        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 1, 2015 Session


               WILLIS HOLLOWAY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                         No. 0901388   Lee V. Coffee, Judge




               No. W2014-02444-CCA-R3-PC - Filed October 16, 2015
                        _____________________________

Petitioner, Willis Holloway, was convicted of two counts of aggravated robbery, two
counts of aggravated kidnapping, and one count of aggravated burglary. He was
sentenced to 135 years, and this court affirmed the judgments against him on direct
appeal. Petitioner filed a petition for post-conviction relief, which was denied by the
post-conviction court after an evidentiary hearing. On appeal, petitioner has abandoned
his original claims for post-conviction relief and now argues that he should be granted a
new trial because his trial counsel passed away prior to his post-conviction hearing. He
also contends that his constitutional rights were violated by the trial court‟s assignment to
hear the post-conviction proceeding. Following our review, we affirm the judgment of
the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Charles E. Waldman, Memphis, Tennessee, for the Appellant, Willis Holloway.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Anita Spinetta and Samuel David
Winnig, Assistant District Attorneys General, for the Appellee, State of Tennessee.




                                        OPINION
       Because neither the facts from petitioner‟s trial nor those from his post-conviction
hearing are at issue in this appeal, we will only briefly summarize the background of this
case. Petitioner was convicted along with his co-defendant, Charles Jackson, for two
counts of aggravated robbery, two counts of aggravated kidnapping, and one count of
aggravated burglary, based on their conduct in invading the home of octogenarians
Clarence and Nadine Powers. See State v. Charles Jackson and Willis Holloway, No.
W2010-01133-CCA-R3-CD, 2012 WL 543047, at *1-2 (Tenn. Crim. App. Feb. 17,
2012), perm. app. denied (Tenn. June 22, 2012). The men duct-taped the couple,
ransacked their home, and made away with a safe containing $8,000, as well as other
property. Id. The victims testified that the men used guns during the home invasion. Id.
Two women also participated in the crimes, and those women testified against petitioner
and Jackson at their joint trial. Id. at *3-4.

       After losing his appeal, petitioner filed a petition for post-conviction relief in
which he alleged ineffective assistance of counsel at trial and on appeal. The trial court
held an evidentiary hearing at which petitioner‟s appellate counsel, co-defendant
Jackson‟s trial counsel, petitioner, and a potential witness to the crimes testified.
Petitioner‟s trial counsel was absent, having passed away prior to the post-conviction
proceedings. The post-conviction court denied relief, and petitioner now appeals.

                                I. Confrontation Clause Claim

        Petitioner claims that he was denied his constitutional right to confront his trial
counsel at his post-conviction hearing and that he should receive a new trial as a remedy
for this denial.1 Our supreme court has explained that

       [t]he Confrontation Clause of the Sixth Amendment to the United States
       Constitution, made applicable to the States by the Fourteenth Amendment .
       . . directs that “[i]n all criminal prosecutions, the accused shall enjoy the
       right . . . to be confronted with the witnesses against him.” U.S. Const.
       amend. VI. Article I, section 9 of the Tennessee Constitution similarly
       provides “[t]hat in all criminal prosecutions, the accused hath the right . . .
       to meet the witnesses face to face.” Tenn. Const. art. I, § 9.

State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014), cert. denied, 135 S. Ct. 1535, 191 L. Ed.
2d 565 (2015). “[T]he principal evil at which the Confrontation Clause was directed was

       1
           The State, on appeal, has not argued that petitioner waived this issue for failure to
include it in his post-conviction petition. Petitioner argued the issue before the post-conviction
court, but the post-conviction court considered the issue waived. Because petitioner presented
the issue below, albeit improperly, we will consider the merits of his argument.
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the civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Crawford v. Washington, 541 U.S. 36,
50 (2004). “The Confrontation Clause is designed „to ensure the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact.”‟ State v. McCoy, 459 S.W.3d 1, 13
(Tenn. 2014) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). The United States
Supreme Court has described the right to confrontation as a “trial right.” See Barber v.
Page, 390 U.S. 719, 725 (1968) (stating that “[t]he right to confrontation is basically a
trial right” and did not apply to a preliminary hearing).

        Whether the Confrontation Clause applies to post-conviction proceedings appears
to be a matter of first impression in Tennessee. Post-conviction proceedings are not
criminal prosecutions but instead “are best described as proceedings arising out of a
criminal case.” Carter v. Bell, 279 S.W.3d 560, 565 (Tenn. 2009). In addition, “the
opportunity to collaterally attack constitutional violations occurring during the conviction
process is not a fundamental right entitled to heightened due process protection.”
Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992). Petitioners in post-conviction
proceedings are not accorded the “full panoply” of constitutional rights; instead, “[a]ll
that due process requires in the post-conviction setting is that the defendant have the
opportunity to be heard at a meaningful time and in a meaningful manner.” Stokes v.
State, 146 S.W.3d 56, 60-61 (Tenn. 2004) (internal quotation marks and citations
omitted). Our supreme court has ruled that petitioners do not, for example, have the
constitutional right to effective assistance of counsel during post-conviction proceedings.
Id. at 60. The First Circuit Court of Appeals has held that a petitioner is not entitled to be
present at his own post-conviction proceedings because the Confrontation Clause does
not apply to state post-conviction proceedings. Oken v. Warden, MSP, 233 F.3d 86, 93
(1st Cir. 2000).

        In our view, logic dictates that the Confrontation Clause does not apply to post-
conviction proceedings under the circumstances in this case, when petitioner claims that
his trial counsel‟s absence (due to her untimely passing) prevented him from examining
her about whether her counsel was effective. As stated previously, the Confrontation
Clause specifically applies to criminal prosecutions and gives a citizen the right to
confront his or her accusers. A post-conviction proceeding is not a criminal prosecution,
and trial counsel was in no way an “accuser.” If anything, a petitioner is the accuser in a
post-conviction proceeding. Moreover, petitioner was given a full and fair opportunity to
present his post-conviction case through testimony of other witnesses familiar with the
proceedings. Therefore, we conclude that his trial counsel‟s absence at the post-
conviction hearing does not require that we grant petitioner a new trial or any other relief
based upon a denial of the right of confrontation at the post-conviction hearing.


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                  II. Trial Court‟s Recusal (Petitioner‟s Issue II and III)

        Petitioner argues that his constitutional rights under the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 9 of the Tennessee
Constitution were violated when the judge who presided over the jury trial in this matter
was assigned to be the post-conviction court presiding over his petition for post-
conviction relief. He contends that the post-conviction court was not impartial because
this court found harmless error in its actions as trial court and because the standard of
proof is lower in post-conviction proceedings (an argument that appears to be a non
sequitur). Petitioner also argues that this court should review his claim despite his not
having presented it below because “asking [the] Trial Court, in its role as Post-Conviction
Court, to address the constitutionality of its review of its own decisions simply
compounds the issue.” The State responds that petitioner has waived this argument by
failing to request the court‟s recusal prior to the proceedings. We agree with the State.

        Tennessee Supreme Court Rule 10B, section 1.01, states that “[a]ny party seeking
disqualification, recusal, or a determination of constitutional or statutory incompetence of
a judge of a court of record, or a judge acting as a court of record, shall do so by a timely
filed written motion.” No such motion was filed in this case; thus, the post-conviction
court was never given the opportunity to rule on the issue. Therefore, petitioner has
waived his argument in this regard. See Tenn. R. App. P. 36(a) (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”). Petitioner urges this court to use its “discretionary consideration” to
consider this issue, but we decline his invitation. Moreover, it is not a “constitutional
deprivation” for the judge who presided over a petitioner‟s trial to also preside over his
post-conviction proceeding. State v. Garrard, 693 S.W.2d 921, 922 (Tenn. Crim. App.
1985) (“The Post-Conviction Procedure Act is a wholly statutory procedure. The
designation of a hearing judge is purely an administrative function and nothing more.
There was no constitutional deprivation.”) Petitioner is without relief.

                                      CONCLUSION

       Based on the arguments of the parties, the applicable law, and the record, we
affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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