Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holloway v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

June 13, 2018

NICHOLAS R. HOLLOWAY PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Court Judge James M. Moody Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Petitioner Nicholas R. Holloway (“Holloway”) seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. Holloway is currently in the custody of the Arkansas Department of Correction (ADC) following his 2014 guilty plea in the Lonoke County Circuit Court on the charges of first-degree murder and tampering with physical evidence.[1] Holloway was sentenced to a total of 420 months' imprisonment. Having entered a guilty plea, no direct appeal was available. Holloway filed a Rule 37 petition for postconviction relief with the trial court in July 2014, alleging two instances of ineffective assistance of counsel.[2] Holloway was represented by counsel, Danny R. Williams, in the Rule 37 proceeding. Following an evidentiary hearing, the trial court denied postconviction relief in a December 2014 decision. Holloway filed a notice of appeal but did not timely lodge the record. Two extensions were granted to allow Holloway to file the transcript. Even with the extensions, the record was not timely lodged.[3] In May 2016, Holloway filed a motion for rule on the clerk seeking permission to lodge the record and proceed with the appeal. This request was granted by the Supreme Court of Arkansas in June 2016. Ultimately, the trial court's decision affirming the trial court's denial of the Rule 37 petition was affirmed. Holloway v. State, 2016 Ark. 265. In denying relief, the Supreme Court of Arkansas found Holloway had abandoned his two claims of ineffective assistance of counsel because his brief failed to include arguments supporting those claims. Thus, the merits of the claims of ineffective assistance of counsel were not addressed by the Supreme Court of Arkansas.

         In his federal habeas corpus petition, Holloway claims he received ineffective assistance of counsel in the following ways:

(1) his appellate attorney abandoned his ineffective assistance of trial counsel claims;
(2) his trial attorney failed to seek the suppression of evidence connected with the seizure of his cellphone;
(3) his trial attorney misinformed him about the amount of time he would serve as a result of his guilty plea; and
(4) his trial attorney failed to provide information to him about his right to challenge and exclude cellphone data from a trial.

         Liberally construing the petition, Holloway also claims, as a fifth ground for relief, that he was actually innocent.

         By Court Order of May 1, 2018, Holloway was notified that respondent Wendy Kelley (“Kelley”) contends claims 2, 3, and 4 are procedurally barred in this Court due to Holloway's failure to adequately pursue these claims in state court, as required by Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny. Holloway was given an opportunity to and did address this contention by filing a pleading on or before June 1, 2018. Docket entry no. 11.

         Procedural Bar of Claims 2, 3, and 4.

         The Court will first address Kelley's procedural bar claims. Kelley contends claims 2, 3, and 4 are procedurally barred because Holloway failed to adequately present these claims in his state Rule 37 appeal. The basic concept of procedural default is that a federal court should not reach the merits of a litigant's habeas corpus allegation if he has procedurally defaulted in raising that claim in state court: that is, if he was aware of the ground, but failed to pursue it to a final determination. The exception created by the Supreme Court permits such an allegation to be addressed if the litigant can establish "cause" for his failure to assert the known ground and "prejudice" resulting from that failure. See Clark v. Wood, 823 F.2d l24l, l250-5l (8th Cir. l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir. l987).

         We are mindful that Martinez v. Ryan, 566 U.S. 1 (2012), and subsequent cases demonstrate there are exceptions to the general rule of procedural default. We are also aware that the procedural bar analysis need not be performed in every case and are guided by the following language of the Eighth Circuit Court of Appeals:

In cases such as this, it might well be easier and more efficient to reach the merits than to go through the studied process required by the procedural default doctrine. Recent commentary points up the problems with the cause and prejudice standard:
[T]he decision tree for habeas review of defaulted claims is intricate and costly. . . . In essence, Sykes and Strickland require habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default.

McKinnon v. Lockhart, 921 F.2d 830, 833 n.7 (8th Cir. 1990) (quoting Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 690 (1990)). See also Williams v. Norris, 612 F.3d 941, 953 (8th Cir. 2010). In this instance, we find it wiser and a better use of judicial resources to forego the procedural default analysis and address the merits of claims 2, 3, and 4.

         Claim One: Holloway's appellate attorney was ineffective when he abandoned ineffective assistance of trial counsel claims in the Rule 37 appeal.

         We have previously recited the history of Holloway's state court postconviction proceedings. In brief, his Rule 37 petition alleging ineffective assistance of trial counsel was denied by the trial court after a hearing. Holloway, through his habeas counsel, appealed this finding, and was allowed to proceed with the appeal of the trial court's denial of his Rule 37 petition, despite counsel's failure to meet filing deadlines. Ultimately, the Arkansas Supreme Court found he had abandoned his claims of ineffective assistance of counsel raised in the Rule 37 petition because he failed to make arguments supporting his claims in the appellate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.