Cite as 2017 Ark. 265
SUPREME COURT OF ARKANSAS No. CR-16-432
NICHOLAS R. HOLLOWAY Opinion Delivered October 5, 2017 APPELLANT APPEAL FROM THE LONOKE V. COUNTY CIRCUIT COURT [NOS. 43CR-13-107 & 43CR-14-140]
STATE OF ARKANSAS HONORABLE SANDY HUCKABEE, APPELLEE JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On March 13, 2013, Appellant Nicholas R. Holloway was charged, by felony
information filed in the Lonoke County Circuit Court, with capital murder, firearm
enhancement, and tampering with physical evidence. Holloway’s charges stem from the
shooting death of Hubert Jackson. On April 23, 2014, the felony information was amended
to include the aggravating circumstances that the capital murder was committed for pecuniary
gain and in an especially cruel or depraved manner.
On May 2, 2014, Holloway pleaded guilty to the reduced charge of murder in the first
degree and to tampering with physical evidence in exchange for his truthful testimony against
his codefendant, Jeremy Davis.1 During the hearing on Holloway’s guilty plea and in
1 On April 15, 2014, Holloway was charged, by separate felony information in case number 43CR-14-140, with possession or use of a weapon by an incarcerated person. As part of his plea agreement, the State agreed that 43CR-14-140 would be nolle prossed. The motion to nolle pros was granted during Holloway’s May 2, 2014 plea hearing. Cite as 2017 Ark. 265
response to questioning by the circuit court, Holloway indicated that he understood the
charges he was being charged with; the full range of possible sentences; that no one forced,
threatened, intimated or pressured him to plead guilty; and that no one promised him
anything in exchange for pleading guilty.2 Based on Holloway’s testimony, the
representations of his attorney, and upon review of his guilty-plea agreement, the circuit court
found that Holloway knowingly, intelligently, and voluntarily entered his plea of guilty.
Holloway then gave detailed testimony regarding the plan to kill Jackson; the ultimate
shooting death of Jackson; and his disposal of the gun in a pond.
On May 2, 2014, the sentencing order was entered reflecting that Holloway was
sentenced to 420 months’ imprisonment in the Arkansas Department of Correction for his
first-degree-murder charge and 72 months’ imprisonment for his tampering-with-physical-
evidence charge, to be served concurrently with his sentence of 420 months’ imprisonment.3
On July 31, 2014, Holloway filed his petition for postconviction relief pursuant to
Rule 37.1 of the Arkansas Rules of Criminal Procedure. In his petition, Holloway argued
that Ferguson was ineffective because he (1) failed to inform Holloway of his right to suppress
incriminating evidence taken from Holloway’s cell phone and (2) misinformed Holloway
about the effect of his guilty plea by telling Holloway that he would have to serve only 21
years of his 35-year sentence. Further, Holloway contended that no pretrial motions were
2 Holloway was represented by Claiborne Ferguson. 3 On May 6, 2014, an amended sentencing order was entered. This order contains the same conviction and sentencing information as the May 2, 2014 order.
2 Cite as 2017 Ark. 265
filed on his behalf. Holloway also explained that he has a learning disability and, historically,
a low level of intellectual functioning. Holloway asserted that he did not plead guilty because
he actually committed the murder but because he was not informed of his legal rights and he
was afraid. In sum, Holloway contended that Ferguson’s ineffectiveness resulted in Holloway
being prejudiced.
On August 12, 2014, the State filed its response. The State responded that Holloway’s
argument regarding Ferguson’s failure to file pretrial motions was without merit because
Ferguson had filed approximately twenty-five pretrial motions. The State noted that
Holloway signed the guilty-plea agreement, which stated that he had fully discussed all the
facts and circumstances of his case with his attorney and that the plea had been explained to
him by his attorney. By signing the agreement, Holloway acknowledged that he was giving
up rights, which included the right to appeal and the right to question all facts, circumstances,
and evidence, and to raise all legal issues. Further, the State argued that Holloway cannot
now appeal the basis for an illegal search or that he was pressured or promised anything for
his plea. In any event, the State argued that the police officers obtained a search warrant for
Holloway’s cell phone.
On December 12, 2014, a hearing was held on Holloway’s petition for postconviction
relief.4 Ferguson testified that Holloway “has a pretty severe disability when it comes to
reading, if I remember correctly. He’s not able to read - - again, I think he knows it and
everybody knows it, he does not read very well at all. He - - which surprised me because his
4 Holloway was represented by Danny R. Williams.
3 Cite as 2017 Ark. 265
academic scores came in fairly high.” Ferguson testified that Holloway is dyslexic and has
“one of the most severe reading disabilities I’ve seen in one of my clients, to the point where
he would not be considered illiterate because it’s not that he hasn’t learned or doesn’t know
how to, he just simply has a physical disability that does not allow him the same opportunity
that you and I would have.” However, Ferguson explained that he had “no concern about
his ability to understand me, never at all.” Further, Ferguson testified that he “never had any
problems with him assisting me to the point where I believed that it would have been
necessary to see if he was able or unable. His assistance was helpful and accurate.” In response
to questioning regarding the suppression of evidence taken from Holloway’s cell phone,
Ferguson testified that he discovered that the evidence had been properly obtained. In
response to questions regarding Holloway’s ability to read the guilty-plea agreement, Ferguson
testified that “it’s my absolute 100 percent practice that on a guilty plea form, I will read it
to my client. I go over it with them so that they can see it and ask them to read it, but I will
literally line by line read it to them, never ask them can they or can they not read.”
Ferguson further testified, “I will not tell a client what the exact time they’re going to
serve is, because there’s no way for me to control that if they got there and picked up
additional charges, act bad and lose jail credit, or whatever, and then obviously my promise
to them would subject them to a post conviction to come back and say I promised them an
absolute sentence and they didn’t get it. It’s considered unethical for a defense attorney to
promise a client an exact date of release or even to try to be specific about it. He was told
what he was pleading to. He was told what those years were.” At the close of the hearing,
4 Cite as 2017 Ark. 265
the circuit court announced that it would take Holloway’s case under advisement.
On December 16, 2014, the circuit court entered its order denying Holloway’s
petition for postconviction relief. On January 12, 2015, Holloway filed his notice of appeal.
On April 10, 2015, Holloway filed a motion for extension of time to file the transcript on
appeal. The circuit court granted two extensions, and the last order was entered on April 13,
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Cite as 2017 Ark. 265
SUPREME COURT OF ARKANSAS No. CR-16-432
NICHOLAS R. HOLLOWAY Opinion Delivered October 5, 2017 APPELLANT APPEAL FROM THE LONOKE V. COUNTY CIRCUIT COURT [NOS. 43CR-13-107 & 43CR-14-140]
STATE OF ARKANSAS HONORABLE SANDY HUCKABEE, APPELLEE JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On March 13, 2013, Appellant Nicholas R. Holloway was charged, by felony
information filed in the Lonoke County Circuit Court, with capital murder, firearm
enhancement, and tampering with physical evidence. Holloway’s charges stem from the
shooting death of Hubert Jackson. On April 23, 2014, the felony information was amended
to include the aggravating circumstances that the capital murder was committed for pecuniary
gain and in an especially cruel or depraved manner.
On May 2, 2014, Holloway pleaded guilty to the reduced charge of murder in the first
degree and to tampering with physical evidence in exchange for his truthful testimony against
his codefendant, Jeremy Davis.1 During the hearing on Holloway’s guilty plea and in
1 On April 15, 2014, Holloway was charged, by separate felony information in case number 43CR-14-140, with possession or use of a weapon by an incarcerated person. As part of his plea agreement, the State agreed that 43CR-14-140 would be nolle prossed. The motion to nolle pros was granted during Holloway’s May 2, 2014 plea hearing. Cite as 2017 Ark. 265
response to questioning by the circuit court, Holloway indicated that he understood the
charges he was being charged with; the full range of possible sentences; that no one forced,
threatened, intimated or pressured him to plead guilty; and that no one promised him
anything in exchange for pleading guilty.2 Based on Holloway’s testimony, the
representations of his attorney, and upon review of his guilty-plea agreement, the circuit court
found that Holloway knowingly, intelligently, and voluntarily entered his plea of guilty.
Holloway then gave detailed testimony regarding the plan to kill Jackson; the ultimate
shooting death of Jackson; and his disposal of the gun in a pond.
On May 2, 2014, the sentencing order was entered reflecting that Holloway was
sentenced to 420 months’ imprisonment in the Arkansas Department of Correction for his
first-degree-murder charge and 72 months’ imprisonment for his tampering-with-physical-
evidence charge, to be served concurrently with his sentence of 420 months’ imprisonment.3
On July 31, 2014, Holloway filed his petition for postconviction relief pursuant to
Rule 37.1 of the Arkansas Rules of Criminal Procedure. In his petition, Holloway argued
that Ferguson was ineffective because he (1) failed to inform Holloway of his right to suppress
incriminating evidence taken from Holloway’s cell phone and (2) misinformed Holloway
about the effect of his guilty plea by telling Holloway that he would have to serve only 21
years of his 35-year sentence. Further, Holloway contended that no pretrial motions were
2 Holloway was represented by Claiborne Ferguson. 3 On May 6, 2014, an amended sentencing order was entered. This order contains the same conviction and sentencing information as the May 2, 2014 order.
2 Cite as 2017 Ark. 265
filed on his behalf. Holloway also explained that he has a learning disability and, historically,
a low level of intellectual functioning. Holloway asserted that he did not plead guilty because
he actually committed the murder but because he was not informed of his legal rights and he
was afraid. In sum, Holloway contended that Ferguson’s ineffectiveness resulted in Holloway
being prejudiced.
On August 12, 2014, the State filed its response. The State responded that Holloway’s
argument regarding Ferguson’s failure to file pretrial motions was without merit because
Ferguson had filed approximately twenty-five pretrial motions. The State noted that
Holloway signed the guilty-plea agreement, which stated that he had fully discussed all the
facts and circumstances of his case with his attorney and that the plea had been explained to
him by his attorney. By signing the agreement, Holloway acknowledged that he was giving
up rights, which included the right to appeal and the right to question all facts, circumstances,
and evidence, and to raise all legal issues. Further, the State argued that Holloway cannot
now appeal the basis for an illegal search or that he was pressured or promised anything for
his plea. In any event, the State argued that the police officers obtained a search warrant for
Holloway’s cell phone.
On December 12, 2014, a hearing was held on Holloway’s petition for postconviction
relief.4 Ferguson testified that Holloway “has a pretty severe disability when it comes to
reading, if I remember correctly. He’s not able to read - - again, I think he knows it and
everybody knows it, he does not read very well at all. He - - which surprised me because his
4 Holloway was represented by Danny R. Williams.
3 Cite as 2017 Ark. 265
academic scores came in fairly high.” Ferguson testified that Holloway is dyslexic and has
“one of the most severe reading disabilities I’ve seen in one of my clients, to the point where
he would not be considered illiterate because it’s not that he hasn’t learned or doesn’t know
how to, he just simply has a physical disability that does not allow him the same opportunity
that you and I would have.” However, Ferguson explained that he had “no concern about
his ability to understand me, never at all.” Further, Ferguson testified that he “never had any
problems with him assisting me to the point where I believed that it would have been
necessary to see if he was able or unable. His assistance was helpful and accurate.” In response
to questioning regarding the suppression of evidence taken from Holloway’s cell phone,
Ferguson testified that he discovered that the evidence had been properly obtained. In
response to questions regarding Holloway’s ability to read the guilty-plea agreement, Ferguson
testified that “it’s my absolute 100 percent practice that on a guilty plea form, I will read it
to my client. I go over it with them so that they can see it and ask them to read it, but I will
literally line by line read it to them, never ask them can they or can they not read.”
Ferguson further testified, “I will not tell a client what the exact time they’re going to
serve is, because there’s no way for me to control that if they got there and picked up
additional charges, act bad and lose jail credit, or whatever, and then obviously my promise
to them would subject them to a post conviction to come back and say I promised them an
absolute sentence and they didn’t get it. It’s considered unethical for a defense attorney to
promise a client an exact date of release or even to try to be specific about it. He was told
what he was pleading to. He was told what those years were.” At the close of the hearing,
4 Cite as 2017 Ark. 265
the circuit court announced that it would take Holloway’s case under advisement.
On December 16, 2014, the circuit court entered its order denying Holloway’s
petition for postconviction relief. On January 12, 2015, Holloway filed his notice of appeal.
On April 10, 2015, Holloway filed a motion for extension of time to file the transcript on
appeal. The circuit court granted two extensions, and the last order was entered on April 13,
2015, which extended the time for filing the transcript by thirty days. However, despite these
extensions, Holloway failed to timely file the transcript.
On December 2, 2015, Holloway filed a pro se petition for writ of error coram nobis
in the Lonoke County Circuit Court. In his petition, Holloway argued that his plea had been
coerced due to his mental condition at the time of his guilty-plea hearing. First, Holloway
contended that his plea was involuntarily and unintelligently made due to his inability to
comprehend the nature of his charges and sentence. Second, Holloway argued that his guilty
plea was coerced because the State misled him as to the amount of time he would be
sentenced to serve.
On December 22, 2015, the State filed its response. As to Holloway’s claim of
incompetence, the State responded that Holloway’s claim is wholly without merit. As to
Holloway’s claim that he was misled by the State about the possible sentence he would
receive, the State responded that he signed the guilty-plea agreement stating that he could
receive up to life imprisonment for the charges to which he pleaded guilty.
On February 10, 2016, the circuit court entered an order denying and dismissing
Holloway’s December 2, 2015 petition for writ of error coram nobis. On March 4, 2016,
5 Cite as 2017 Ark. 265
Holloway filed his notice of appeal of the February 10, 2016 order.
On March 9, 2016, Holloway filed his second petition for writ of error coram nobis.
In the petition, Williams admitted fault and stated that “[d]ue to circumstances beyond the
control of the petitioner, undersigned counsel did not file a petition to proceed in forma
pauperis, to cover the circuit court’s costs for preparation of the pleadings of record in the
petitioner’s case. Undersigned counsel accepts full responsibility for the error, which resulted
in the appellate record not being filed before May 13, 2015, the final date for filing as
extended by the Court.” The petition also stated that Holloway intends to “pursue any
remedy he has remaining on appeal, which is a Petition for Rule on the Clerk.” As a basis
for the writ of error coram nobis, Holloway explained that it was discovered at his Rule 37
hearing that he has “a history of borderline intellectual functioning and a learning disability
that would have prevented [Holloway] from understanding the written documents he signed
in entering his guilty plea.”
On March 24, 2016, the circuit court entered an order denying and dismissing his
March 9, 2016 second petition for writ of error coram nobis. On April 20, 2016, Holloway
filed his notice of appeal from the March 24, 2016 order.
On May 13, 2016, in this court, Holloway filed a motion for rule on clerk. On June
2, 2016, we entered an order that stated, “MOTION FOR RULE ON CLERK
GRANTED; PETITION TO PROCEED IN FORMA PAUPERIS TO BE FILED WITH
THIS COURT; PETITION FOR WRIT OF CERTIORARI TO COMPLETE THE
RECORD TO BE FILED WITH THIS COURT.” On July 18, 2016, Holloway filed his
6 Cite as 2017 Ark. 265
petition for writ of certiorari to complete the record. On August 2, 2016, Holloway filed his
petition for leave to proceed in forma pauperis. On September 8, 2016, we entered an order
granting Holloway’s petition for writ of certiorari and petition for leave to proceed in forma
pauperis with the complete record due on October 7, 2016. Holloway’s record was timely
filed on October 7, 2016.
Before considering Holloway’s arguments on appeal, we must first determine the scope
of our decision to grant Holloway’s motion for rule on clerk. Holloway’s motion for rule on
clerk was entitled “MOTION FOR RULE ON THE CLERK AND TO PROCEED IN
THE LONOKE COUNTY CIRCUIT COURT ON PETITION FOR WRIT OF
ERROR CORAM NOBIS.” We have held that motions should be liberally construed and
that courts should not be blinded by titles but should look to the substance of the motions to
ascertain what they seek. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) (citing
Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987)). A review of the substance of
Holloway’s motion demonstrates that Holloway was requesting to lodge an appeal of the
denial of his Rule 37 petition:
1. That the transcript on the original appeal of this case was due for filing in the Arkansas Court of Appeals on Monday, April 13, 2015. ....
9. Appellant cannot proceed on either the original appeal from the denial of his Petition Under Rule 37 or his Petition for Writ of Error Coram Nobis unless this Court grants or denies his Motion for Rule on the Clerk and grants the Appellant’s request to pursue a Petition for Writ of Error Coram Nobis in the Lonoke County Circuit Court.
10. Movant believes the Court should grant his Motion for Rule on the Clerk and allow the original appeal to be docketed and that a briefing schedule
7 Cite as 2017 Ark. 265
should be issued.
11. If the Court denies the Appellant’s Motion for Rule on the Clerk, Movant believes, that, in the interest of justice, the Court should enter an Order permitting the Appellant to proceed in the Lonoke County Circuit Court on the Petition for Writ of Error Coram Nobis, which has already been filed in that Court.
WHEREFORE, the Movant prays that the Court Order the Clerk of the Court to docket the appeal, Order a complete record of proceedings in the Lonoke County Circuit Court and set a Briefing Schedule to allow Appellant’s case to move forward through the avenue of judicial appeal. In the alternative, Movant prays that the Court remand this matter to the Lonoke County Circuit Court with instructions that Appellant may proceed in that Court on his Petition for Writ of Error Coram Nobis.
(Emphasis added.) In his motion, Holloway consistently referred to his Rule 37 petition as
his “original appeal.” He sought to proceed on his “original appeal” or in the alternative, if
we denied his motion for rule on clerk, he sought to return to the Lonoke County Circuit
Court to proceed on his petition for writ of error coram nobis. Based on the foregoing, we
conclude that we granted Holloway’s motion for rule on clerk only as to his Rule 37 petition.
Stated differently, our decision to grant Holloway’s motion for rule on clerk only granted
Holloway permission to lodge an appeal of the denial of his Rule 37 petition.
Because our decision to grant Holloway’s motion for rule on clerk encompassed only
his Rule 37 claims, our review is limited to the denial of Holloway’s petition for
postconviction relief. Although in Holloway’s July 31, 2014 petition for postconviction relief
he developed two ineffective-assistance-of-counsel claims, his briefs before this court fail to
include any arguments supporting his ineffective-assistance-of-counsel claims. On appeal,
Holloway has clearly abandoned his arguments regarding the ineffectiveness of his trial
counsel. Instead, Holloway focuses on the denial of his petitions for writ of error coram
8 Cite as 2017 Ark. 265
nobis. Issues raised below but not argued on appeal are considered abandoned. State v.
Johnson, 374 Ark. 100, 102 n.2, 286 S.W.3d 129, 131 n.2 (2008) (citing Jordan v. State, 356
Ark. 248, 147 S.W.3d 691 (2004)). Accordingly, because Holloway has abandoned his Rule
37 claims on appeal, we must affirm the circuit court’s denial of his Rule 37 petition.
Danny R. Williams, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.