Robert Lee Holleman v. Zettie Cotton

301 F.3d 737, 2002 U.S. App. LEXIS 16636, 2002 WL 1895341
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 19, 2002
Docket00-3791
StatusPublished
Cited by19 cases

This text of 301 F.3d 737 (Robert Lee Holleman v. Zettie Cotton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert Lee Holleman v. Zettie Cotton, 301 F.3d 737, 2002 U.S. App. LEXIS 16636, 2002 WL 1895341 (7th Cir. 2002).

Opinions

CUDAHY, Circuit Judge.

In this successive appeal, Robert Holle-man 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. [740]*740Duckworth, 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 Holle-man 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 Holle-man’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 [741]*741Frank 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.

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Robert Lee Holleman v. Zettie Cotton
301 F.3d 737 (Seventh Circuit, 2002)

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Bluebook (online)
301 F.3d 737, 2002 U.S. App. LEXIS 16636, 2002 WL 1895341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-lee-holleman-v-zettie-cotton-ca7-2002.