United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
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.
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.
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.
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.)
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.
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.
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;
(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).