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Holloman v. Clarke

United States District Court, E.D. Virginia, Norfolk Division

January 4, 2019

SHAVIS HOLLOMAN, #1003701 Petitioner,
HAROLD CLARKE, Director for the Virginia Department of Corrections, Respondent.


          Robert J. Krask, United States Magistrate Judge.

         This 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.


         The 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.

         A. Holloman's Trial and Direct Appeals

         Shavis 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.[1] 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 206-07.

         1. Pretrial and Trial Proceedings

         On May 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 criminal activity.

SCV 148; Holloman v. Commonwealth, No. 1319-14-1, (Va.App. 2014) ("Va. App.") at 25.[2]

         The 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.

         Holloman 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 231.

         At the 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.

         Holloman 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.[3] 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.

         The 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 responded:

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.

SCV 355.

         Holloman 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.

         Fronkier 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.

         As 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.[4] 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 members.
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.[5]

Va.App. 23-24; Holloman v. Com., 775 S.E.2d 434, 438 (Va.App. 2015).

         Latoya 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.[6] 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.

         Detective 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.[7] 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.

         Detective 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.[8] Id. at 689-92.

         Detective 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.

         After 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.[9] Id. at 811. The jury convicted and sentenced Holloman on all charges. Id. at 852-54.

         2. Holloman's convictions were upheld on direct appeal.

         Holloman 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.

         The 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.

         The 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.[10] Id.

         The 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.

         Finally, 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.

         Holloman 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.

         B. The Supreme Court of Virginia dismissed Holloman's habeas petition.

         1. Holloman's Petition and Initial Proceedings in the Supreme Court of Virginia

         Holloman filed a pro se petition for a writ of habeas corpus in the Supreme Court of Virginia on June 20, 2016.[11] 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.

         Holloman 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 testimony.

         Respondent 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.

         Respondent 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.

         2. The circuit court held an evidentiary hearing regarding the ineffective assistance of counsel claims.

         On 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).[12] 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." Id.

         On July 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.[13] 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)).

         Elliot 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." Tr. 36:2-17.

         On 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.

         Holloman 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.

         When 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. 70:23-71:14.

         Holloman 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 stated:

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 immunity agreement.

Tr. 75:6-16.

         Holloman 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 ...

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