Zollinger v. Superintendent

Filing 11

OPINION AND ORDER: The Court DENIES the petition 1 ; and DECLINES to issue a certificate of appealability. Signed by Judge Robert L Miller, Jr on 8/16/2016. (lhc)(cc: Zollinger)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM ZOLLINGER,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:14-CV-1834 RM

OPINION AND ORDER
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,
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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 crossexamination, 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
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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.
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On April 11, 2007, Zollinger filed a petition for postconviction relief, alleging among other things, that his trial counsel
was ineffective for failing to introduce evidence that the State had
promised Hernandez a sentence modification in exchange for her
testimony.
Although the post-conviction court appointed counsel for
Zollinger, the State public defender withdrew its appearance on
December 27, 2007. Thereafter, on February 13, 2008, the postconviction court held a telephonic conference with a deputy public
defender. The deputy public defender represented that the office
had difficulty finding counsel to represent Zollinger but informed
the post-conviction court that Amy E. Karozos had agreed to do so,
provided that no evidentiary hearing would occur earlier than one
year from the date that she entered her appearance. The postconviction court agreed not to schedule any hearing prior to that
time. On March 5, 2008, the State Public Defender filed its notice
of appointment of outside counsel, and Karozos filed her
appearance on November 25, 2008.
On February 29, 2012, the court sua sponte scheduled
Zollinger’s case for an evidentiary hearing on June 7, 2012.
Zollinger filed his witness and exhibit list by certified mail on May
31, 2012.
The post-conviction court conducted an evidentiary hearing
on June 7, 2012. During the hearing, Zollinger presented no live
testimony and proffered affidavits from Hernandez and his
appellate counsel, Patricia McMath. Zollinger had provided
Hernandez’s affidavit to the State approximately one week before
the hearing. Hernandez averred in her affidavit that the police
came to visit her at the jail and told her that they would “look
favorably” on a sentence modification in the future if she would
testify against Zollinger. Ex. A. The State received McMath’s
affidavit on the morning of the hearing. The State objected to the
introduction of both affidavits on the grounds that they did not
timely receive them, the affidavits contained hearsay, and that
cross-examination would be necessary to rebut Zollinger’s
contentions.
The post-conviction court excluded the Hernandez affidavit
after concluding that it contained double hearsay. The affidavit of
McMath regarding the ineffective assistance of trial counsel was
also excluded after Zollinger confirmed that he was not challenging
the effectiveness counsel. Although Zollinger proffered Hernandez’s
motion for modification that was filed on July 11, 2006, the postconviction court admitted the motion only for the purpose of
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demonstrating that it had been filed. Hernandez’s affidavit stated
that she was “not guaranteed a sentence modification” in exchange
for her testimony. Pet. Ex. A.
The post-conviction court denied Zollinger’s motion for a
continuance to permit Hernandez to be transported to the hearing,
who was an inmate at the Rockville Correctional Facility, to testify.
The post-conviction court admitted Hernandez’s affidavit regarding
a possible sentence modification only for the purpose of showing
that it had been filed, but not for the truth of the matters asserted
regarding possible sentencing leniency.
Following the hearing, the post-conviction court denied
Zollinger’s request for relief on October 2, 2012. In relevant part, it
was determined that
16. The court of Appeals ... has determined that the
evidence presented at Petitioner’s trial was sufficient to
sustain Petitioner’s conviction. The Court also found that the
trial court did not err in limiting the defense’s cross
examination of ... Hernandez and that Petitioner’s sentence
was appropriate. Those issues are, therefore, res judicata.
17. Notwithstanding the foregoing, ... issues waived
may be properly presented in support of a claim of ineffective
assistance of counsel, whereas free-standing claims of error
which have been waived are not available in a postconviction proceeding. Timberlake, at 597–98. In this case,
the Court of Appeals rejected Petitioner’s insufficiency of
evidence claim and upheld Petitioner’s conviction. The court
also addressed Petitioner’s contention that the court
wrongfully limited his defense. Issues raised by those claims
are, therefore, res judicata. Petitioner’s complaints of
ineffective assistance of trial and appellate counsel
constitute a maneuver intended to avoid the finality of the
Court of Appeals decision. Nevertheless, the court will
address those claims.
***
20. In the instant case, Petitioner contends that he
was denied the effective assistance of trial counsel because
his attorney, James Stevens, deceased, failed to adequately
investigate the facts and circumstances of his case in order
to disclose evidence that State’s witness, Tonya Hernandez,
was promised favorable treatment in exchange for her
testimony against Petitioner at trial.
21. The record establishes that attorney Stevens
rigorously cross-examined State’s witness Tonya Hernandez
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with respect to her alleged motivation for testifying.... The
[Court of Appeals] noted trial counsel’s “intense crossexamination” of Hernandez. The court concluded that the
State provided evidence sufficient to prove that Petitioner
constructively possessed methamphetamine.
22. Additionally, the matter of whether ... Hernandez
was promised sentencing leniency in exchange for testifying
against Petitioner was raised and addressed by the Indiana
Court of Appeals in conjunction with Petitioner’s argument
that the trial court erred in limiting defense counsel’s cross
examination of Ms. Hernandez. Petitioner is merely couching
this issue for reconsideration as an ineffective assistance of
counsel claim. Nevertheless, Petitioner’s current complaint
that his trial counsel was ineffective for failing to introduce
that evidence fails. The record clearly establishes that trial
counsel attempted to introduce a letter from Hernandez to
Petitioner in an effort to impeach Hernandez regarding her
motivation for testifying, that the trial court permitted voir
dire examination of ... Hernandez regarding the letter outside
the presence of the jury, and that during redirect
examination, trial counsel questioned Hernandez in this
regard.... The Court of Appeals found that the voir dire
examination of Hernandez as arranged for by the trial court,
as well as her testimony, established that the State had
made no promises to her, and that she was going to testify
nonetheless. Id.
23. Trial counsel’s performance is evident from the
record. Further, the Indiana Court of Appeals has concluded
that it was not error to permit the testimony of Tonya
Hernandez. For these reasons, it cannot be said that
attorney Stevens’ representation of Petitioner fell below
objective standards of reasonableness based on prevailing
professional norms. Moreover, given the totality of the
evidence presented at trial, it is improbable that the outcome
of Petitioner’s trial would have been different. Thus, the
court finds that trial counsel’s performance was not
deficient. The court further finds that Petitioner suffered no
unfair prejudice as a result of the performance of trial
counsel. Petitioner has failed to meet the burden of
persuading this court that his trial counsel was ineffective.
***
25. In the instant case, appellate counsel ... McMath
raised three (3) issues on direct appeal, two (2) of which
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Petitioner raised yet again in this proceeding. This court has
determined that Petitioner’s trial counsel was not ineffective.
Accordingly, Petitioner has not carried his burden of
establishing that appellate counsel was ineffective for failing
to raise that issue on direct appeal. In fact, the issues
presented herein were raised and determined on appeal.
Petitioner’s ineffective assistance of appellate counsel claim
also fails.
Zollinger v. State, No. 20A03-1211-PC-450, memo op. at 3-9 (Ind. Ct. App. July
9, 2013).
Mr. Zollinger appealed from the denial of post-conviction relief, raising two
issues: (1) whether the State withheld evidence of an agreement about possible
leniency in exchange for Hernandez’s testimony against him; and (2) whether the
post-conviction court erred in refusing to admit Hernandez’s affidavit into evidence
and that he should have been granted a brief continuance so an incarcerated
witness could testify. (DE 8-10 at 12.) The Indiana Court of Appeals held that res
judicata barred the first issue and that the second issue was without merit. (DE
8-12.) In seeking transfer to the Indiana Supreme Court, Zollinger argued only
that the court of appeals erroneously held that his first issue was barred by res
judicata. (DE 8-13.) The Indiana Supreme Court denied transfer on September 26,
2013. (DE 8-4.) Mr. Zollinger filed his federal petition for writ of habeas corpus
raising the same issue he raised to the Indiana Supreme Court: that the court of

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appeals erroneously held that res judicata barred his claim on post-conviction
review.1 (See DE 1-1 at 5.)
II. ANALYSIS
Mr. Zollinger’s petition is governed by the provisions of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S.
320, 336 (1997). AEDPA allows a district court to issue a writ of habeas corpus
on behalf of a person in custody pursuant to a state court judgment “only on the
ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a). The court can grant an application for
habeas relief if it meets the stringent requirements of 28 U.S.C. § 2254(d), set
forth as follows:
An 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; or
(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.
Under this deferential standard, a federal habeas court must “attend
closely” to the decisions of state courts and “give them full effect when their

1

In fact, the issue and the supporting argument raised in this habeas petition are duplicates of what
he submitted to the Indiana Supreme Court. Mr. Zollinger simply copied the petition for transfer and reused
it here. (See DE 1 at 3; DE 1-1.)

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findings and judgments are consistent with federal law.” Williams v. Taylor, 529
U.S. 362, 383 (2000). A state court decision is contrary to federal law if the state
court arrives at a conclusion opposite to that reached by the U.S. Supreme Court
or reaches an opposite result in a case involving facts materially indistinguishable
from relevant U.S. Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694
(2002). A federal court may grant habeas relief under the “unreasonable
application” clause if the state court identifies the correct legal principle from U.S.
Supreme Court precedent but unreasonably applies that principle to the facts of
the petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
1. Mr. Zollinger’s res judicata claim is procedurally defaulted.
In his petition, Mr. Zollinger asserts that the Indiana Court of Appeals
erroneously decided that res judicata barred his claim for post-conviction relief
concerning an alleged undisclosed agreement between the State and Hernandez.
(DE 1-1 at 4-5.) Mr. Zollinger argues that the issue of the whether the State
committed a Brady violation wasn’t decided on direct appeal so it should not be
barred by res judicata. (Id. at 6.) The respondent asserts that Mr. Zollinger’s claim
is procedurally defaulted. (DE 8 at 10-11.) On this point the court agrees.
Before considering the merits of a habeas petition, a federal court must
ensure that the petitioner has exhausted all available remedies in state court. 28
U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). One
procedural default doctrine rooted in comity concerns precludes a federal court
from reaching the merits of a claim when: (1) the claim was presented to the state
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courts and was denied on the basis of an adequate and independent state law
procedural ground; or (2) the claim wasn’t presented to the state courts and it’s
clear those courts would now find the claim procedurally barred under state law.
Coleman v. Thompson, 501 U.S. 722, 735 (1991); Perruquet v. Briley, 390 F.3d
505, 514 (7th Cir. 2004).
A habeas petitioner can overcome a procedural default by showing both
cause for failing to abide by state procedural rules and a resulting prejudice from
that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Cause sufficient to
excuse a procedural default is defined as “some objective factor external to the
defense” which prevented a petitioner from pursuing his constitutional claim in
state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). A habeas petitioner can
also overcome a procedural default by establishing that the court’s refusal to
consider a defaulted claim would result in a fundamental miscarriage of justice.
House v. Bell, 547 U.S. 518, 536 (2006).
Though Mr. Zollinger raised his claim about an alleged undisclosed
agreement between the State and Hernandez during his post-conviction relief
proceedings (DE 8-10), the Court of Appeals of Indiana refused to consider it
because it was barred by res judicata.
Zollinger frames the issue in this appeal as to whether he was
denied due process of law because the State improperly withheld
evidence under Brady that related to Hernandez’s contention that she
would receive consideration of a modification of sentence in her case.
More specifically, Zollinger claims that the unwritten agreement
between the State and Hernandez is “material under Brady v.
Maryland and the Stat’s suppression of such evidence . . violated his
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constitutional right to due process, warranting a new trial.”
Appellant’s Br. P. 14.
In resolving this issue, we note that Zollinger has already
presented this precise issue on direct appeal regarding the disclosure
of an alleged sentence modification agreement between the State and
Hernandez that he is now asserting on post-conviction relief. As the
post-conviction court correctly determined, this claim is res judicata.
See State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000) (holding that
the doctrine of res judicata prevents the repetitious litigation of that
which is essentially the same dispute). Res judicata also dictates that
a judgment rendered on the merits is an absolute bar to a
subsequent action between the same parties on the same claim or
demand. Smith v. State, 825 N.E.2d 783, 789 (Ind. 2005).
Issue preclusion, which is also referred to as collateral
estoppel, precludes relitigation of issues actually and necessarily
decided in an earlier litigation between the same parties. Scott v.
Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1999). Moreover, “[a]
petitioner for post-conviction relief cannot escape the effect of claim
preclusion merely by using different language to phrase an issue and
define the alleged error.” Ben-Ysrayl, 738 N.E.2d at 258.
In Zollinger’s direct appeal, we observed that his counsel
subjected to Hernandez to “intense cross-examination,” in an effort
to discover whether she had received any promises of sentence
modification or other leniency from the State in exchange for her
testimony against Zollinger. Slip op. at 8-10. It was determined that
Zollinger could only show that Hernandez had a “hope” of leniency,
and the State had not promised her any sentence modification. Id. at
10.
Because this issue has already been decided Zollinger may not
receive a second review of this claim by contending that there was a
violation of due process, rather than by arguing, as he did in his first
appeal, that the trial court abused its discretion and limited its crossexamination of Hernandez. Indeed, the claim as to whether the State
failed to disclose a sentence modification agreement with Hernandez
had already been decided adversely to him on appeal. See Godby v.
State, 809 N.E.2d 48, 483-84 (Ind. Ct. App. 2004) (holding that
freestanding claims of due process violations are procedurally
defaulted on post-conviction because they are claims that would have
been known and available on direct appeal); see also Bunch v. State,
778 N.E.2d 1285, 1289 (Ind. 2002) (observing that freestanding
claims of fundamental error cannot be raised on post-conviction even
if they have not been previously litigated). As a result, Zollinger’s
rephrasing of his claim from his direct appeal as a fundamental error
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in post-conviction proceeding avails him of nothing. Therefore,
Zollinger’s contention is res judicata because the precise issue that
he now raises was decided adversely to him on direct appeal.
State v. Zollinger, 20A03-1211-PC-450, DE 8-12 at 10-12.
The respondent argues that the Indiana Court of Appeals’ ruling, based on
res judicata, provides an adequate and independent state ground that blocks
federal review. Mr. Zollinger doesn’t argue that this is not an independent and
adequate State law reason for dismissing this claim, nor does he provide a basis
for excusing this default. Consequently, this claim is procedurally defaulted and
can’t provide a basis for habeas relief. See Szabo v. Walls, 313 F.3d 392, 395 (7th
Cir. 2002).
That Mr. Zollinger believes the court of appeals misapplied the doctrine of
res judicata isn’t a factor here. As the Supreme Court has stated, “federal habeas
corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 131 S.Ct.
859, 861 (2001) (citation omitted). A federal habeas court doesn’t have the
authority to review state-court interpretations of state law. Curtis v. Montgomery,
552 F.3d 578, 582 (7th Cir. 2009) (citation omitted). This court has no authority
to decide whether the state appellate court erred when it applied state evidentiary
standards. Williams v. Chrans, 894 F.2d 928, 937 (7th Cir. 1990).
2. Mr. Zollinger’s claim that the State failed to disclose
an agreement with Hernandez does not warrant habeas relief.
Procedural default aside, Mr. Zollinger’s underlying claim is without merit.
Even though Mr. Zollinger presented his claim only as an error in the application

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of res judicata — which is procedurally barred — it seems clear that what he
really wants is for the court to address the underlying Brady claim of whether the
State withheld evidence of a promise to Hernandez of a sentence modification for
her testimony against him at trial. (See DE 1-1 at 5.) Liberally construing his
petition, this court will address that underlying claim.
Mr. Zollinger asserts that he was denied a fair trial because the state
withheld evidence that it made a deal of leniency, unknown to him, with
Hernandez in exchange for her testimony at his trial. Mr. Zollinger argues that the
prosecutor’s actions violated his rights under the U.S. Constitution. (DE 1-1 at 6,
fn 1.) “When the government deliberately or inadvertently withholds evidence that
is material and favorable to the defense, it violates the defendant’s right to a fair
trial, which is guaranteed by due process.” Ben-Yisrayl v. Buss, 540 F.3d 542, 552
(7th Cir. 2008) (citing Brady v. Maryland, 373 U.S. 83 (1963).) The government
must disclose impeaching or exculpatory information, regardless of whether it is
specifically requested by the defendant. Id. This includes information about an
agreement, either express or tacit, between the prosecution and a state witness.
Wisehart v. Davis, 408 F.3d 321, 324 (7th Cir. 2008). The state courts never
reached this issue, so the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449,
472 (2009).
Mr. Zollinger’s Brady claim is premised on an alleged deal the prosecutor
made with Ms. Hernandez. Ms. Hernandez was arrested on the same day as Mr.
Zollinger after police searched the residence they shared in Goshen. Like Mr.
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Zollinger, Ms. Hernandez was charged with various drug offenses. She pleaded
guilty without the benefit of a plea agreement and had been sentenced by the time
she testified at Mr. Zollinger’s trial.
At Mr. Zollinger’s trial, Ms. Hernandez testified about Mr. Zollinger’s drug
dealing. On direct examination, she testified that no promises had been made by
the State in exchange for her testimony. She was also questioned by defense
counsel about her efforts to obtain a modification of her sentence. She
acknowledged that she hoped to get a sentence modification as a result of
testifying in his trial, but that it wasn’t guaranteed. Defense counsel also
questioned Ms. Hernandez at length outside the jury’s presence about any
agreement. Ms. Hernandez was clear that the deputy prosecutor made her no
promises.
In the post-conviction proceedings, Mr. Zollinger submitted an affidavit from
Ms. Hernandez claiming that shortly before trial the deputy prosecutor and an
officer from the Goshen Police Department visited her at the jail. In the affidavit,
Hernandez provides, “I was not guaranteed a sentence modification, but I
understood Denise Robinson and Wade Branson’s statements to mean that I
would get a sentence modification later if I testified against Bill Zollinger.” Mr.
Zollinger appears to believe Ms. Hernandez’s statements show an agreement
between the State and Ms. Hernandez. In light of this evidence, Mr. Zollinger
claims that the prosecutor violated Brady by failing to disclose that he had an

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agreement with Hernandez. The post-conviction court rejected this affidavit on
hearsay grounds.
Even if the hearsay ruling missed the mark, the affidavit wouldn’t establish
any agreement between the State and Ms. Hernandez. First, Ms. Hernandez’s outof-court statements wouldn’t be admissible at trial. IND. R. EVID. 801.
Furthermore, Ms. Hernandez’s affidavit explains that there was no agreement. At
most, Ms. Hernandez sets out that, based on some undisclosed statement, she
understood that she would receive a sentence modification if she testified. This
vague statement is different from what she repeatedly and clearly testified to at
trial: that there was no agreement. Based on this evidence, this court can only
conclude that there was no agreement between the State and Hernandez that
needed to be disclosed, and thus no Brady violation. Abbott v. United States, 195
F.3d 946, 950 (7th Cir. 1999). Ms. Hernandez testified with the hope that the
prosecutor would help her obtain a modification, but not pursuant to any specific
agreement. Mr. Zollinger didn’t present any admissible evidence to the contrary.
Even if this claim was not procedurally defaulted, Mr. Zollinger hasn’t established
that a Brady violation.
III. Certificate of Appealability
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the court
must consider whether to grant Mr. Zollinger a certificate of appealability. To
obtain a certificate of appealability, the petitioner must make a substantial
showing of the denial of a constitutional right by establishing “that reasonable
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jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). As is fully explained above, Mr. Zollinger’s claim is, if not
procedurally defaulted, without merit. He hasn’t provided any meritorious basis
for excusing his default, nor has he made a substantial showing of the denial of
a constitutional right, nor could jurists of reason debate the outcome of the
petition or find a reason to encourage him to proceed further. Accordingly, the
court declines to issue Mr. Zollinger a certificate of appealability.
For these reasons, the court:
(1) DENIES the petition (DE 1); and
(2) DECLINES to issue a certificate of appealability.
SO ORDERED.

ENTERED: August 16, 2016
/s/ Robert L. Miller, Jr.
Judge
United State District Court

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