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Ellison v. Litteral

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

September 30, 2019

ANTONIO GILES ELLISON PETITIONER
v.
WARDEN KATHY LITTERAL RESPONDENT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE.

         This matter is before the Court on Petitioner's Objection (DN 19) to the Magistrate Judge’s Findings of Fact, Conclusions of Law, and Recommendation (DN 18). For the following reasons, the Magistrate Judge’s Report and Recommendation (“R&R”) is ADOPTED, Petitioner’s Objection is OVERRULED, and Petitioner’s Petition for Writ of Habeas Corpus (DN 1) is DISMISSED WITH PREJUDICE.

         I. STATEMENT OF FACTS

         On October 20, 2009, several Louisville Metro Police officers heard gunshots from a nearby alley and witnessed a vehicle leaving the scene. (R&R 2, DN 18). After the vehicle was stopped, Petitioner Antonio Giles Ellison (“Ellison”) fled the vehicle, was pursued by law enforcement, and was eventually apprehended. (R&R 2). The remaining officers arrested the driver of the vehicle, Clinton Jones (“Jones”), and the backseat passenger, Dontay Rice (“Rice”). (R&R 2). A revolver, a small amount of cocaine, and multiple cell phones were recovered from the vehicle. (R&R 2). Meanwhile, the police discovered in the alley the body of Ricco Cunningham, who died from two gunshot wounds. (R&R 2).

         On November 19, 2009, Ellison was indicted by a Jefferson County grand jury for complicity to murder, complicity to first-degree trafficking in a controlled substance while in possession of a firearm, and first-degree fleeing or evading the police. (R&R 1). Initially, Ellison, Jones, and Rice were all tried together. (R&R 2). Just after opening arguments, however, the trial judge granted a mistrial in accordance with the “unanimous motion” of the defendants and the agreement of “each attorney, after consulting their client” to waive any double jeopardy arguments. (Order Granting Mistrial, DN 10-2, ID# 98). By contrast, Ellison contends that his attorney never advised him about the waiver of his double jeopardy claim. (Pet’r’s Mem. Supp. Pet. 4, DN 9).

         In the second trial of Ellison, Jones, and Rice, Ellison was found guilty of complicity to murder, facilitation to first-degree trafficking in a controlled substance while in possession of a firearm, and first-degree fleeing or evading the police. (R&R 2-3). The jury recommended a sentence of life imprisonment for the complicity to murder conviction, twelve months for the facilitation to trafficking conviction, and three years for the fleeing or evading conviction. (R&R 3). All sentences were ordered to run concurrently for a total sentence of life imprisonment. (R&R 3).

         Ellison appealed his conviction to the Kentucky Supreme Court, alleging five claims, but his conviction was affirmed. (R&R 3). Ellison subsequently collaterally attacked his conviction alleging ineffective assistance of counsel pursuant to Kentucky Criminal Rule 11.42. (R&R 3). The Jefferson Circuit Court denied Ellison’s motion for post-conviction relief, which was affirmed by the Kentucky Court of Appeals. (R&R 3).

         II. FEDERAL PROCEDURAL HISTORY

         Ellison brings this Petition for Writ of Habeas Corpus alleging that the trial court: (1) violated his double jeopardy rights; (2) violated his right to counsel by limiting conversation with his attorney during a break; (3) erred in denying Ellison a separate trial; and (4) violated the Confrontation Clause with the admittance of statements of his non-testifying co-defendants. (Pet. Writ Habeas Corpus 3, DN 1). In the Findings of Fact, Conclusions of Law, and Recommendation, the Magistrate Judge recommended that Ellison’s Petition, his request for an evidentiary hearing, and a certificate of appealability all be denied. (R&R 20).

         III. JURISDICTION

         This Court has jurisdiction to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” pursuant to 28 U.S.C. § 2254(a).

         IV. STANDARD OF REVIEW

         This Court reviews the state court proceedings for decisions that are contrary to or involved an unreasonable application of clearly established federal law or that involved an unreasonable determination of facts. 28 U.S.C. § 2254(d). General objections or the mere repetition of arguments already presented to the Magistrate Judge are construed as a failure to object. See Howard v. Sec’y of Health & Human Servs.,932 F.2d 505, 509 (6th Cir. 1991) (“The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. ...


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