Pollini v. Robey

• Decision Date: 25 November 2020
• Docket Number: No. 19-5131,19-5131
• Citation: 981 F.3d 486
• Parties: Jasper POLLINI, Petitioner-Appellant, v. Amy ROBEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

981 F.3d 486

Jasper POLLINI, Petitioner-Appellant,

v.Amy ROBEY, Warden, Respondent-Appellee.

No. 19-5131

United States Court of Appeals, Sixth Circuit.

Argued: August 5, 2020

Decided and Filed: November 25, 2020

ARGUED: Timothy G. Arnold, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. James C. Shackleford, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Timothy G. Arnold, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. James C. Shackleford, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: GILMAN, BUSH, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

Jasper Pollini committed a burglary, fled the scene, and, upon returning to retrieve his burglary tools, shot and killed a man. Following his conviction in Kentucky state court, Pollini asserted numerous grounds for relief in a federal habeas petition.

The district court, however, rejected each of them.

We granted Pollini a certificate of appealability with respect to two claims relating to the alleged ineffective assistance of his appellate counsel in state court. On the first claim, we agree with the district court that the claim fails the prejudice prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But for the other, we disagree that Pollini procedurally defaulted the claim. Accordingly, we affirm in part, vacate in part, and remand the case to the district court for further proceedings.

I.

Pollini's Crimes And Trial. While burglarizing a garage late one evening, Jasper Pollini was confronted by Dan Zeigler, the garage's owner, at which point Pollini fled the scene. Pollini v. Commonwealth , 172 S.W.3d 418, 421 (Ky. 2005). Zeigler then alerted his neighbor, Byron Pruitt, that a burglar was in the area. Id.

Pollini soon realized he had left his tools in Zeigler's garage. Arming himself with a handgun, Pollini recruited his sister, Crystal Plank, to drive him back to the garage. Id. at 421–22. As the two neared the garage, Pruitt approached their car with a flashlight. Id. Seeing a light in the distance, Pollini fired a gun shot into the dark. Id. Tragically, the shot struck and killed Pruitt.

Pollini was charged with various crimes, including murder. Plank was charged with facilitation of murder. Following their arrests, Pollini and Plank each gave a recorded statement to the police recounting the events that unfolded the night of Pruitt's murder. Both statements assert that Pollini did not intend to kill Pruitt when the shot was fired. Because their respective charges arose out of the same set of facts, the two were tried together as co-defendants. During trial, Plank's attorney prepared a transcript of Plank's statement to the police and sought to admit the transcript along with the audiotape of her statement into evidence. The court admitted the audiotape. But it denied admission of the transcript on the grounds that the Commonwealth had not been given the opportunity to verify the transcript's accuracy in its entirety. During closing arguments, however, the Commonwealth was permitted to exhibit a portion of the transcript to the jury. Yet during its deliberations, the jury had access to only the audiotape of Plank's statement and not the transcript.

This proved relevant when the jury had difficulty locating or understanding a portion of Plank's statement on the audiotape. That obstacle prompted the jury to write the judge to ask: "Does there exist a transcript of the Plank conversation w/Police? Difficult to locate on tape, if so, can we pls request?" Without communicating with the parties, the judge responded to the jury: "There's none available." There is no dispute between the parties that this ex parte jury communication violated Kentucky Rule of Criminal Procedure 9.74, which prohibits judge-jury communication without apprising counsel of the communication. See Pollini v. Litteral , No. 3:14-cv-689-DJH-RSE, 2019 WL 236721 at *3, 2019 U.S. Dist. LEXIS 7459 at *8 (W.D. Ky. Jan. 15, 2019) ; see also Ky. RCr 9.74 ("No information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant ... and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.").

Following its deliberations, the jury found Pollini guilty of murder, burglary in the first degree and second degree, and receiving stolen property. During the ensuing sentencing phase, the court submitted to the jury the following aggravated circumstance for their consideration: Was Pollini in the process of committing burglary when he killed Pruitt? The jury answered in the affirmative, subjecting Pollini to an increased range of sentencing options. From those options, the jury recommended a life sentence without the possibility of parole for 25 years. The trial judge agreed and handed down the recommended sentence.

Pollini's Direct Appeals . Pollini raised a host of issues on direct appeal. Chief among them was his contention that there was insufficient evidence to justify his sentence because he was not committing a burglary when he killed Pruitt. According to Pollini, the shooting occurred after the burglary had ended, when Pollini was returning to recover his tools. The Kentucky Court of Appeals found no merit in Pollini's argument. But the Kentucky Supreme Court did, and accordingly vacated Pollini's sentence and remanded the case. Because Pollini's appellate counsel failed to seek a new trial to remedy the jury's error, the remand was limited to a resentencing without the inclusion of the aggravating circumstance. See Pollini , 172 S.W.3d at 432. Notable here is the fact that Plank, in raising a similar challenge to the jury's finding that the two were committing a burglary at the time of the killing, did argue for a new trial on appeal. And when the Kentucky Court of Appeals vacated her conviction for facilitating burglary in the first degree for insufficient evidence, it remanded her case for a new trial. Plank v. Commonwealth , No. 2003-CA-001861-MR, 2005 WL 1313838, at *8–9, 2005 Ky. App. Unpub. LEXIS 777, at *22–25 (Ky. Ct. App. June 3, 2005).

On remand, Pollini's sentence was reduced to simple life imprisonment. Pollini v. Commonwealth , No. 2006-SC-000835-MR, 2008 WL 203035, at *1, 2008 Ky. Unpub. LEXIS 17, at *2 (Ky. Jan. 24, 2008). Pollini again appealed, but to no avail. And here again, it bears comparing what Pollini and Plank argued in their respective appeals. In neither of his direct appeals did Pollini argue that the trial judge violated Rule 9.74 when it communicated ex parte with the jury. Plank, by comparison, did raise the ex parte issue on direct appeal. And while the Kentucky Court of Appeals vacated her conviction on other grounds, the court also found it "very bothersome ... that counsel was never even given notice that [the jury] had requested the transcript." Plank , 2005 WL 1313838, at *9, 2005 Ky. App. Unpub. LEXIS 777, at *25.

Pollini's State Court Collateral Attack. Having exhausted his direct appeal options, Pollini, with new counsel, collaterally attacked his state court proceedings. See Ky. RCr 11.42 (governing motions to vacate, set aside, or correct sentences). Pollini asserted several claims of ineffective assistance of counsel. Among them was Pollini's Rule 9.74 argument that his prior counsel was constitutionally ineffective, in violation of the Sixth Amendment standard articulated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because "counsel failed to raise the improper ex parte communication between the trial court and the jury." Unlike the other ineffective assistance of counsel claims Pollini asserted, which he expressly limited to the conduct of his trial counsel, Pollini did not specify which counsel—trial or appellate—failed to raise the Rule 9.74 issue.

Following the trial court's denial of his request for collateral relief, Pollini appealed. The Kentucky Court of Appeals interpreted Pollini's argument regarding the failure to raise the Rule 9.74 violation as an error by "both his trial and appellate counsel." Pollini v. Commonwealth , No. 2009-CA-000964-MR, 2010 LEXIS 128, at *15 (Ky. Ct. App. July 16, 2010). As to Pollini's trial counsel, the appeals court found nothing that constituted deficient performance. Id. at *15–16. And as to Pollini's appellate counsel, the appeals court explained that Kentucky law did not recognize ineffective assistance of appellate counsel claims in cases where an appeal was decided following a merits review. Id. at *15. Rather, Kentucky law recognized claims for ineffective appellate counsel in just two instances: (1) if a defendant's appeal was dismissed because of ineffective assistance of counsel; or (2) if a defendant's conviction was not appealed due to counsel's neglect. Boykin v. Webb , 541 F.3d 638, 647–48 (6th Cir. 2008) (citing Hicks v. Commonwealth , 825 S.W.2d 280, 281 (Ky. 1992) ). Accordingly, the Kentucky Court of Appeals held that Pollini's ineffective assistance of appellate counsel claim was not a "cognizable issue in this jurisdiction." Pollini , 2010 LEXIS 128, at *15 (quoting Lewis v. Commonwealth , 42 S.W.3d 605, 614 (Ky. 2001) ).

Proceeding pro se, Pollini sought discretionary review in the Kentucky Supreme Court. Around the same time, the Kentucky Supreme Court, in Hollon v. Commonwealth , overruled Hicks and "recognize[d] [ineffective assistance of appellate counsel] claims premised upon appellate counsel's alleged failure to raise a particular issue on direct appeal." 334 S.W.3d 431, 436 (Ky. 2010) (overruling Hicks , 825 S.W.2d at 281 ). In light of this change in law, the Kentucky Supreme Court remanded Pollini's case for consideration as to whether Pollini's direct appeal counsel was ineffective when he failed to raise the alleged ex parte contact between the judge and jury. See Pollini v....