United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGED REPORT AND
J. Krask, United States Magistrate Judge.
matter is before the Court on Shavis Holloman's pro
se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, and the motion to dismiss filed by
respondent Harold Clarke, Director for the Virginia
Department of Corrections ("respondent"). This
matter was referred to the undersigned United States
Magistrate Judge pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and (C) and Rule 72 of the Rules of the
United States District Court for the Eastern District of
Virginia. For the following reasons, the Court
RECOMMENDS that respondent's motion to
dismiss, ECF No. 9, be GRANTED.
STATEMENT OF THE CASE
habeas petition in this matter asserts six grounds for
relief. Three of those grounds allege ineffective assistance
of counsel arising from the interpretation of, and advice
regarding, an immunity agreement. The other grounds concern
the denial of a motion to sever the charges relating to two
different victims into different trials, the denial of a
motion to strike a member of the venire for cause, and the
admission of a notebook containing information about a
criminal street gang.
Holloman's Trial and Direct Appeals
Holloman ("Holloman") is an inmate currently housed
at Sussex I State Prison, part of the Virginia Department of
Corrections. ECF No. 1 at 1. He was convicted by a jury in
the Circuit Court of the City of Hampton on July 11, 2014 of
first degree murder, attempted robbery, conspiracy, gang
participation, malicious wounding, and three counts for the
use of a firearm in the commission of a felony.
Commonwealth v. Holloman, No. CR10-1128-00, -01,
-03, -04, -06, -10, -12 (Va. Cir. Ct. Jul. 11, 2014), SCV at
205-06. He was sentenced on the same date to a
term of life imprisonment for the murder charge and a total
of 63 years of imprisonment for the other charges. SCV at
Pretrial and Trial Proceedings
16, 2014, Holloman, through his attorney, Nicholas Hobbs
("Hobbs"), filed a motion to dismiss the
indictments against him and to specifically enforce an
immunity agreement with the Commonwealth that Holloman signed
on April 28, 2011, when he was represented by Gregory
Blanchard ("Blanchard"). SCV 144-47. The
first part of the immunity agreement read:
The Hampton Commonwealth Attorney's Office agrees not to
prosecute you for any violation of the criminal laws of the
Commonwealth of Virginia based on statements provided
pursuant to this agreement for which truthful disclosure is
made and the occurrence of which the Attorney for the
Commonwealth has full and complete knowledge. This use
immunity applies [to] any conversations with the Hampton
Police or the Hampton Commonwealth's Attorney's
office with respect to knowledge that you have regarding
SCV 148; Holloman v. Commonwealth, No. 1319-14-1,
(Va.App. 2014) ("Va. App.") at 25.
immunity agreement further provided that Holloman "must
at all times give complete, truthful and accurate
information," and that if "it is determined that
[Holloman] violated any provision of this agreement, or
seek[s] to withdraw from said agreement, all statements made
by [him] to this office... shall be admissible in evidence in
any and all criminal proceedings hereafter brought against
[him]." SCV 148-49.
argued that the first sentence of this agreement "bar[s]
a prosecution in exchange for his statements," and the
indictments should be dismissed based on the terms of the
agreement drafted by the Commonwealth. SCV 146. During a May
22, 2014 hearing on the motion to dismiss, he also argued
that the agreement "puts him in a situation where he
can't really offer any defense," because if he
offered evidence contrary to his statements during his
debriefing to police under the immunity agreement, the
Commonwealth could present the rest of his statements. SCV
conclusion of the May 22, 2014 hearing, the circuit court
ruled that the agreement provided only use immunity, but that
the Commonwealth could not admit any of Holloman's
statements from his debriefing "under any
circumstances." SCV 225, 237-38. The Commonwealth asked
for a rehearing regarding whether Holloman's statements
could be admitted for impeachment purposes. SCV 241-43. The
court held the re-hearing on June 23, 2014, and denied
Holloman's motion to dismiss by order of the same date.
SCV 158. The court "determine[d] that this is a use
immunity agreement and that the Commonwealth cannot use the
Defendant's debriefing statement in [its] case in chief,
however, his testimony can be impeached as with any
witness." SCV 158.
also moved for separate trials of his charges related to the
August 22, 2010 murder of Thomas "Pete" Needham
("Needham") and the September 17, 2010 shooting of
Rhonda Stubbs ("Stubbs"), because there was no
common scheme or plan connecting those separate
incidents. SCV 152-54. The Commonwealth responded
that there was a common scheme and plan because both
incidents occurred based on Holloman's leadership of a
gang. SCV 258-59. The court denied the motion for separate
trials. SCV 158, 259.
court conducted voir dire to impanel a jury on July
9, 2014. SCV 260, 264-361. Venireman James Fronkier
("Fronkier") identified himself as a retired
Virginia Army Guard major and a retired Hampton City police
detective. SCV 285. As the Commonwealth introduced its
potential witnesses, Fronkier acknowledged that he served
with Rodney Caison, a Hampton police officer, and knew former
Assistant Commonwealth's Attorney David Holt through
work. SCV 323-24, 326. When the venire was asked about
experiences with violent crime, Fronkier responded that,
while in the course of duty, he "was shot and wounded by
an assailant who had just murdered [the assailant's] wife
and fatally wounded another police officer." SCV 330. He
also acknowledged that his life had been threatened, and that
he had been interviewed by police "[a]ny time
there's a complaint or an Internal Affairs
investigation." SCV 339, 343, 350-51. The venire was
asked if they "ever had a preconceived idea about a
person" or "jumped to a conclusion about  an
event" and later "f[ou]nd out that that
preconceived idea you had or the conclusion you jumped to
turned out to be incorrect?" SCV 352. Fronkier
As with all investigations, you have to get past the initial
 meeting and ... come to understand what... the person -
regardless of how they come off, forcefully or not  you get
past that, reach a medium point, and - and get to where you
can reach an understanding between the two of you,  past
the outer appearances and how they came off.
moved to strike Fronkier for cause, arguing that he was a
"former Hampton police officer" with
"ties" to that department, had "worked closely
with a lot of the witnesses in this case," and was a
victim of a crime. SCV 358-59. The Commonwealth responded
that his experience as a police officer did not disqualify
him, and he had not shown any bias. SCV 359. The court denied
the motion, noting there was "no per se
disqualification" for former police officers and that it
"didn't hear any response that would give [the
court] reasonable doubt as to whether he could remain fair
and impartial." SCV 360.
was ultimately removed through a peremptory challenge, and
was not a member of the jury that decided Holloman's
case. SCV 361, 820-21 (polling jurors for verdict); Va.App.
34; ECF No. 16 at 29.
summarized by the Court of Appeals of Virginia, the general
evidence was as follows:
At trial, the Commonwealth presented evidence regarding two
events, each involving a different victim, Thomas Needham and
Rhonda Stubbs. Witnesses testified that the appellant, known
as "S-Dot," was a "five[-]star general"
in the Nine-Trey Bloods criminal street gang. Prosecution
witnesses included Detectives John Baer and Ernest Sales of
the City of Hampton Police Department, and Lieutenant R.
Whitehead, an assistant watch commander at the Hampton Roads
Regional Jail. The Commonwealth also presented testimony from
Essie Hawkins-Whitlock, who was not a member of the gang, as
well as Latoya Manning and Stephen Hayes, who were gang
The Commonwealth presented evidence that the appellant and
some fellow gang members attempted to rob Needham on August
22, 2010. The appellant drove several of his gang affiliates
to Needham's apartment intending to rob him. Four of his
accomplices went to Needham's door while the appellant
waited in the car. They decided not to rob Needham at that
time, in part because Needham's children were home. When
they returned to the car, the appellant "got upset"
and, as the local gang leader, insisted that they complete
the robbery. During the encounter that followed, a fellow
gang member, Jamel Carney, shot and killed Needham.
The prosecution also presented evidence that the appellant
shot Stubbs on September 17, 2010. She was leaving a
friend's house with her five-year-old son. The appellant
was in the same area, once again accompanied by other members
of the gang. While there, the appellant encountered a man
with whom he "had a conflict," and the two
"exchang[ed] words." When the man insulted the
appellant and intentionally turned away, the appellant opened
fire on the street. Stubbs, an innocent bystander, was shot.
Detective Sales was in the area and saw "the fire coming
from the firearms, and [from] the trajectory [he] could see
it was coming from where [a] vehicle was located." Sales
immediately stopped the car. The appellant was a passenger
and was later identified as the shooter.
Va.App. 23-24; Holloman v. Com., 775 S.E.2d 434, 438
Manning ("Manning"), one of the individuals
involved in the shooting of Needham, testified that she was a
member of the Nine Trey gang and that Holloman was the
gang's five star general. SCV 399, 400-02, 408. She
identified a notebook as the "book of Blood knowledge
for Nine Trey" that contained the gang's history and
rules that members were expected to remember. Mat 413-14.
John Baer ("Detective Baer") testified that, on
October 13, 2010, while he was executing a search warrant in
an apartment where Manning and several other individuals
involved in the shooting of Needham were found, he recovered
the gang notebook identified by Manning. SCV 618-20.
Holloman objected to both testimony about the notebook and
the admission of the notebook on hearsay and Sixth Amendment
Confrontation Clause grounds, because he did not write in or
produce the notebook. Id. at 623. The court
sustained the objection, but ruled the detective could
testify to what he found in his investigation. Id.
at 624-25. Detective Baer stated that the notebook was used
to "identify some of the other individuals" in his
investigation, including Holloman. Id. at 627.
Baer testified that he interviewed Manning and several others
in connection with the murder of Needham, and interviewed
Holloman on October 15, 2010, while he was in custody. SCV
632-36. He stated that, after the police told Holloman that
the other individuals mentioned his involvement in the
murder, Holloman initially told them that he drove Manning
and the others to Needham's apartment to buy marijuana,
but he never left the car. Id. at 636-38. Detective
Baer stated that, later during that interview, Holloman told
them that he was at the bottom of the stairs to Needham's
apartment building when "Deno" (Jamel Carney) shot
Needham in the doorway of Needham's apartment.
Id. at 645-47. He said that Holloman admitted to
numerous facts regarding Needham's murder, including:
that he drove the group to Needham's apartment and they
discussed robbing Needham during the drive; that there was a
gun in the car; that he knew they did not rob Needham at
first, he went with them on their second trip to
Needham's apartment, and someone had a gun that time; and
that the people he was "hanging with" that night
were in the Nine Trey gang. Id. at 689-92.
Ernest Sales ("Detective Sales") was qualified as a
gang expert, and testified that the Nine Trey Gangsters are
part of the national Blood gang. SCV 694, 699. When Detective
Sales was asked to identify the notebook, Holloman objected
on the same hearsay and Sixth Amendment grounds. Id.
at 705-08. The court overruled the objection and allowed
Detective Sales to testify about the notebook as the basis
for his opinions. Id. at 710. He stated that the
notebook contained gang history and ideology and a "roll
call" of local Nine Trey gang members who were known to
the detective. Id. at 713-14. Holloman renewed his
objections, which the court overruled. Id. at
716-18. Detective Sales acknowledged on cross examination
that the notebook did not belong to Holloman, was not written
in Holloman's handwriting, and it was not found on
Holloman's person or in his residence. Id. at
780-81. At the conclusion of Detective Sales' testimony,
the Commonwealth moved to admit the gang notebook into
evidence, and Holloman repeated his earlier objections.
Id. at 787-88. The court overruled the objections
and admitted the notebook into evidence. Id. at 789.
the Commonwealth rested, Holloman renewed his objections and
motions concerning the immunity agreement and the joint trial
of his charges; the court upheld its previous rulings on both
matters. SCV 805-09. Holloman rested without presenting any
evidence. Id. at 811. The jury convicted
and sentenced Holloman on all charges. Id. at
Holloman's convictions were upheld on direct
appealed his conviction to the Court of Appeals of Virginia.
ECF No. 1 at 2. He alleged several assignments of error,
including, as relevant to the present habeas matter, that the
trial court erred by: (1) not dismissing the case after the
prosecutor failed to comply with his immunity agreement; (2)
trying his charges in a single trial; (3) not striking a
member of the venire for cause; and (4) admitting into
evidence a gang notebook and related testimony. Va.App. 25;
Holloman, 775 S.E.2d at 438.
court of appeals determined that the circuit court did not
err by denying Holloman's motion to dismiss the charges
against him based on the immunity agreement, concluding that
the agreement provided "use" immunity that only
granted protection "from the Commonwealth using the
specific statements he made in exchange for the
agreement," and that the charges were not based on those
statements. Holloman, 775 S.E.2d at 439.
court of appeals ruled that the circuit court did not err by
denying Holloman's motion for separate trials.
Id. at 439-42. It determined that the crimes
involving Needham and Stubbs were sufficiently connected to
justify a joint trial under Rule 3A:6(b) of the Virginia
Rules of Criminal Procedure, because they were predicate
criminal acts for the gang participation charge under Va.
Code Ann. § 18.2-46.2. Id. It ruled that
justice did not require separate trials, because Holloman was
not unduly prejudiced by the joint trial, considering that
evidence of both crimes was admissible for the gang
participation charge. Id.
court of appeals also ruled that the circuit court did not
abuse its discretion by denying Holloman's request to
strike a former Hampton police detective from the venire for
cause, although that potential juror was later removed from
the jury through a peremptory strike. Id. at 442-44.
The court noted that, although the potential juror
"disclosed that while on duty he had been shot and
wounded by a suspect" and "knew two of the people
on the Commonwealth's witness list, a law enforcement
officer and a former Assistant Commonwealth's
Attorney," he also "represented that he had not
formed an opinion as to the appellant's guilt or
innocence," "did not have a bias in favor of the
Commonwealth," and "did not know of any reason why
he could not be fair and impartial." Id. at
443. The court concluded: "the trial court, which had
the ability to see the venireman and hear his responses,
concluded that the individual could be impartial. Nothing in
this record suggests that the trial court committed manifest
error and abused its discretion by declining to strike the
juror for cause." Id. at 444.
the court of appeals determined that the admission of the
gang notebook and related testimony was harmless error.
Holloman, 775 S.E.2d at 444-47. It concluded that
the gang notebook was hearsay and that no hearsay exception
applied to permit its admission, but that the notebook was
not "created for the purpose of a criminal investigation
or prosecution," and therefore "was not testimonial
and its admission, as well as the testimony about it, did not
violate the appellant's Sixth Amendment right to confront
witnesses against him." Id. at 445-46.
appealed to the Supreme Court of Virginia, raising the same
assignments of error discussed above. Va.App. 48; SCV 882,
892. That court refused his appeal on May 19, 2016. SCV 918;
ECF No. 1 at 4. Holloman did not file for a writ of
certiorari with the Supreme Court of the United States. ECF
No. 1 at 4.
The Supreme Court of Virginia dismissed Holloman's habeas
Holloman's Petition and Initial Proceedings in the
Supreme Court of Virginia
filed a pro se petition for a writ of habeas corpus
in the Supreme Court of Virginia on June 20,
2016. ECF No. 1 at 4; SCV 1. He raised six
grounds in his petition, the first five of which related to
ineffective assistance of counsel: (1) violation of his Sixth
and Fourteenth Amendment rights when his initial counsel,
Blanchard, failed to investigate and properly inform him of
the terms of the immunity agreement; (2) violation of his
Sixth and Fourteenth Amendment rights when his trial counsel,
Hobbs, failed to investigate the terms of the immunity
agreement before trial and instead advised Holloman that he
could not be prosecuted on the charges for which he was later
convicted; (3) violation of his Sixth and Fourteenth
Amendment rights when Hobbs misinterpreted the "employed
language" of the immunity agreement and
"convinc[ed] Holloman not to accept a plea offer that he
wanted to accept"; (4) violation of his Sixth and
Fourteenth Amendment rights when Hobbs failed to investigate
the statutory guidelines for second degree murder and to
object to a life sentence for second degree murder when the
statutory maximum was 40 years; (5) violation of his Sixth
and Fourteenth Amendment rights when his appellate counsel
failed to investigate and raise improper sentencing as an
error on direct appeal; and (6) the "trial court
errors" he raised on direct appeal. SCV 3-6, 13-14.
attached to his petition an affidavit dated October 23, 2015
from his half-brother, Jevrayal Elliot ("Elliot").
SCV 18. Elliot stated that he was willing to testify in
Holloman's defense in July 2014, but did not do so after
speaking with Hobbs, who told him that defense witnesses
would violate Holloman's immunity agreement, which Hobbs
said was "guaranteed a win on  appeal" if the
circuit court did not rule that the agreement provided
transactional immunity. Id. The affidavit did not
include any information about Elliot's proposed
filed his motion to dismiss on September 6, 2016. SCV 30. He
argued that Holloman's claim did not meet either the
performance or prejudice prong of ineffective assistance
under Strickland v. Washington, 466 U.S. 668 (1984),
because Holloman did not identify how Blanchard's
explanation of the plea agreement was deficient, made no
showing of the constitutional rights he waived by signing the
agreement, and "cannot establish a reasonable
probability of a different result at trial." SCV 36-38.
He further noted that Holloman alleged Hobbs was ineffective
due to his interpretation of the immunity agreement, but
either way the agreement is read, relief was not warranted
under Strickland, because either Hobbs correctly
stood by his interpretation that the agreement provided
transactional immunity, or the limited use immunity meant
there was no bar to Holloman's prosecution. SCV 39.
attached as exhibits to his motion to dismiss a notarized
letter from Blanchard dated August 18, 2016, and an affidavit
from Hobbs dated August 29, 2016, addressing their
discussions with Holloman regarding the immunity agreement
and refuting Holloman and Elliott's claims about their
advice. SCV 60-62.
The circuit court held an evidentiary hearing regarding the
ineffective assistance of counsel
March 6, 2017, the Supreme Court of Virginia entered an order
granting Holloman's motion for an evidentiary hearing
regarding certain claims in his petition, including claims
(b) and (c). SCV 858. As summarized by that court,
claims (b) and (c) concerned the factual issue of
"whether, based on counsel's understanding of the
petitioner's immunity agreement with the Commonwealth,
counsel advised petitioner to reject a plea agreement."
21, 2017, the circuit court held the evidentiary hearing as
directed by the Supreme Court. July 21, 2017 Evidentiary
Hearing Transcript ("Tr.") 1, 4-5. The court
conducted the evidentiary hearing pursuant to Va. Code Ann.
§ 8.01-657, which states, in part: "in the event
the allegations of illegality of the petitioner's
detention present a case for the determination of unrecorded
matters of fact relating to any previous judicial proceeding,
such writ [of habeas corpus] shall be made returnable before
the court in which such judicial proceeding occurred."
SCV 858. As later explained by the Supreme Court of Virginia
when it dismissed Holloman's petition, the circuit
court's factual findings at the evidentiary hearing are
binding upon the Supreme Court of Virginia unless plainly
wrong or without evidentiary support. SCV 876 (citing
Lovitt v. Warden, 585 S.E.2d 801, 808 (Va. 2003)).
testified that he was serving a 10-year sentence for charges
related to Holloman's charges, but that he had pled
guilty and agreed to testify in another trial in exchange for
the Commonwealth nol prossing his murder and home
invasion charges. Tr. 31:18-33:12. He stated that Hobbs
subpoenaed him as a witness and spoke with him once at the
Hampton jail the day before Holloman's trial, which was
after Elliot had accepted his own plea deal. Tr. 33:13-34:25,
38:2-25. Elliot testified that Hobbs decided not to call him
as a witness at Holloman's trial because Hobbs "had
another plan. Some type of immunity his goal basically was he
was aiming at an appeal process from my understanding."
cross examination, Elliot stated that his meeting with Hobbs
lasted five to ten minutes, and Hobbs "inquir[ed] more
about" Elliot's plea agreement as well as
"everything about" the testimony Elliot could
provide on behalf of Holloman. Tr. 41:4-42:13. He said that
Hobbs' reason for not calling him as a witness was that
Hobbs "didn't feel comfortable calling me in"
as a witness because "something about the terms might
violate  the agreement that was already on the table"
for Holloman. Tr. 42:14-43:12. He agreed with his affidavit
that Hobbs said "'that if the Court denied the
agreement then Mr. Holloman was guaranteed a win on
appeal.'" Tr. 48:1-8.
testified that Blanchard spoke to him about the immunity
agreement and suggested that he "should meet with David
Holt [from the Commonwealth's attorney's office] and
do a debriefing," and Blanchard mailed him the
agreement, which he signed. Tr. 64:5-23. He met with Holt and
several police officers for a debriefing on June 1, 2011, and
said that he agreed to do so because he was "looking to
get a plea offer" "so I wouldn't have to spend
the rest of my life in prison." Tr. 64:19-66:9. Holloman
said that, at the start of the debriefing, Holt was not
promising anything, and Holloman told him that he agreed to
the "debriefing because I want consideration. I want you
to consider giving me a plea offer." Tr. 67:25-68:15.
asked whether, when he signed the immunity agreement, he
believed his charges would be dismissed, Holloman responded:
"When I signed the agreement... I ain't have an idea
for real what was going on .... I didn't think I was
supposed to not be prosecuted. I thought I always was
supposed to be prosecuted, but I was looking for a plea
offer." Tr. 70:6-18. He stated that he had Blanchard
removed from his case because Holloman "ain't
understand the immunity agreement" and Blanchard
"was not doing the things that I needed him to do
because he didn't explain it to me." Tr.
testified that Hobbs was then appointed to represent him, and
Holloman asked for a jury trial. Tr. 71:17-72:3. He stated
that Hobbs visited him in jail on May 16, 2014, and told him
that, upon reviewing the immunity agreement more closely,
"he realized that the Commonwealth had messed up in the
language in the immunity agreement" and "I
couldn't be prosecuted at all because they messed up the
language." Tr. 72:7-73:7. Holloman was present for the
motions hearings when the court determined that the plea
agreement did not bar his prosecution. Tr. 73:18-74:18. He
had further discussions with Hobbs in June 2014 before trial,
and Hobbs informed him that the Commonwealth offered a plea
deal with a 20-year prison term. Tr. 74:23-75:6. Holloman
I asked Mr. Hobbs what did he think about that because Mr.
Hobbs was so strongly built on this immunity agreement saying
I couldn't be prosecuted. Mr. Hobbs['] exact words to
me, he's like, it's one of those issues where if you
take 20 years, you will be sitting in the penitentiary and
you could have come home in two if you allow this process to
work. The process that Mr. Hobbs was talking about was the
Supreme Court overruling the  Judge's ruling about the
also explained how his discussions with Hobbs after the
motions hearing changed his view of the plea deal:
Before that point I never thought that I couldn't be
prosecuted. So when [Hobbs] came to me and brought [the plea
agreement] to me and he explained to me and gave me . . .
another copy of the document because I didn't have it,
that's when everything started rolling in ...