Holleman v. Miller, No. 3:95CV0123RM.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtMiller
Citation101 F.Supp.2d 700
PartiesRobert Lee HOLLEMAN, Petitioner v. Charles MILLER, Respondent.
Docket NumberNo. 3:95CV0123RM.
Decision Date08 May 2000

Page 700

101 F.Supp.2d 700
Robert Lee HOLLEMAN, Petitioner
v.
Charles MILLER, Respondent.
No. 3:95CV0123RM.
United States District Court, N.D. Indiana, South Bend Division.
May 8, 2000.

Page 701

Robert Lee Holleman, Pendleton, In, pro se.

David J Bradford, David C Layden, Jenner and Block, Chicago, IL, for Robert Lee Holleman.

James B Martin, Barbara Gasper Hines, Indiana Attorney General, Indianapolis, IN, for Charles Miller.

MEMORANDUM AND ORDER

MILLER, District Judge.


In 1981, Robert Lee Holleman filed his first petition for writ of habeas corpus addressed to his 1977 conviction and life sentence for felony murder. Holleman v. State, 272 Ind. 534, 400 N.E.2d 123 (Ind. 1980). The denial of that petition was affirmed on appeal. Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983). In 1995, Mr. Holleman filed a second1 habeas corpus petition, which was denied as an abuse of the writ. The court of appeals reversed and remanded for an evidentiary hearing to determine facts pertinent to whether the 1995 petition constitutes an abuse of the writ. Holleman v. Duckworth, 155 F.3d 906 (7th Cir.1998). The court conducted the evidentiary hearing on May 5, 2000,2 and, based on the facts set forth below and the reasons set forth below, again concludes that Mr. Holleman's 1995 petition must be denied as an abuse of the writ.

The facts are largely undisputed. Mr. Holleman and Frank Love were among four people charged with the 1976 murder of Robin Opfel in 1976. Lake County Superior Court Judge James Clement, to whom the case was assigned, appointed attorney Stanley Jablonski to represent Mr. Holleman, and appointed attorney James Frank to represent Mr. Love. Near the time of his arrest, Mr. Holleman gave

Page 702

statements to police incriminating himself and naming Mr. Love as the actual shooter.

Mr. Love's trial was scheduled first, but the prosecution dismissed the charge against Mr. Love, without prejudice, on February 7, 1977, the scheduled trial date. Mr. Frank had persuaded the prosecutor that Mr. Love was in South Bend when Mr. Holleman said Mr. Love was shooting Robin Opfel. Mary Schaar, a nurse at a South Bend medical facility supported Mr. Love's alibi, as Mr. Frank had told the prosecutor she would; Mr. Frank had filed a notice of alibi that included Ms. Schaar's name. The prosecution's motion to dismiss explained simply that, "The State has reviewed its evidence in the case against Frank Love and determined that it has insufficient evidence to sustain a successful conviction at this time."

A conflict arose between Mr. Holleman and Mr. Jablonksi. Judge Clement granted Mr. Jablonski's motion to withdraw on May 19, 1977, after denying in part a motion to suppress Mr. Holleman's statements to police. Mr. Holleman had filed a pro se motion for a speedy trial on March 21, 1977. At an unrelated hearing not attended by Mr. Holleman, Judge Clement asked Mr. Frank whether there would be any conflict if Mr. Frank represented Mr. Holleman, and Mr. Frank said he saw none (Mr. Frank believes Judge Clement chose him because he knew the facts of the case and a speedy trial demand had been made). Judge Clement appointed Mr. Frank to represent Mr. Holleman as co-counsel during the pendency of the suppression motion that Mr. Jablonski had prepared. When the suppression motion was decided and Mr. Jablonski's withdrawal motion was granted, Mr. Frank moved to allow Mr. Holleman to act as co-counsel; the court granted that motion, but Mr. Holleman did not speak a word on the record during his trial.

By the time his trial began on May 23, 1977, Mr. Holleman knew that the Love case had been dismissed, and that Mr. Frank had represented Mr. Love. He didn't know what had led to the dismissal.

Mary Schaar was a surprise prosecution witness in Mr. Holleman's trial, apparently called to cast doubt on the part of Mr. Holleman's statements that attributed the shooting to Mr. Love. Mr. Frank objected unsuccessfully on relevancy grounds. Mr. Frank did not cross examine Ms. Schaar; he feared that if he impugned her credibility, the prosecution might take a fresh look at Mr. Love, whom it was free to recharge. Ms. Schaar was among several witnesses not cross examined, but was the only witness unexamined because of Mr. Frank's divided loyalties. Mr. Holleman did not know of the role Ms. Schaar had played in the events leading to the dismissal of the charge against Mr. Love. Mr. Holleman's jury also learned during the trial of the dismissal of the charge against Mr. Love.

The jury found Mr. Holleman not guilty of murder, but found him guilty of murder in the perpetration of a robbery. Mr. Holleman appealed, represented by Dennis Kramer, another public defender. Mr. Holleman sent Mr. Frank two letters to discuss appellate issues; in response to the second, Mr. Frank told Mr. Holleman that further correspondence should be directed to Mr. Kramer. Mr. Holleman told Mr. Kramer in a letter that he thought there was something wrong in Mr. Frank having represented him after representing Mr. Love. Mr. Kramer responded, "According to my interpretation of your letter of August 21, 1977, you believe your attorney, James Frank, was competent except for having represented Frank Love earlier. Therefore, I will not file any additional papers alleging any incompetency of counsel."

The Indiana Supreme Court affirmed Mr. Holleman's conviction in February 1980. Holleman v. State, 272 Ind. 534, 400 N.E.2d 123 (1980). In 1981, Mr. Holleman filed his first federal habeas corpus petition and a state petition for post-conviction

Page 703

relief. This court denied the habeas petition, and the Seventh Circuit affirmed. Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983).

Mr. Holleman's petition for post-conviction relief moved slowly in the state court. Pursuant to the state rules, his petition was referred to the state public defender's office. By 1989, when he first met with deputy state public defender Jeffrey Evans, Mr. Holleman had seen appearances entered by several deputy state public defenders assigned to his case, but Mr. Evans was the first to meet with him. At the end of an interview with Mr. Evans, Mr. Holleman mentioned his concern about Mr. Frank having represented Mr. Love.

Mr. Evans tracked down Mr. Frank, who by then had left the practice of law, and presented Mr. Frank's testimony at an evidentiary hearing in February 1992 on an amended petition for post-conviction relief. Mr. Frank conceded his inability to cross examine Ms. Schaar for fear of jeopardizing Mr. Love's dismissal. The magistrate hearing the case inquired what line of inquiry Mr. Frank might have pursued had he not felt so constrained, and Mr. Frank could not identify any.

The superior court denied Mr. Holleman's post-conviction relief petition, and the Indiana Court of Appeals affirmed. The court of appeals decided that although Mr. Frank had served under a conflict of interest, the conflict was harmless because he "was convicted only of the crime to which he confessed." Holleman v. State, 641 N.E.2d 638, 641 (Ind.Ct.App.1994). Mr. Holleman then filed this petition for writ of habeas corpus.

Mr. Holleman originally raised several issues in this petition, but his arguments about Mr. Frank's conflict of interest are all that remain. He contends that his trial court did not conduct an adequate inquiry into Mr. Frank's potential conflict of interest of which the court was aware.3 Under such circumstances, courts presume prejudice upon a showing of possible prejudice, and the habeas petitioner need not show actual prejudice. Holloway v. Arkansas, 435 U.S. 475, 484-491, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Alternatively, Mr. Holleman argues that Mr. Frank actively represented conflicting interests, and that his conflict adversely affected Mr. Frank's actual performance at trial; under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980),4 such a set of circumstances would entitle Mr. Holleman to a new trial.

The court of appeals summarized the difference between a Holloway claim and a Cuyler claim in Cabello v. United States, 188 F.3d 871, 875 (7th Cir.1999):

The extent to which the defendant must demonstrate prejudice depends on whether and to what extent the conflict was brought to the attention of the trial judge.... There are two...

To continue reading

Request your trial
1 practice notes
  • Holleman v. Cotton, No. 00-3791.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 19, 2002
    ...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 state......
1 cases
  • Holleman v. Cotton, No. 00-3791.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 19, 2002
    ...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 state......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT