UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

WILLIAM ZOLLINGER, )

)

Petitioner, )

)

v. ) CAUSE NO. 3:14-CV-1834 RM

)

SUPERINTENDENT, )

)

Respondent. )

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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