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Zollinger v. Superintendent
United States District Court, N.D. Indiana, South Bend Division
August 16, 2016
WILLIAM ZOLLINGER, Petitioner,
OPINION AND ORDER
L. Miller, Jr. Judge United State District Court
Zollinger, a pro se prisoner, is serving a 40-year
sentence for possession of methamphetamine with intent to
deliver and possession of marijuana. State v.
Zollinger, 20D03-0412-FA-189. He filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE
1.) The respondent argues that the sole claim raised in the
petition is procedurally defaulted. (DE 8.)
deciding the petition, the court must presume the facts set
forth by the state courts are correct. 28 U.S.C. §
2254(e)(1). Mr. Zollinger must rebut this presumption with
clear and convincing evidence. Id. On appeal from
the denial of post-conviction relief, the Indiana Court of
Appeals summarized the facts underlying Mr. Zollinger’s
offenses this way:
Around 11:30 p.m. on October 25, 2004, a magistrate in
Elkhart County issued a search warrant for the
“residence of [Zollinger] and Tonya Hernandez, 1006
Zollinger Road, Goshen[.]” At approximately 12:45 a.m.
on October 26, 2004, police officers executed the warrant by
breaking down the door of the residence, entering the home,
and loudly announcing themselves. Inside, the police found
Zollinger and Hernandez asleep in a bed in one bedroom and
two small children asleep in a separate bedroom. The search
of the premises revealed 294 grams of marijuana,
approximately 159 grams of methamphetamine, a handgun on a
nightstand beside the bed in which Zollinger and Hernandez
had been sleeping, a box of baggies in a drawer, and a scale.
The State originally charged Zollinger with possession of a
handgun without a license, possession of three or more grams
of methamphetamine with intent to deliver, and possession of
thirty or more grams of marijuana. However, prior to trial,
the State dismissed the handgun count. In late September
2005, a jury found Zollinger guilty on the two remaining
counts. On October 20, 2005, the court entered judgment of
conviction and sentenced Zollinger to a forty-year term on
the dealing count and a three-year term on the possession
count, to be served concurrently.
Zollinger v. State, No. 20A03-0603-CR-91, memo op.
at 2-3 (Ind.Ct.App. Nov. 30, 2006).
Zollinger directly appealed to this court, raising three
issues. Zollinger first claimed that the evidence was
insufficient to prove that he constructively possessed
methamphetamine. Id. We rejected that contention and
determined that the evidence, including the receipt of mail
at the house, the presence of clothing there, and
cross-examining Hernandez, was sufficient to show that
Zollinger lived there. Thus, we concluded that the evidence
was sufficient to support Zollinger’s convictions.
Id. at 2.
Zollinger also alleged that the trial court improperly
limited his cross-examination of Hernandez. Hernandez
testified that the State had not made any promises to her
about sentence modification if she testified against
Zollinger. Id. On cross-examination, Zollinger
attempted to introduce a letter that Hernandez had written to
him that stated:
Ronnie seems to think that he’s only getting 20 do 10.
I’ll tell you this if he gets less than me he fsnitched
[sic]. This is his 3d time around. It’s my first and I
got 28 (All I got is there [sic] work for a modification)
Sounds crazy, but I’m tired of sitting here. I probably
am stuck here until your trial.
Id. Zollinger argued that the letter implied that
the State had promised Hernandez a sentence modification and
that the jury should have been permitted to hear that
information. However, the trial court refused to admit the
letter into evidence. Id. In affirming the trial
court’s exclusion of the letter, we quoted
Hernandez’s testimony which revealed that she had
merely hoped for a modification but had never been promised
Q. And you’re hoping to get a modification,
A. No. I mean, I would hope I get one, but, it’s not
guaranteed that I get one.
Q. With respect to the statements regarding modification that
came up. You indicated that you certainly hope to be
modified, is that right?
A. Ya, I hope so.
Q. Ok. Has the State done anything to encourage you in
A. No. A. Ya, I was gonna-regardless, I would
have been called whether it was willingly or not.
Slip op. at 8-10 (emphasis [originals].
We further pointed out in Zollinger’s direct appeal
that the State argued at Hernandez’s hearing for the
imposition of a lengthier term than what was actually
ordered. Id. at 4. We also recognized other
circumstances establishing that the trial court had properly
excluded the letter that Zollinger had offered:
Recognizing Hernandez’s potential bias, and faced with
Zollinger’s request that her letter be introduced into
evidence, the trial court properly arranged for examination
of Hernandez outside the jury’s presence. During that
examination, Hernandez confirmed that the State had not
offered to modify her sentence if she testified against
Zollinger. Indeed, according to Hernandez, the State had
been “quite clear” that she would receive
“nothing”-let alone a promise of modification-in
addition for her testimony. She went on to state, “I
got twenty eight years, sir. I am hoping for a modification.
That is all I’m hoping for.” In addition,
Hernandez noted that her attorney had stated that testifying
“might” help, but that “it’s not a
guarantee.” When the jury was brought back, Hernandez
reiterated that no promises were made by the State.
Id. at 5 (emphasis added). In light of the above, it
was determined that Hernandez’s letter was not
inconsistent with her testimony and it did not add anything
to it. Id. Moreover, it was noted that the letter
had the real “possibility of confusing the jury or
injecting improper bias.” Thus, we affirmed the trial
court’s exclusion of the letter. Finally, we concluded
that Zollinger’s forty-year sentence was appropriate.
Id. at 8.
On April 11, 2007, Zollinger filed a petition for
post-conviction relief, alleging among other things, that his
trial counsel was ineffective for failing to introduce
evidence that the State had promised Hernandez a ...
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