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Holleman, Robert L. v. Cotton, Zettie
Citation: Not availableDocket: 00-3791
Court: Court of Appeals for the Seventh Circuit; August 19, 2002; Federal Appellate Court
Original Court Document: View Document
Robert Lee Holleman appealed a decision from the U.S. District Court for the Northern District of Indiana regarding the dismissal of his second petition under 28 U.S.C. § 2254, which he claimed was an abuse of the writ. Holleman contended that he could demonstrate cause and prejudice related to ineffective assistance of counsel. The Court of Appeals for the Seventh Circuit, comprising Judges CUDAHY, EASTERBROOK, and ROVNER, affirmed the district court’s ruling without oral argument. Holleman was charged with the 1977 murder of Robin Opfer, and his initial attorney, Stanley Jablonski, was replaced by James Frank due to disagreements. Frank had previously represented Holleman’s co-defendant, Frank Love, and was appointed after assuring the judge there was no conflict of interest. During Holleman’s trial, Frank did not effectively challenge the testimony of Mary Schaar, a surprise witness who could have undermined Holleman’s defense, fearing it might revive charges against Love. Holleman was ultimately convicted of felony murder and received a life sentence. Following exhaustion of state appeals, Holleman sought federal relief but did not previously raise ineffective assistance of counsel. This petition was denied, and the denial was upheld by the appellate court. Later, his new appellate counsel, Jeffery Evans, discovered that Frank had an actual conflict of interest that impacted his performance during the trial. On February 21, 1995, Holleman filed a second habeas petition, asserting two primary claims: (1) the trial court did not properly investigate a potential conflict of interest involving his attorney, Frank, which is referred to as the 'judicial inquiry' claim, and (2) Frank's conflict of interest hindered his effective assistance of counsel, known as the 'attorney conflict' claim. The state objected, contending that these claims were not raised in Holleman's first petition, and thus his second petition should be dismissed as an abuse of the writ unless he could demonstrate cause and prejudice. On May 31, 1995, the district court dismissed Holleman's petition for being an abuse of the writ. However, on September 15, 1998, the appellate court vacated this dismissal and ordered an evidentiary hearing to assess whether Holleman could show cause and prejudice regarding his claims. The appellate court noted that the existing record did not confirm Holleman's awareness of the conflict or the trial judge's knowledge of any potential conflict. The court mandated a remand to a different judge for this hearing and emphasized that Holleman needed to demonstrate prejudice to overcome the abuse-of-the-writ assertion. An evidentiary hearing took place on May 25, 2000. Following this, the district court again denied the second petition as an abuse of the writ, concluding that the trial judge had no knowledge of any conflict and that Holleman could not prove prejudice regarding his judicial inquiry claim. The court found that Holleman could have raised the judicial inquiry claim in his first petition but failed to do so without a valid excuse. Moreover, it determined that Holleman had sufficient reason to investigate the attorney conflict claim and that he would have learned of the conflict had he made inquiries. Consequently, the district court ruled that Holleman could not establish cause for either claim. Holleman subsequently appealed the district court's decision. The appellate court has jurisdiction under 28 U.S.C. 1921 and reviews legal issues de novo and factual issues for clear error. Mixed questions of law and fact are also reviewed de novo. The doctrines of procedural default and abuse-of-the-writ aim to protect state interests in the finality of criminal judgments by limiting the reexamination of convictions based on previously unaddressed grounds. In cases of abuse-of-the-writ, the cause and prejudice standard is identical to that in procedural default cases, focusing on objective criteria. Holleman may establish cause if he can show ignorance of facts sufficient to raise his claim in his initial petition. To demonstrate prejudice regarding his attorney conflict claim, he must prove that an actual conflict adversely impacted his counsel's performance, and for the judicial inquiry claim, he must show that the claim would have succeeded. The court affirmed the dismissal of Holleman’s second petition, finding he did not prove both cause and prejudice for either claim. Although he might establish cause for the judicial inquiry claim, he failed to demonstrate prejudice since the claim would not have succeeded; the trial judge had no obligation to further investigate Frank's conflict. Conversely, while Holleman could show prejudice for the attorney conflict claim, he lacked cause as he did not inquire about Frank’s potential conflict. Had Frank confirmed a conflict, Holleman would have established cause; if denied, it would indicate an external impediment. Under Holloway and Cuyler, trial courts must investigate known or reasonably suspected conflicts of interest. However, courts can assume that multiple representation does not entail a conflict unless special circumstances arise. Despite recent Supreme Court doubts about Cuyler's applicability in cases of successive representation, Holleman could not prove prejudice regarding his judicial inquiry claim. The district court determined Holleman could not establish cause or prejudice before or during his trial. While Holleman might show cause due to a lack of knowledge regarding Judge Clement's inquiry into Frank's conflict, the judge had asked Frank if he foresaw any conflict, to which Frank replied he did not. Holleman likely would have raised a judicial inquiry claim regarding Judge Clement's knowledge of a potential conflict of interest had he been aware of the trial court’s inquiry. He could have also claimed that the trial court failed to address an actual conflict of interest when it arose during the trial. However, Holleman cannot prove prejudice since such a claim would have failed; the trial court had no further obligation to inquire before or during Holleman's trial. Prejudice is only presumed if a conflict significantly impacts counsel’s performance, a standard not met here. Holleman contends that Judge Clement's inquiry into Frank indicates awareness of a potential conflict, necessitating further investigation. However, this argument is unconvincing. Multiple representation does not violate the Sixth Amendment without special circumstances, which were absent in this case. No objections were raised regarding multiple representation, and separate trials for Holleman and his co-defendants mitigated potential conflicts. Judge Clement's inquiry into Frank was sufficient, as Frank indicated no conflict, and Judge Clement was justified in relying on this representation. The court found no clear error in determining that Frank reasonably believed there was no conflict, as he was unaware that the state would call a witness that would create a conflict. Therefore, Judge Clement did not have a duty to conduct a more extensive inquiry before the trial. The argument that Judge Clement should have recognized a conflict during the trial due to Love's alibi defense is also presented, but remains unsubstantiated. The district court determined that Judge Clement did not recognize the significance of Mary Schaar, a finding supported by Holleman's appellate counsel, Jeffery Evans, who failed to identify any conflict of interest during his review of the trial transcript. Consequently, the trial judge had no obligation to investigate Frank's potential conflict, as he was unaware of it, negating Holleman's claims of prejudice regarding judicial inquiry. Holleman's claim of an attorney conflict, asserting that Frank had an actual conflict adversely affecting trial outcomes, was also dismissed because Holleman could not demonstrate cause for not raising this claim in his initial petition. To establish cause, external factors must hinder the petitioner from presenting the claim, but the district court found no such impediments existed that prevented Holleman from discovering Frank's conflict. Holleman had reason to inquire due to his suspicions about Frank's multiple representations, which he expressed to his appellate counsel as early as 1977 and maintained over the years. Despite Holleman's suspicions regarding Frank's prior representation of a co-defendant, such suspicion alone did not constitute grounds for a conflict claim in the first petition, as multiple representation does not inherently suggest a conflict. The excerpt raises questions about the obligation of a petitioner to investigate specific claims of ineffective assistance related to conflicts of interest, noting that while some courts have implied a duty exists, deeper analysis of the issue is lacking. The comparison to Mickens v. Taylor illustrates the complexity surrounding the requirement for a petitioner to inquire into potential conflicts of interest involving their counsel. Mickens filed a petition for federal habeas relief, asserting that his attorney's silence and juvenile court confidentiality laws prevented him from raising conflict of interest claims in state court. The district court determined that Mickens could show cause to overcome his procedural default, as the lack of information about the conflict was not discoverable through diligent investigation. The Fourth Circuit upheld this conclusion, indicating that if Mickens had not made any inquiries into potential conflicts, he could not demonstrate cause. The relevance of juvenile confidentiality laws hinges on whether Mickens had a duty to inquire, which was complicated by the futility of such inquiries due to the laws. While it may seem excessive to require Holleman to inquire despite attorney Frank's silence, it was noted that Judge Clement had similarly questioned Frank and received reassurance. The trial court’s duty to inquire is primarily to ensure a fair trial, while the petitioner’s obligation focuses on researching historical facts for habeas claims. The abuse-of-the-writ doctrine emphasizes the necessity for petitioners to conduct reasonable investigations to support their claims. Holleman had a responsibility to inquire about relevant claims, including potential conflicts of interest, especially given the Supreme Court's acknowledgment of inherent conflicts in multiple representation scenarios. Holleman's suspicions regarding the multiple representation further supported the need for inquiry into the conflict of interest claim. Evans identified a conflict of interest related to multiple representation, believing a waiver should have been in place. Holleman, aware of this situation, had a duty to investigate the conflict of interest claim. Although he might correctly conclude there was no basis for the claim after a reasonable investigation, he was required to make at least minimal inquiries. A petitioner can demonstrate cause for not raising a claim if an external impediment exists or if they conducted a reasonable investigation. An inquiry may be deemed futile if the petitioner could not have discovered relevant facts even if they had asked. Holleman failed to make any inquiries into the conflict and thus did not demonstrate diligence. He argued his diligence was satisfied by sending two letters to Frank regarding appeal theories, but these did not specifically address conflicts of interest. Holleman suggested further inquiry would have been futile, yet the district court found Frank would likely have disclosed any conflict if asked. Moreover, the court determined Frank was not difficult to locate at the relevant time, and this assessment was not clearly erroneous. Frank served as a public defender in Lake County until his resignation in the late 1970s and continued practicing law until approximately 1985, when he faced a twenty-three count indictment. The court found no justification for Holleman’s failure to raise an attorney conflict claim in his initial habeas petition, concluding that Holleman could not overcome the abuse-of-the-writ objection. However, Judge Rovner dissented, highlighting contradictions in the majority's reasoning. The majority argued that Judge Clement, who appointed Frank and presided over Holleman's trial, had no duty to investigate a potential conflict of interest, despite Frank's prior involvement in securing a dismissal for Holleman’s co-defendant. Conversely, the majority held that Holleman had a responsibility to inquire about the conflict and effectively forfeited his claim by not doing so by 1981. Rovner contended that it was Frank's duty to disclose any conflict, which he failed to do, compromising his loyalty to Holleman. Frank's silence and ethical breaches obstructed Holleman's ability to recognize the conflict claim, as he was protecting his own interests rather than acting in Holleman’s favor. Frank only admitted to the conflict long after the trial, during a time when he was involved in criminal activities. Therefore, Rovner argued that Holleman had sufficient reason not to discover the conflict prior to his first habeas petition, asserting that he did not abuse the writ by raising the issue in a subsequent petition. Judge Clement was not required to inquire about a potential conflict of interest when appointing Frank to represent Holleman, as established by the Supreme Court in Cuyler v. Sullivan and Mickens v. Taylor. Although Judge Clement was aware of Frank’s success in dismissing charges against Holleman’s co-defendant, Frank Love, there was no indication that defending Holleman would conflict with Love’s interests at that time. The judge's inquiry about a conflict was unnecessary, as the facts did not mandate it. However, once Love's alibi became an issue during Holleman’s trial, the situation changed. Frank had assured the judge of no conflict upon his appointment, which the judge had the right to accept. Nonetheless, as the trial progressed, it became clear that Holleman identified Love as the shooter in his post-arrest statements, and the prosecution disputed Holleman’s defense, which claimed he was merely a bystander. The State actively worked to portray Holleman as the shooter, and the mention of Love’s dismissed charges and alibi evidence became crucial to the trial. Therefore, it was evident to the judge that this case involved more than just successive representation of co-defendants, especially once the dynamics of Love's role were introduced in court. Holleman's post-arrest statements were deemed incredible as they attempted to shift blame for Opfer’s murder to Love and others involved in the robbery. Holleman was identified as the principal shooter, acting alone, while Frank Love was confirmed to be absent from the scene on October 5th and subsequently dismissed from the case. The argument was presented that Holleman killed Robin Opfer and that Scott Moore's murder was also committed by Holleman. Judge Clement recognized a conflict of interest for Love's former attorney, Frank, as he could not effectively represent Holleman without compromising Love’s interests. Despite acknowledging the potential conflict, the district court concluded that Judge Clement had no obligation to investigate the conflict further during Holleman’s trial. The court noted that when appointing Frank, there was no indication of a conflict other than his previous representation of Love, and Frank could not have foreseen Schaar's testimony as a potential conflict. However, this analysis did not adequately address the evolving circumstances once the trial began and the apparent conflict between the State’s and Holleman’s theories became clear. The discussion suggests skepticism regarding the district court's determination that Judge Clement was not required to investigate the conflict. It raises the possibility that Holleman’s delay in pursuing the conflict claim could be justified, as he only became aware of the actual conflict in 1991 when Frank acknowledged it. The argument against Holleman’s claim of abuse of the writ hinges on whether he had access to the necessary evidence of Frank's divided loyalties prior to 1981, which remains uncertain. Holleman had no obligation to seek evidence regarding a potential conflict of interest before filing his initial federal habeas petition in 1981. According to *McCleskey v. Zant*, a habeas petitioner must exercise due diligence in identifying and pursuing claims known or reasonably available to them at the time of filing. If a claim is not pursued in the first petition and was reasonably available, it is barred in subsequent petitions unless a fundamental miscarriage of justice is proven. However, the petitioner is not required to foresee claims they are unaware of. Therefore, Holleman could only be considered to have abused the writ if he had been aware of his attorney's conflict at the time of his first petition. The majority's reasoning regarding Judge Clement's failure to investigate the conflict reflects that Holleman also lacked notice of the conflict. The judge's knowledge of the attorney's previous representation of Holleman’s co-defendant did not compel inquiry into a conflict, which similarly would not have prompted Holleman, a layperson, to question his attorney's loyalty. The trial record did not indicate any basis for asserting a conflict of interest to Holleman’s appellate or post-conviction counsel. Holding Holleman to a higher standard than Judge Clement is unjustifiable, as the judge’s duty to investigate conflicts is distinct from the petitioner’s obligation to uncover historical facts for habeas claims. The trial judge's role is to safeguard the defendant's rights, while the habeas petitioner aims to demonstrate the infringement of those rights. Both parties share a duty of inquiry based on notice. If the facts presented to Judge Clement were insufficient to alert him to a conflict, then Holleman, lacking awareness of any deprivation, could not be expected to inquire further. Holleman had less knowledge than Judge Clement regarding the case's details, as he was not privy to discussions about potential conflicts that occurred outside his presence. Although it was noted that Judge Clement was not obligated to question Frank about a conflict, he could reasonably rely on Frank's assurance of no conflict. Similarly, Holleman should have been able to rely on Frank's silence regarding any conflicts. The obligation of an attorney to disclose conflicts is emphasized, as an omission can equate to misrepresentation in a fiduciary context. The attorney-client relationship is characterized by a high degree of trust, and the court has a duty to protect that trust to avoid prejudice against the rights of the party involved. An attorney is required to represent their client's interests with utmost fidelity and good faith, ensuring prompt communication of any pertinent information. The fiduciary nature of the attorney-client relationship imposes on the attorney the duty to disclose conflicts of interest, rather than placing the burden on the client to inquire. This principle has been affirmed in various legal precedents, establishing that clients are entitled to assume their attorney does not have conflicting obligations unless informed otherwise. In the case discussed, Frank's silence regarding a conflict of interest hindered Holleman’s ability to pursue a conflict claim in habeas proceedings, ultimately leading to a breach of ethical duty by Frank when he failed to disclose this conflict and subsequently abandoned his representation. The legal framework underscores that it is the attorney's responsibility to identify and communicate any conflicts, reinforcing that clients should not rely on their own awareness of these issues. Frank faced a significant ethical dilemma when Mary Schaar testified to support Love's alibi, implicating Holleman as the triggerman in Opfer’s murder. He had to choose between undermining Schaar's credibility, which would harm Love—his former client—or remaining silent and jeopardizing Holleman's defense. Frank opted for silence, resulting in a severe ethical breach by prioritizing one client's interests over another. Although the obligation for attorneys to disclose conflicts of interest became clearer in later cases, the principle was well-established and reflected in Indiana's professional conduct rules prior to Holleman's 1977 trial. Frank’s conflict meant that Holleman was unaware of the detrimental impact on his defense, complicating any potential claims of conflict of interest in Holleman's subsequent 1981 habeas petition. The text draws parallels to other cases where evidence was concealed, thereby hindering a defendant's ability to pursue claims effectively. Despite Holleman's suspicions regarding his attorney’s divided loyalties, the suggestion is made that he should have investigated further, which the court acknowledges but does not fully endorse as reasonable given the circumstances. Holleman raised concerns about potential conflicts of interest regarding his attorney, Frank, who had previously represented both Holleman and his co-defendant, Love. However, Holleman's decision to mention this to his counsel was based solely on a vague intuition rather than any substantial evidence indicating an actual conflict. Judge Clement also questioned Frank about the potential for a conflict, but this did not imply that he had a duty to investigate it further. Holleman's subjective feelings, unsupported by factual evidence, did not provide reasonable grounds for believing a conflict existed. During his testimony, Holleman acknowledged that his initial mention of Frank's dual representation to his appellate counsel, Dennis Kramer, stemmed from a "gut feeling" rather than concrete evidence. Kramer concluded that the mere fact of dual representation did not warrant a conflict of interest claim, which Holleman accepted. Years later, when speaking with his post-conviction counsel, Jeffery Evans, Holleman again referenced the dual representation issue, but only in a casual manner, indicating a lack of urgency or conviction regarding a conflict. Evans’s recollection confirmed that the mention of the conflict was made in passing and that Holleman appeared hesitant when discussing it. Holleman may have had an obligation to investigate a potential conflict of interest before filing his first habeas petition in 1981. However, he can only be criticized for failing to raise this claim if the necessary evidence was reasonably discoverable at that time. The district court and colleagues noted that Frank, who ultimately confessed to the conflict in 1991, should have disclosed this information before 1981. They argued that Holleman is at fault for not asking Frank about the conflict sooner, a perspective that is challenged on several grounds. First, Frank had a duty to disclose the conflict proactively during Holleman’s trial, rather than waiting for Holleman to inquire. His silence resulted in significant harm to Holleman’s interests, and it is implausible to believe that he would have been forthcoming if asked. Second, by the time Holleman sought to address potential appeal issues, Frank had ceased communication with him, directing Holleman to his appellate counsel instead. This indicates that Frank prioritized other interests over Holleman's, constituting severe ethical violations that could jeopardize his law license. Third, Frank's failure to disclose the conflict was part of a broader pattern of unethical behavior, as evidenced by a 1985 indictment for bribery and obstruction of justice related to DUI cases. Frank had been engaged in these unethical activities since at least January 1980, suggesting he would be unlikely to reveal his conflict of interest in 1980 or 1981 due to the risk of attracting scrutiny from the Indiana bar. Ultimately, the context of Frank's ethical breaches undermines the notion that Holleman bears responsibility for not discovering the conflict sooner. Frank’s attempts to obstruct justice indicate that his initial reaction to an investigation into his actions was to deceive and encourage others to do the same. Years later, after becoming a convicted felon with nothing to lose, Frank reluctantly acknowledged his conflict of interest. Initially, during a 1988 interview, he emphasized his successful representation of Love, and it wasn't until a 1991 meeting that he admitted his divided loyalties prevented him from effectively cross-examining Schaar. This reluctance underscores that Holleman did not have access to the crucial evidence needed to support his claim during his first habeas petition. The record does not substantiate claims that Holleman abused the writ of habeas corpus; it was only through the diligent work of his post-conviction counsel that Frank's conflict became evident. The assertion that Holleman should have recognized the conflict sooner overlooks Frank's ethical breaches and disregards the principle that it was Frank's responsibility to disclose his conflict, not others' to inquire. The conclusion reached is viewed as lacking common sense and contrary to justice.