 44, PageID # 1612) The warden objected to the magistrate judge's recommendation. (D.N. 40) This opinion will therefore address all six grounds of Pollini's petition.

         II. STANDARD

         The Court reviews de novo the portions of the magistrate judge's report to which objection is made. 28 U.S.C. § 636(b)(1). Under the Antiterrorism and Effective Death Penalty Act of 1996,

[a]n 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.

28 U.S.C. § 2254(d). The “contrary to” clause applies “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable application” occurs where “the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. If the state court's decision conflicts with clear and convincing evidence to the contrary, there has been an “unreasonable determination of the facts.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). Under this clause, the petitioner must show that the state court “applied [a Supreme Court case] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). There must be no possibility that fair-minded jurists could disagree that the state court's decision conflicts with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011).


         A. ...

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