Holleman v. Duckworth, 95-3152

• Citation: 155 F.3d 906
• Decision Date: 15 September 1998
• Docket Number: No. 95-3152,95-3152
• Parties: Robert Lee HOLLEMAN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 906

155 F.3d 906

Robert Lee HOLLEMAN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.

No. 95-3152.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 11, 1998.

Decided Sept. 15, 1998.

Jerold S. Solovy, John J. Hamill (argued), Jenner & Block, Chicago, IL, for Robert Lee Holleman.

Bridget L. Field, Office of Attorney General, Criminal Appeals Division, Chicago, IL, Michael A. Hurst (argued), Office of Attorney General, Indianapolis, IN, for Jack R. Duckworth.

Before CUDAHY, EASTERBROOK and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

The petitioner appeals from a judgment dismissing without prejudice his application for a writ of habeas corpus. The district court concluded that the petitioner had abused the writ. Back in 1981 the petitioner had filed an application that attacked the same judgment and that was adjudicated on the merits. On that occasion, the district court had denied the petition, a judgment that was upheld on appeal. See Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983). The petitioner filed this petition on February 21, 1995, so the 1996 habeas corpus reforms do not apply. See Pisciotti v. Washington, 143 F.3d 296, 299-300 (7th Cir.1998). Applying the old version of the habeas law, we conclude that the present record is inadequate to demonstrate abuse of the writ. 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.

Background

In October 1976--at least in early October--Scott Moore, Robin Opfer, and Robert Lee Holleman shared an apartment at 5142 South Blackstone Avenue in Chicago. At three in the morning on October 6, 1976, Hammond, Indiana police discovered Robin Opfer's body just off the Indiana Toll Road with eight bullet wounds. According to the autopsy, Opfer was killed by a gunshot wound to the chest and lungs that caused extensive bleeding. On October 11, 1976, Chicago police officers found Moore's body in the apartment. See United States ex rel. Holleman v. Duckworth, 770 F.2d 690 (7th Cir.1985); People v. Holleman, 82 Ill.App.3d 409, 37 Ill.Dec. 782, 402 N.E.2d 784 (1980). At a South Bend, Indiana motel on October 17, police from Michigan and Indiana arrested Holleman for armed robbery, pursuant to a Michigan warrant. Holleman was brought to the St. Joseph County, Indiana jail on the Michigan charge, as well as on a federal charge for the October 15, 1976 robbery of a South Bend federal credit union. See Holleman v. United States, 721 F.2d 1136 (7th Cir.1983); United States v. Holleman, 575 F.2d 139 (7th Cir.1978).

On several occasions during his time in custody, Holleman expressed a desire to make a voluntary statement to the police. In his statements, Holleman explained that on October 3, 1976, he learned that Scott Moore would be acquiring an ounce of cocaine. He saw an opportunity to, in the argot of that period, "rip off" Moore. Holleman enlisted the help of Frank Love. Holleman and Love and an acquaintance of Love, Mike Cheatem, agreed that Love and Cheatem would come to Moore's apartment on the morning of October 4, on the pretense of buying some heroin. Holleman later told Moore to expect some customers. Around nine in the morning on October 4, Love, Cheatem and another man, Robert Williams, arrived on schedule at Moore's apartment. When Love entered Moore's bedroom, brandished a revolver and explained to Moore that the transaction was to be more one-sided than Moore had been led to believe, Moore reached for the gun he kept under his pillow. Love then shot Moore in the back several times, took some heroin and all Moore's money, covered up the body, and went into the living room, shutting the door to Moore's bedroom on the way out. Then Love and the other survivors waited for the return of Robin Opfer, who had gone out to the store earlier that morning. See 1977 Exs. 20 & 21.

According to Holleman's statements, when Opfer returned to the apartment, Love grabbed her, and with Williams' help, took her into another bedroom, laid her on a mattress, tied her up and gagged her. Sometime later, Love shot Opfer once in the back. Opfer was still alive the next day, and Love fired another shot at her, but that attack did not kill her either. The next evening the men--Holleman, Love, Williams and Cheatem--placed her inside Moore's car and drove to Hammond, Indiana, via the Chicago Skyway. They got off the Skyway near the Indiana state line, where the Skyway connects with the Indiana Toll Road. Near the intersection of 108th Street and Indianapolis Boulevard, Love told Opfer to get out of the car. Love followed her out of the car, continued to walk behind her, and then shot her from behind about six times. After thus disposing of Opfer, the quartet returned to Moore's apartment. Back at the apartment, Holleman took Moore's billfold and identification, then claimed Moore's car, which he drove to South Bend. In South Bend, he used Moore's name to check into the motel where the police found him about 10 days later. See id.

On October 21, the Hammond police arrested Holleman for the murder of Robin Opfer. On November 19, a Lake County, Indiana grand jury indicted Holleman, Love, Cheatem and Williams for murder in the first degree and murder in the perpetration of a robbery. In May 1977, Holleman's case was tried before a jury in Lake County Superior Court. Holleman was acquitted of first degree murder and convicted of felony murder. He was sentenced to spend the rest of his life in the Indiana State Prison. He was 23 years old. Holleman appealed to the Indiana Supreme Court on the grounds that his statements to the police were improperly admitted. The Indiana Supreme Court turned down his appeal on February 5, 1980. See Holleman v. Indiana, 272 Ind. 534, 400 N.E.2d 123 (1980). Holleman did not seek review by the United States Supreme Court. See Jones v. Page, 76 F.3d 831, 851 (7th Cir.1996).

On October 15, 1981, Holleman, apparently proceeding pro se, filed his first application for a writ of habeas corpus. His petition, like his direct appeal to the Indiana Supreme Court, only raised the propriety of admitting some of his confessions. See 700 F.2d at 393. In April 1982, the District Court for the Northern District of Indiana dismissed the petition on the merits, and this court affirmed that judgment in 1983. See id. at 397.

Also on October 15, 1981, Holleman filed a pro se petition for post-conviction relief in Lake County Superior Court. The original petition asserted ineffective assistance of counsel on two grounds--failure to introduce expert testimony about how long withdrawal from heroin takes and failure to timely file notice of an insanity defense. The matter progressed at a leisurely pace on the Superior Court docket. In 1984, an Indiana deputy public defender entered an appearance on behalf of Holleman. According to Holleman, sometime after 1987 one of Holleman's attorneys in the public defender's office interviewed Holleman's trial attorney, James Frank, who by that time was no longer a practicing lawyer. See Frank v. United States, 914 F.2d 828, 829 (7th Cir.1990); In re Frank, 504 N.E.2d 285 (Ind.1987); cf. In re Frank, 440 N.E.2d 676 (Ind.1982). No hearing had yet been scheduled when Holleman filed an amended petition on October 24, 1990, adding the claim that Frank "was ineffective because he operated under an actual conflict of interest which adversely affected his performance, especially his ability to evaluate the petitioner's defenses and crossexamine several witnesses." Holleman filed two more amended petitions during 1991.

On February 12, 1992, the Lake County Superior Court held a hearing on the third amended petition. Holleman's principal witness in the February 12, 1992 hearing was his old trial lawyer, former deputy public defender James Frank. Frank explained that he had represented Love prior to Holleman's 1977 trial. When Frank represented Love, Love told Frank that on the day Opfer was killed, Love had been in South Bend, where he cashed a U.S. savings bond and received treatment at a venereal disease clinic. Tr. 190. According to Frank, Indiana dismissed the murder charges against Love after Frank discovered that the savings bond indicated the date and time it was cashed, that the bank clerk who handled the transaction remembered Love and identified him as the person who cashed the bond, and that the clinic's records and one of its nurses, Mary Schaar, supported Love's story. On the grounds of insufficient evidence, Indiana dismissed the charges against Love without prejudice in February 1977 (and against Cheatem and Williams in November 1977).

Frank stated that the judge conducting Holleman's trial had appointed Frank to represent Holleman when Holleman's original attorney, also with the public defender's office, withdrew:

Judge Clement asked me if I saw any conflict in--as a result of my having represented Frank Love, if I saw any conflict in my representation of Mr. Holleman, and I said off the top of my head, no, I didn't, so he was aware that I was completely versed on the facts of the case. I believe Mr. Holleman had a speedy trial motion filed, and I think because of my familiarity the appointment was something of a natural, I guess.

Tr. 192-93. Frank told the judge that he did not see any problems. As far as Frank could recall, neither Holleman nor the prosecutors were privy to this discussion. See id. (There appears to be no official record of this colloquy on the appointment of Frank to represent Holleman.)

Frank went on to describe his "shock" when Indiana called Mary Schaar to testify at Holleman's trial. He had apparently not foreseen that she would be called by the government in its case-in-chief. Frank then addressed why he did not cross-examine Schaar:

Q. [Petitioner's counsel]: [D]id you consider cross-examining Mary Schaar?

A. [Frank]: Of course not.

Q. Why not?...