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Zollinger v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

August 16, 2016



          Robert L. Miller, Jr. Judge United State District Court

         William 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.)

         I. FACTS

         In 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 one:
Q. And you’re hoping to get a modification, aren’t you?
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 the hope?
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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