United States District Court, E.D. Virginia, Norfolk Division
L. WRIGHT ALLEN UNITED STATES DISTRICT JUDGE.
matter before the Court is a Report and Recommendation
regarding Respondent's Motion to Dismiss the Petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Motion was referred to the United States Magistrate Judge
pursuant to the provisions of 28 U.S.C. §§
636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b),
and Local Rule 72 for report and recommendation
("R&R"). The R&R was filed on January 4,
2019 and recommended granting the Motion to dismiss.
Petitioner subsequently filed objections. This Court has
reviewed the record and has considered the objections. After
making de novo findings regarding the portions
objected to, and for the reasons stated herein, the Court
ADOPTS the Report and Recommendation and
GRANTS Respondent's Motion for dismissal
of Mr. Holloman's Petition.
Holloman filed a Petition under § 2254 alleging several
constitutional violations regarding his prosecution and
appeal. In the Motion to Dismiss (ECF No. 9), Respondent
argues that the record considered by the Virginia Supreme
Court supports that trial counsel's "assessment of
the nature of the immunity agreement was not deficient under
the highly deferential standard of review mandated by
Strickland, and [trial counsel] never assured
petitioner that an argument that he had received
transactional immunity was certain to prevail in any direct
appeal." ECF No. 11 at 9 (citing Strickland v.
Washington, 466 U.S. 668 (1984)). To prevail on an
ineffective assistance of counsel claim, a petitioner must
show (1) "that counsel made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment;" and
(2) that the "deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687. The
R&R recommends granting the Government's Motion to
Dismiss Mr. Holloman's Petition.
to Petitioner, the R&R erred by finding that trial
counsel's alleged misinterpretation of the Immunity
Agreement did not violate the Strickland standard of
effective assistance of counsel. ECF No. 26 at 1.
de novo review of the record, this Court concludes
that Mr. Holloman fails to demonstrate the first prong of
ineffective assistance of counsel under Strickland,
and the R&R correctly concludes the same. A petitioner
must overcome the presumption that the challenged conduct
might be the "result of sound trial strategy."
Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994).
Trial counsel argued that an indictment against Petitioner
should have been dismissed because Petitioner had bargained
for "transactional" immunity in exchange for
cooperation. The Virginia Supreme Court rejected this
interpretation of the Immunity Agreement, holding that
Petitioner was afforded only "use" immunity for his
cooperation. Nevertheless, trial counsel adopted a reasonably
prudent strategy that included (1) using the alleged
ambiguity in the immunity agreement to try to secure the
dismissal of the charges, and (2) defending Mr. Holloman at
trial when the court did not dismiss the charges, while
preserving his arguments about the immunity agreement for
appeal ECF No. 29 at 31. Mr. Holloman fails to overcome the
presumption that counsel's strategy, even if ultimately
unsuccessful, was reasonable.
de novo review of the record, Mr. Holloman also
fails to demonstrate the prejudice prong of ineffective
assistance of counsel under Strickland, and the
R&R correctly concludes the same. To demonstrate
prejudice, Mr. Holloman must show that there is "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. Mr. Holloman alleges that counsel's advice about the
Immunity Agreement caused him to reject favorable plea deals.
He argues that counsel guaranteed success on appeal. The
record does not support that such a promise was made. ECF No.
23 at 31.
state trial court rejected Mr. Holloman's claims that
counsel caused him to reject plea deals. ECF No. 11 at 9. The
record shows that Mr. Holloman construed the plea offers
resulting in more than twenty years' incarceration as
tantamount to a life sentence. Id. The Virginia
Supreme Court found that Mr. Holloman "entered into the
immunity agreement in hopes of obtaining a plea agreement to
avoid a life sentence, [and] understood he would still be
prosecuted for his role in the crimes." ECF No. 23 at
29. The result would have been the same if counsel had
advised Mr. Holloman that the Immunity Agreement was for
"use" immunity rather than transactional. In either
course, Mr. Holloman would be prosecuted for his violent
crimes. Therefore, Mr. Holloman suffered no prejudice even if
counsel allegedly misinterpreted the Immunity Agreement. The
objections to the R&R are OVERRULED.
Court, having reviewed the record and making de novo
findings regarding the positions of the R&R objected to,
ADOPTS AND APPROVES the findings and
recommendations set forth in the Report and Recommendation
(ECF No. 23). It is therefore ORDERED that
Respondent's Motion to Dismiss (ECF No. 9) the Petition
Holloman is ADVISED that if he intends to
appeal this Final Order and seek a certificate of
appealability from the United States Court of Appeals for the
Fourth Circuit, he must forward a Notice of Appeal to the
Clerk of the United States District Court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia, 23510
within sixty days from the date of this Order.