United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE.
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.
STATEMENT OF FACTS
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).
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).
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).
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).
FEDERAL PROCEDURAL HISTORY
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).
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).
STANDARD OF REVIEW
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. ...