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Hollimon v. Williams

United States District Court, D. Nevada

April 18, 2018

REGINALD L. HOLLIMON, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          Gloria M. Navarro, Chief United States District Judge

         This habeas matter under 28 U.S.C. § 2254 by a Nevada state inmate comes before the Court for a final decision on the merits.

         Background

         Petitioner Reginald Hollimon challenges his 2013 Nevada state conviction, pursuant to a jury verdict, of robbery and his adjudication as a habitual criminal under the “small” Nevada habitual criminal statute. He was sentenced to 96 to 240 months. Hollimon challenged the conviction in the state courts on direct appeal and post-conviction review.

         Petitioner challenges, inter alia, the sufficiency of the evidence supporting his conviction for robbery. He was charged essentially with a purse snatching in a grocery store parking lot. The evidence presented at trial included, inter alia, the following.[1]

         Store security guard Kenneth Hodge testified as follows.

         Hodge came on duty at the Von's Grocery Store at Maryland Parkway and Twain at 10:00 p.m. on November 23, 2011. Shortly after coming on duty, Hodge watched an individual who he identified at trial as Reginald Hollimon approach the cashier for the slot machines area a first time and thereafter a second time. Hollimon was wearing a multicolored shirt during that time. (ECF No. 11-2, at 24-25 & 30-36; Exhibit 27, at 23-24 & 29-35.)[2]

         About thirty minutes later, both Hodge and Hollimon happened to be exiting the store at the same time. Hodge went out to his car to eat his lunch, as he had not eaten before reporting to work. As he sat in his car eating, he watched Hollimon go kneel down behind a utility box and then move out from behind the box and again kneel by it. Hollimon then removed the multicolored shirt, leaving him wearing all black, including a black long-sleeved shirt. Hollimon then began walking back in the general direction of the store entrance. Hodge exited his vehicle to intercept Hollimon, but his view of Hollimon was briefly obstructed by a vehicle while he did so. (ECF No. 11-2, at 36-43; Exhibit 27, at 35-42.)

         Meanwhile, Jolene Thomas had been grocery shopping at Vons with her sister Dovie Henderson, her then ten-year-old daughter Onyx, and her then thirteen-year-old daughter Sapphire. (ECF No. 11-2, at 75-79; Exhibit 27, at 74-78.)

         According to Jolene Thomas' testimony, at the time of the incident, the four of them had exited the Vons and were nearly finished unloading the shopping cart into the trunk of their vehicle. Dovie was at the driver's side getting ready to get in the vehicle, and Sapphire was at the passenger side waiting for Dovie to unlock the doors so that she also could get in. The shopping cart was up against the rear bumper of the vehicle with the rear handle area facing back toward the store. Thomas was at the rear handle area of the cart bending over the last grocery items, with her daughter Onyx standing to the side of the cart facing her. Thomas' large black purse was sitting in the raised section of the shopping cart. (ECF No. 11-2, at 77- 80 & 84; Exhibit 27, at 76-79 & 83.)

         According to Thomas' testimony, as she was rising back up from leaning over the groceries, a man reached between Thomas and her daughter Onyx, grabbed Thomas' purse and pulled it out between Thomas and Onyx. The man then slammed into Onyx, knocking her back into the shopping cart and down to the ground, before running away with Thomas' purse. Thomas testified that there had been enough room between her and Onyx for the man to reach in and grab her purse without making contact with either one. She testified, however, that, after grabbing the purse, the approximately 6'2" to 6'3" man lowered his shoulder and took a step into Onyx and hit her in her chest and shoulder area. (ECF No. 11-2, at 84-88 & 100; Exhibit 27, at 83-87 & 99.)

         Thomas testified that the man's action in knocking Onyx into the cart and to the ground appeared to her to be deliberate. Onyx was slightly over 5'1" tall; and, with some health issues, she weighed 270 pounds at the time. Thomas testified that Onyx typically could not be knocked down easily if they were playing or wrestling. The man made no effort to help her up or apologize. Onyx' back was bruised by the initial impact with the shopping cart; and she also had pain in her knee, elbow and shoulder afterwards. (ECF No. 11-2, at 86-91 & 103; Exhibit 27, at 85-90 & 102.)

         Thomas positively identified Hollimon at trial as the man who grabbed her purse and knocked her daughter to the ground. (ECF No. 11-2, at 85-86; Exhibit 27, at 84-85.)

         When Kenneth Hodge was able to see where Hollimon was again, he saw Onyx Thomas falling to the ground and Hollimon then turning and fleeing with a purse, while a woman was screaming. (ECF No. 11-2, at 43-44; Exhibit 27, at 42-43.)

         Both Hodge and Jolene Thomas initially gave chase as Hollimon ran west toward the neighboring Molasky Park. Thomas stopped at the edge of the park, however, after the security guard Hodge passed her up. (ECF No. 11-2, at 45 & 85; Exhibit 27, at 44 & 84.)

         As he ran, Hollimon shed the black long-sleeved sweatshirt that he was wearing. Thomas went and retrieved it from inside the park, thinking at first that he had dropped her black purse. (ECF No. 11-2, at 45 & 91-94; Exhibit 27, at 44 & 90-93.)

         Hodge meanwhile continued chasing Hollimon, repeatedly calling after him for Hollimon to drop the purse. Hodge followed Hollimon into the grounds of Shelter Island Apartments immediately west of Molasky Park. At one point, Hollimon tripped and fell; and Hodge caught up to him. Hollimon pushed Hodge away forcefully, however, and began running again. Hodge thereafter lost sight of Hollimon for approximately three seconds after Hollimon rounded the corner of a building. Hodge found him immediately thereafter, however, hiding against a wall. When Hodge again asked for the purse, Hollimon emptied the contents of the purse into a dumpster before tendering the purse to Hodge. The security guard took the apparently winded and shirtless Hollimon by the arm and started walking him, against resistance, back toward the grocery store. The Las Vegas Metropolitan Police (“Metro”) arrived shortly after this point, however, and took Hollimon into police custody. (ECF No. 11-2, at 45-58; Exhibit 27, at 44-57.)

         Jolene Thomas identified Hollimon as the man who stole her purse and knocked her daughter to the ground in a showup at the Shelter Island Apartments a short time later. She was “absolute[ly]” certain and “positive” in her identification of Hollimon as the perpetrator. She further identified her purse and the contents of her purse that were found in the dumpster. (ECF No. 11-2, at 94-99; Exhibit 27, at 93-98.)[3]

         Any further factual particulars pertinent to individual claims are discussed further, infra, in the discussion of those claims.

         Standard of Review

         The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings on the merits that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. 563 U.S. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 563 U.S. at 181-88.

         A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

         A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

         To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

. . . . [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

         The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 563 U.S. at 569.

         Discussion

         Ground 1(a): Effective Assistance of Counsel - Alleged Concession of Guilt

         In Ground 1(a), petitioner alleges that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because trial counsel conceded at the preliminary hearing that the evidence was sufficient to charge him with robbery. (ECF No. 6, at 11-12.)

         Hollimon was charged initially by a criminal complaint with one count of possession or sale of personal identifying information and one count of possession of a credit or debit card without the cardholder's consent, based upon his possession of Jolene Thomas' driver's license and a MasterCard. (ECF No. 10-3; Exhibit 3.)

         At the preliminary hearing, Jolene Thomas and Kenneth Hodge testified substantially as they later did at trial, as summarized previously herein, albeit with less exploration of some details. (See ECF No. 10-4, at 2-14; Exhibit 4, at 4-49.)

         Following the preliminary hearing testimony, the State sought to make a number of amendments, including adding: (a) “a third count, battery with intent to commit a crime, being larceny and/or robbery, larceny from the person and/or robbery, specifically that the defendant in an attempt to commit this crime pushed Onyx Thomas our of the way in order to take the purse and complete the theft;” and (b) “a fourth count, robbery, specifically that in the process of completing the robbery the defendant pushed Kenneth Hodge out of the way and continued to run away in order to complete his robbery and to retain possession of Jolene Thomas' purse and the contents thereof.” (ECF No. 10-4, at 14; Exhibit 4, at 50-51.)

         Defense counsel objected to the battery with intent count while acknowledging that “I believe that the robbery has the force element in it, and pushing Onyx to grab the purse seems like it would be something that they could charge as a count of robbery, and so they wouldn't need to have the battery with intent to commit robbery.” After the State modified its amendment to robbery on the third count, counsel stated that “[t]hen that just stops my argument and I had nothing for Count 4.” She thereafter presented argument directed to the original two counts, to which the justice court gave extensive consideration. However, the court ultimately bound all four counts over to the district court. (Ecf No. 10-4, at 14-17; Exhibit 4, at 51-62.)

         The State ultimately charged Hollimon in an amended information at the time of trial with only the two counts of robbery based upon use of force respectively against Onyx Thomas and Kenneth Hodge. The jury convicted only on the first robbery count based upon use of force against Onyx Thomas. (ECF No. 10-24; Exhibit 24. ECF No. 11-7; Exhibit 32.)

         The state appellate courts rejected the corresponding ineffective-assistance claim presented on state post-conviction review on the following basis:

First, appellant claimed that his trial counsel was ineffective during the preliminary hearing for conceding that he committed robbery. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Counsel did not concede during the preliminary hearing that appellant had committed robbery. The discussion appellant highlights occurred because counsel had objected to the State's attempt to add an additional charge of battery. Counsel merely asserted that an additional battery charge would not be appropriate based upon the evidence presented at the preliminary hearing regarding the robbery charge. Because the State presented sufficient evidence at the preliminary hearing to support a probable cause finding for robbery, see Sheriff, Washoe Cnty. v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980), appellant failed to demonstrate a reasonable probability of a different outcome had counsel made different arguments at the preliminary hearing. Therefore, the district court did not err in denying this claim.

(ECF No. 12-32, at 3; Exhibit 82, at 2.)

         The state appellate courts' rejection of this claim was neither contrary to nor an objectively unreasonable application of clearly established federal law as determined by the United States Supreme Court.

         On petitioner's claims of ineffective assistance of counsel, he must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from her perspective at the time. The court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).

         The state appellate courts' conclusion that petitioner could not demonstrate resulting prejudice was not an objectively unreasonable application of the general standard in Strickland. There clearly was sufficient evidence to bind a robbery count over for trial. Nothing more than speculation supports an inference that the State would have charged the case any differently than it ultimately did at trial if defense counsel had argued differently at the preliminary hearing. By the time of trial, the State dropped all other possible charges from the case and proceeded only on a very simple, direct and common-sense information charging Hollimon with only two counts of robbery based upon the use of force respectively against Onyx Thomas and Kenneth Hodge. It again is pure speculation that Hollimon ultimately would have been charged any differently than he ultimately was if counsel had argued differently at the preliminary hearing.

         Petitioner urges that counsel conceded at the preliminary hearing that he was guilty of robbery and that his presumption of innocence was compromised. Nothing in counsel's preliminary hearing argument did - or could - concede guilt at trial, which she vigorously contested. The argument at the preliminary hearing was directed only to the question of whether there was probable cause to charge petitioner, not whether he in fact was guilty of any offense.

         The state appellate courts' rejection of this claim accordingly was neither contrary to nor an unreasonable application of Strickland.

         Ground 1(a) therefore does not provide a basis for federal habeas relief.

         Ground 1(b): Effective Assistance - Impeachment by Police Officer Testimony

         In Ground 1(b), petitioner alleges that he was denied effective assistance of counsel because trial counsel did not call two police officers as witnesses “who would have impeached the victims regarding their prior statements and challenged their version of the events.” Petitioner suggests that “at a trial the defense has to call somebody on the petitioner's behalf” and that “the risk that some how the police officers would have corroborated the witness[‘] trial testimony is a risk counsel had to take.” (ECF No. 6, at 12-13.)

         At trial, defense counsel cross-examined multiple percipient witnesses extensively as to alleged inconsistencies and/or omissions in their prior statements and/or preliminary hearing testimony. (See ECF No. 11-2, at 59-64, 68-70, 99-101, 104-06, 124-27 & 173-74; Exhibit 27, at 58-63, 67-69, 98-100, 103-05, 123-26 & 172-73.)

         The state appellate courts rejected the claim presented on state post-conviction review on the following basis:

Second, appellant claimed that his trial counsel was ineffective for failing to question the arresting police officers regarding the victims' prior inconsistent statements regarding the incident. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Counsel cross-examined the victims regarding their previous statements and challenged their version of events. Appellant failed to demonstrate a reasonable probability of a different outcome had counsel sought to introduce the victims' prior statements through the arresting officers' testimony. Therefore, the district court did not err in denying this claim.

(ECF No. 12-32, at 3-4; Exhibit 82, at 2-3.)

         The state appellate courts' rejection of this claim was neither contrary to nor an objectively unreasonable application of, inter alia, ...


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