Holleman v. Cotton

• Decision Date: 19 August 2002
• Docket Number: No. 00-3791.,00-3791.
• Citation: 301 F.3d 737
• Parties: Robert Lee HOLLEMAN, Petitioner-Appellant, v. Zettie COTTON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 737

301 F.3d 737

Robert Lee HOLLEMAN, Petitioner-Appellant, v. Zettie COTTON, Respondent-Appellee.

No. 00-3791.

United States Court of Appeals, Seventh Circuit.

Submitted September 13, 2001.^*

Decided August 19, 2002.

COPYRIGHT MATERIAL OMITTED

Douglas B. Sanders (submitted), Baker & McKenzie, Chicago, IL, for Petitioner-Appellant.

James B. Martin, Office of the Atty. Gen., Indianapolis, IN, for Respondent-Appellee.

Before CUDAHY, EASTERBROOK and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

In this successive appeal, Robert Holleman argues that the district court erred in concluding that he could not demonstrate cause and prejudice with respect to his ineffective assistance of counsel claims so as to survive a dismissal of his second petition under 28 U.S.C. § 2254 as an abuse of the writ. We affirm.

I.

Holleman was one of four people charged with the murder of Robin Opfer in 1977. Holleman v. Miller, 101 F.Supp.2d 700, 701 (N.D.Ind.2000). Prior to his indictment for the murder, Holleman had made some incriminating statements to the police, but his statements also implicated Frank Love as the shooter. Holleman v Duckworth, 155 F.3d 906, 908 (7th Cir. 1998). The trial judge, Lake County Superior Court Judge James Clement initially appointed Stanley Jablonski to represent Holleman. Holleman, 101 F.Supp.2d at 701. When a disagreement arose between Holleman and Jablonski, Judge Clement allowed Jablonski to withdraw and appointed James Frank to represent Holleman. Id. at 702. Frank had earlier represented co-defendant Love in a separate trial. Id. at 701. The district court found that Frank was chosen because he was familiar with the case and Holleman had filed a speedy trial motion. Id. at 702. Before appointing Frank to represent Holleman, Judge Clement prudently asked Frank whether there would be any conflict if Frank represented Holleman, and Frank stated that he saw none. Id. at 702. This inquiry occurred outside of Holleman's presence, at a hearing unrelated to his case. Id.

Frank was available to represent Holleman because he had been successful in persuading the prosecutor to dismiss the murder charges against Love. The prosecutor had dismissed those charges without prejudice based upon insufficient evidence; Frank had persuaded the prosecutor that Love was elsewhere (in South Bend) at the time that Holleman had said Love was shooting Opfer. Id. As part of an alibi defense in the Love trial, Frank had notified the prosecutor that he would call Mary Schaar to testify in support of Love's alibi. Id.

During Holleman's trial, the prosecutor called the same Mary Schaar as a surprise witness, apparently to cast doubt on Holleman's statements attributing the shooting to Love. Id. Frank unsuccessfully objected to the Schaar testimony on grounds of relevancy, but he did not cross-examine Schaar. Id. Later, Frank admitted that he did not cross-examine Schaar to impeach her credibility because he feared that that course could lead to the prosecution's re-instituting the charges against Love. Id.

Holleman was acquitted of first degree murder but he was convicted of felony murder. He was sentenced to life imprisonment. Holleman, 155 F.3d at 908. This outcome suggests that the jury was not persuaded by the efforts of the state to picture Holleman as the shooter instead of Love (whom Holleman had fingered as the shooter).

After exhausting his direct appeal and state post-conviction procedures in 1981, Holleman filed an application for federal collateral relief pursuant to 28 U.S.C. § 2254, but did not raise a claim of ineffective assistance of counsel in that petition. That petition was denied, and this Court affirmed the denial. Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983). Subsequently, Jeffery Evans was assigned to be Holleman's new appellate counsel. After a diligent search, Evans located Frank (who had been disbarred at that point) and got Frank to admit that Frank had an actual conflict of interest that adversely affected his performance during Holleman's trial.

On February 21, 1995, Holleman filed a second habeas petition, in which he raised two claims (among others). First, he argued that the trial court failed to make a proper inquiry into whether Frank had a conflict of interest—the "judicial inquiry" claim. See Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1977) (holding that a trial court must inquire into the propriety of multiple representation where one party makes a timely objection); Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (holding that a trial court needs to initiate an inquiry only if it knows or reasonably should know that a particular conflict exists). Second, he argued that Frank's conflict of interest precluded Frank from providing effective assistance of counsel—the "attorney conflict" claim. See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (holding that an actual conflict of interest that adversely affects defense counsel's performance is a violation of the Sixth Amendment). The state objected that Holleman failed to raise these claims in his first petition, so Holleman's second petition should be dismissed as an abuse of the writ unless Holleman could show cause and prejudice. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

On May 31, 1995, the district court denied the petition as an abuse of the writ. On September 15, 1998, we vacated the district court's order and remanded for an evidentiary hearing to determine whether Holleman could demonstrate cause and prejudice. Holleman, 155 F.3d at 911-12 ("Accordingly, we remand the case for an evidentiary hearing to establish what the petitioner knew about the claim, when he knew it, and the earliest he reasonably could have known it."). We held that the record before us did not establish that Holleman knew of the attorney conflict or about the trial judge's knowledge of a potential conflict of interest. Id. at 910-11. Further, the record did not "establish as a matter of law whether what Holleman did not know but could have `discovered upon reasonable investigation' would have supported a claim for relief." Id. at 911 (quoting McCleskey, 499 U.S. at 498, 111 S.Ct. 1454).¹ Therefore, we remanded the case to a different judge for an evidentiary hearing to determine whether Holleman "could have discovered through reasonable diligence and investigation a conflict of interest claim." Id. (internal citation and quotations omitted). Further, we held that Holleman must also demonstrate prejudice to overcome the abuse-of-the-writ defense. Id. We indicated that the record before us suggested that the state trial judge knew or should have known of the possibility of a conflict of interest such that the trial judge should have made an adequate inquiry into the conflict. Id.

An evidentiary hearing was conducted on May 25, 2000. After that hearing, the district court denied Holleman's second petition as an abuse of the writ. Holleman, 101 F.Supp.2d at 706. The district court found that the trial judge did not know, and could not have known, about the conflict. Id. at 704-5. The district court thus concluded that Holleman could not show prejudice with respect to his judicial inquiry claim. Id. at 705. The district court also found that Holleman could have raised the judicial inquiry claim in his first petition, but that he inexcusably failed to do so. Id. at 705. Further, the district court found that Holleman had reason to inquire into the attorney conflict claim, and that if he had inquired, he would have been told of the conflict by Frank. Id. at 706. Thus, the district court concluded that Holleman could not show cause with respect to either claim. Id. Holleman appeals.

II.

This court has jurisdiction under 28 U.S.C. § 1921. We review issues of law de novo, and issues of fact, for clear error. See Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir.2001). A factual finding is clearly erroneous when, after reviewing the complete record, we are left with "the definite and firm conviction that a mistake has been committed." Thornton v. Brown, 47 F.3d 194, 196 (7th Cir.1995). However, in habeas corpus proceedings, mixed questions of law and fact are reviewed de novo. See Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (same).

III.

"The doctrines of procedural default and abuse-of-the-writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have an opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments." McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The cause and prejudice standard in an abuse-of-the-writ case is the same as in a procedural default case. Id. at 494-95, 111 S.Ct. 1454. "The standard is an objective one." Id. at 495, 111 S.Ct. 1454. Holleman can show cause if he can demonstrate that he did not know, and could not have discovered after reasonable investigation, facts sufficient to raise the claim in his first petition. Id. at 499, 111 S.Ct. 1454. Holleman can show prejudice as to the attorney conflict claim if he can demonstrate that an actual conflict adversely affected the performance of his trial counsel and as to the judicial inquiry claim if the claim could have succeeded. See Cuyler v. Sullivan, 446 U.S. 335, 348-349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (counsel's conflict of interest); Mickens v. Taylor, ___ U.S. ___, 122 S.Ct. 1237, 1244, 152 L.Ed.2d 291 (2002) (trial court's failure to inquire).

We affirm the dismissal of Holleman's second petition because Holleman cannot demonstrate both cause and prejudice to meet the abuse-of-writ objection as to either claim. While he may be able to...