                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-1998

Hollman v. Wilson
Precedential or Non-Precedential:

Docket 97-2062




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"Hollman v. Wilson" (1998). 1998 Decisions. Paper 228.
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Filed September 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-2062

CHESTER HOLLMAN,
       Appellant

v.

HARRY E. WILSON, SUPERINTENDENT, RETREAT; THE
DISTRICT ATTORNEY OF THE COUNTY OF
PHILADELPHIA; THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 97-cv-2115)

Argued June 9, 1998

Before: STAPLETON, COWEN, and RENDELL,
Circuit Judges

(Filed: September 11, 1998)

       NORRIS E. GELMAN [ARGUED]
       The Public Ledger Bldg.
       6th & Chestnut Streets
       Philadelphia, PA 19106

       Counsel for Appellant
       DONNA G. ZUCKER [ARGUED]
       Office of the District Attorney
       1421 Arch Street
       Philadelphia, PA 19102-1582

       Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant, Chester Hollman, appeals from the district
court's denial of his habeas petition filed pursuant to 28
U.S.C. S 2254, claiming that a violation of Brady v.
Maryland, 373 U.S. 83 (1963), undermines his murder
conviction. For the reasons discussed below, we will affirm.

Factual Background

On May 4, 1993, a Common Pleas Court jury in
Philadelphia convicted Hollman of second-degree murder,
possession of an instrument of crime, robbery, and criminal
conspiracy for his involvement in the shooting death of Tae
Jung Ho, a graduate student at the University of
Pennsylvania. Ho had been walking with his girlfriend at
22nd and Sansom Streets in Philadelphia in the early
morning of August 20, 1991, when the two were
approached by Hollman and another man, who pushed Ho
to the ground. Hollman restrained Ho by sitting on his legs
while the other assailant shot Ho in the chest; he was killed
instantly. Hollman then robbed Ho and the two men ran
back to their vehicle, a white Chevy Blazer.

The evidence against Hollman included the testimony of
Deirdre Jones who had been traveling with Hollman in the
car that night. She testified that she had been driving
around Center City with Hollman and two other
individuals, a man and a woman. The two men stopped the
car and discussed their plan to rob someone; Jones was
instructed to act as a "lookout." The two men then left the
car. Jones heard a gunshot and the two men jumped back
into the vehicle and sped away. Shortly thereafter, the two

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other passengers exited the car and Hollman and Jones
continued driving.

Two other witnesses near the scene testified that they
heard a gunshot and saw two men jumping into a white
Chevy Blazer which contained two passengers. One
witness, a taxi driver, followed the car and was able to read
the first few letters of the license plate, "YZA" before losing
the car in traffic. The driver reported what he had seen and
gave a description of the vehicle. Shortly thereafter, a
Philadelphia police officer stopped the car driven by
Hollman within blocks of the crime scene. It matched the
taxi driver's description and bore a license plate which
started with the letters "YZA." As the officer questioned and
searched Hollman he observed that Hollman was perspiring
heavily and seemed highly agitated.

At trial, the only eyewitness who claimed to have actually
seen the crime in progress was Andre Dawkins. Dawkins
was standing outside a convenience store across the street
from the crime scene. He testified that he saw Hollman and
another man push Ho to the ground and heard Ho plead
for his life and the life of his girlfriend. Dawkins claimed to
have had a good view of Hollman running back to the car
after the shooting and identified Hollman as the man who
had restrained Ho while the other assailant shot him.

During his interview with the police, Hollman denied
everything. However, when confronted with the statement of
Deirdre Jones, he blurted out, "I told that bitch to keep her
mouth shut, shit." During a search of Hollman's residence,
a .38 caliber revolver was discovered. An expert testified at
trial that the bullet that killed Ho could have come from
that gun.

The jury convicted Hollman of second degree murder,
possession of an instrument of crime, robbery, and criminal
conspiracy.

After the trial, Hollman's counsel learned that, due to an
apparent clerical error, the prosecution had not had, and
thus did not provide him with, a full and accurate report of
Dawkins's criminal history. This error was not detected
until Dawkins was arrested for robbery several months
after the Hollman trial. Dawkins had accidently been given

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two different identification numbers in the police computer
system. The record retrieved by the government and
provided to defense counsel contained a recent arrest for
burglary, a prior arrest under the alias John Johnson, and
several open bench warrants. However, it did not contain
significant aspects of Dawkins's criminal history including
robbery and conspiracy convictions, and a prior conviction
for filing a false report of incriminating evidence with the
authorities.

Hollman moved for a new trial in state court arguing,
inter alia, that the prosecution's failure to turn over this
impeachment evidence constituted a Brady violation. See
Brady v. Maryland, 373 U.S. 83 (1963).1 Hollman
contended that had the information been available during
trial, the credibility of Dawkins could have been impeached
using his prior crimen falsi convictions. The trial court held
a post-trial hearing on the matter and then denied the
motion, sentencing Hollman to life in prison. The Superior
Court rejected the same argument and the Supreme Court
of Pennsylvania denied an allowance of appeal. Hollman
then filed this S 2254 motion in the district court on March
2, 1997. The district court, adopting the opinion of the
Magistrate Judge, denied relief finding that the failure to
produce Dawkins's entire criminal record did not warrant a
new trial under Brady. As the district court granted a
certificate of appealability, we have jurisdiction pursuant to
28 U.S.C. S 2253(a). We likewise deny Hollman's habeas
petition.

Standard of Review

We exercise plenary review over a district court's legal
conclusions made in reviewing a S 2254 petition. See Orban
v. Vaughn, 123 F.3d 727, 729 (3d Cir. 1997), cert. denied,
118 S. Ct. 717 (1998). Because Hollman filed his petition
before the district court on March 24, 1997, it is governed
by the provisions of the Antiterrorism and Effective Death
Penalty Act ("AEDPA") which became effective on April 24,
1996. The AEDPA creates the following standard that
_________________________________________________________________

1. Hollman raised other issues in his state court motions but the appeal
before us focuses on the alleged Brady violation.

                               4
federal courts must apply when reviewing a habeas petition
brought by a state prisoner:

       An application for a writ of habeas corpus on behalf of
       a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme
       Court of the United States, or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the
       evidence presented in the State court proceeding.

28 U.S.C. S 2254(d). The issue raised in Hollman's habeas
petition was clearly adjudicated on the merits in state
court. Because the question before us is one of law we
examine the state court's decision to determine if it was
"contrary to, or involved an unreasonable application of
clearly established federal law." As we find that the state
court's decision on Hollman's petition was not deficient
under this standard, we will deny habeas relief.

We recognize that we have not yet defined the contours
of the new AEDPA standard. See Berryman v. Morton, 100
F.3d 1089, 1103 (3d Cir. 1996) (stating that "we have not
determined the extent of the deference that federal habeas
courts must afford to the legal or the factual determinations
made by state courts").2 However, we need not do so here,
because the Pennsylvania Superior Court did not render a
decision contrary to clearly established federal law under
any reading of the relevant standard.
_________________________________________________________________

2. Cf. O'Brien v. DuBois, 145 F.3d 16 (1st Cir. 1998) (setting forth that
circuit's interpretation of the AEDPA); Green v. French, 143 F.3d 865
(4th Cir. 1998) (same); Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998)
(same); Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied,
117 S. Ct. 1114 (1997) (same).

                                5
State Court's Determination

When the error regarding Dawkins's criminal
identification numbers was discovered, Hollman moved for
a new trial on the basis of the claimed Brady violation and
argued that his counsel had been ineffective in failing to
produce other evidence to impeach Dawkins. The trial court
conducted a post-trial hearing. The court determined that
the failure to produce Dawkins's entire criminal record did
not constitute a Brady violation and that even if defense
counsel had known about the earlier convictions, the result
of the trial would not have been different. The trial court
thus concluded that a new trial was not warranted.
Hollman appealed to the Superior Court which determined
that the mistakenly omitted evidence did not constitute a
Brady violation, that Hollman was not entitled to a new
trial on the basis of after-discovered evidence, and that the
court's charge did not deny Hollman due process.3 The
Supreme Court of Pennsylvania denied an allowance of
appeal on April 1, 1996. As Hollman has exhausted his
state court remedies with respect to the issues raised in
this appeal, we can review his claim brought under S 2254.

Discussion

In Brady, the Supreme Court held that "the suppression
by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is
material either to guilt or punishment." 373 U.S. at 87. A
new trial will be granted for a Brady violation only if the
defendant can demonstrate both that the prosecution
withheld exculpatory evidence, and that the evidence was
material, in that the defendant did not receive a fair trial
because of its absence. See United States v. Pelullo, 105
F.3d 117, 122 (3d Cir. 1997). It is well established that
_________________________________________________________________

3. Although the Superior Court decision that Brady was not violated
rested on an erroneous view that impeachment material cannot
constitute exculpatory evidence under Brady, the particulars of the
reasoning do not affect our ruling because we hold that, in any event,
the state court adjudication did not result in a decision that was
contrary to, or an unreasonable application of, clearly established
federal
law because we, too, find that Brady is not implicated.

                               6
impeachment evidence can constitute exculpatory evidence
under Brady and its progeny and Hollman is correct that
evidence of a government witness's prior criminal history is
evidence which must be produced to the defense. See
United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v.
United States, 405 U.S. 150, 153 (1972).

The law is clear that the prosecution must not "withhold"
impeachment evidence. It is equally clear that the
government is only "obligated to produce certain evidence
actually or constructively in its possession or accessible to
it." United States v. Perdomo, 929 F.2d 967, 970 (3d Cir.
1991).4 Where the prosecutor had no actual or constructive
possession of information, there can be no Brady violation
for failure to disclose it. It is uncontested that the
prosecution did not have actual possession of the full
criminal record of Dawkins. Constructive possession means
that a prosecutor "should . . . have known that the material
at issue was in existence." United States v. Joseph, 996
F.2d 36, 39 (3d Cir. 1993).

In Perdomo, we found a Brady violation where the
government failed to provide the defense with a witness's
criminal history report. 929 F.2d at 971. In that case,
however, the government's search for available information
was deficient in that it failed even to request a criminal
history report from the Virgin Islands. Id. It was the
government's failure to seek "information readily available
to it" which prompted the court to find that the first prong
of Brady had been violated. Id. Thus, we, along with several
other circuits have imposed upon the prosecution a duty to
search accessible files to find requested exculpatory
material. See United States v. Brooks, 966 F.2d 1500, 1502-
03 (D.C. Cir. 1992); Carey v. Duckworth, 738 F.2d 875, 878
_________________________________________________________________

4. By discussing Third Circuit caselaw construing Brady we are not
concluding that it is necessarily pertinent, let alone controlling, in
applying the standard under the AEDPA. There are conflicting views
among the courts of appeals referenced above as to the relevance and
weight of precedents established by courts other than the Supreme
Court in applying the AEDPA, and we have yet to explore this issue.
However, Perdomo is useful to demonstrate that even our court of
appeals, in applying Brady, has not ventured from the concept that it is
available and accessible information that must be disclosed.

                               7
(7th Cir. 1984); United States v. Auten, 632 F.2d 478, 481
(5th Cir. 1980). As one court has noted, the duty rests on
the notion that "government failure to turn over an easily
turned rock is essentially as offensive as one based on
government non-disclosure." Brooks, 966 F.2d at 1503. The
duty to search discourages the government from
intentionally keeping itself ignorant of information useful to
the defense. See Carey, 738 F.2d at 878. However, where
the government has diligently searched, no Brady violation
will be found. See United States v. Young, 20 F.3d 758, 764
(7th Cir. 1994) (declining to find Brady violation where
government diligently searched national and localfiles for
information about witness's criminal history but failed to
search records of other states).

Here we cannot say that the prosecutor should have-- or
even could have -- known about, or searched for, the
clerical error which resulted in Andre Dawkins being given
two different criminal identification numbers. The cause of
the failure is characterized by the parties as an
administrative mistake. Without some record evidence that
it was something more than a mistake, we cannot conclude
that the government withheld information that was readily
available to it or constructively in its possession.
Accordingly, we find that the government did not withhold
Dawkins's full criminal history and that the failure of the
government to produce this material does not constitute a
Brady violation.

We note that Hollman is really arguing that we expand
the scope of what constitutes Brady material, since he does
not dwell on the issue of accessibility, but focuses, rather,
on his view that the defendants' proceeding to trial without
this type of information simply should constitute a violation
of Brady. We have little difficulty rejecting this argument as
it clearly entails extending Brady beyond the scope of any
federal case precedent.

Even if we were to view the prosecution's failure to
retrieve Dawkins's complete record as a violation of Brady,
he would not be entitled to a new trial unless we
determined that the favorable evidence was "material" in
that Hollman did not receive a fair trial because of the
absence of that evidence. See Pelullo, 105 F.3d at 122

                               8
(citations omitted). A fair trial is one deemed worthy of
confidence. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The defendant must show that "the favorable evidence
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict."
Id. at 435. The question here is whether Dawkins's crimen
falsi convictions are material, that is, whether there is a
reasonable probability that disclosure of his criminal record
would have led to a different result at trial. Id. at 432-42.

Hollman asserts that the absence of a record of
Dawkins's prior crimen falsi convictions was material and
deprived him of a fair trial in three ways. First, Dawkins
was able to perjure himself with impunity regarding his
criminal history; second, the government relied on
Dawkins's credibility in its closing; and third, the jury
instructions given by the trial judge somehow buttressed
the credibility of Dawkins's testimony. Like the district
court, we disagree.

It should be noted at the outset that Dawkins's credibility
was impeached repeatedly during the trial. The cross-
examination of Dawkins focused on inconsistencies in his
statements to the police and in his trial testimony.5 During
his cross-examination, defense counsel established that
Dawkins had an extensive history of conflict with law
enforcement which he blamed on police harassment. The
jury was made aware of the fact that Dawkins had a
criminal record.6 In addition, Dawkins admitted that bench
_________________________________________________________________

5. Dawkins admitted that when questioned by the police he had initially
denied seeing the murder and lied in his statement to the police because
he "didn't want to get involved." App. at 1359-62. He also admitted that
he did not reveal his address to police officers but claimed to be living
on the streets because he feared he would be considered a "snitch" for
reporting what he saw. App. at 1337.

6. Defense counsel questioned Dawkins about his most recent burglary
arrest, about his prior conviction for theft and on his use of an alias in
connection with that arrest. He denied his involvement in the burglary
and his use of an alias but admitted, "I have summaries. I have a
burglary. I ain't been a saint all of my life." App. at 1267.

                                9
warrants had been issued for him in several "summary
cases." App. at 1255.7

When Dawkins was questioned about his most recent
arrest for burglary, he denied that he had committed the
crime and complained of extensive harassment by the
police. However, the arresting officer testified that at the
time of his arrest Dawkins admitted to having committed
the burglary and that he was able to describe the items
removed from the apartment. App. at 1557-58. In addition,
the detective told the jury that Dawkins asked for help in
dealing with his crack cocaine addiction. App. at 1559.
During his testimony, Dawkins had stated that he hadn't
used drugs for years. App. at 1286.

Further, Dawkins admitted at trial that he had a history
of mental problems. Specifically, Dawkins testified that he
had spent seven months in a state mental institution
because he "didn't know who [he] was." App. at 1285. He
also stated that he was no longer taking his psychiatric
medication and had not been taking the medication at the
time he observed Ho's murder. App. at 1286. We conclude
that the additional impeachment material contained in the
complete criminal record would have been merely
cumulative. We find that even had defense counsel been
provided with Dawkins's crimen falsi convictions, the
additional impeachment evidence would not have put the
whole case in such a different light as to undermine our
confidence in the verdict.

Hollman contends that the harm created by the
purported Brady violation was exacerbated because
Dawkins escaped challenge for his perjury on the stand.8 It
_________________________________________________________________

7. In response to a question about outstanding bench warrants Dawkins
replied,

       I had summary bench warrants. It's from the case I got a little --
it
       used to haunt me. I used to dream about it so much that I had an
       attitude constantly, so much of an attitude that if someone said
       something to me, I would tell them off. They would not leave me
       alone. They still don't leave me alone. . . . And I told off many a
       police officer, many a people, and they locked me up.

App. at 1255-56.

8. This perjury consisted of three instances where Dawkins denied
having a criminal record. App. at 1267; 1268; 1272.

                               10
is true that Dawkins perjured himself by not revealing that
he did have a criminal record but this does not give rise to
separate rights under Brady. Further, we note that had all
the parties had Dawkins's full criminal history, it is
unlikely that he would have testified that he had no record.
Rather, it appears that Dawkins was attempting to benefit
from the clerical error which seemingly purged a portion of
his criminal past.

Hollman's contention that the government, in its closing
argument, relied on the credibility of Dawkins is similarly
flawed. App. at 1686; 1689-90.9 To the contrary, the
prosecutor did not place undue reliance on the credibility of
Dawkins and, seemingly realizing his questionable
credibility, advised the jury that there was sufficient
evidence to convict Hollman without the testimony of
Dawkins. App. at 1679. Finally, Hollman's argument that
the jury instructions invited the jury to rely on the
testimony of Dawkins is without merit. The trial judge gave
standard jury instructions that would have been unaffected
if Dawkins had been impeached using his crimen falsi
convictions.

The record as a whole lends further support to the
conclusion that there was sufficient evidence to convict
Hollman without the testimony of Dawkins. Compelling
evidence was provided by Deirdre Jones who was traveling
in the car with Hollman that night. While the trial court
properly instructed that her testimony was subject to
scrutiny as a "corrupt and polluted source," her version of
the events was corroborated by the other witnesses in the
case. For example, two witnesses heard the shooting, saw
two men fleeing, and supplied information about the white
_________________________________________________________________

9. In the two passages cited by Hollman, the prosecutor asked the jury
to decide if Dawkins was "shaken" on the stand. However, the passages,
read in their entirety reveal that the prosecutor recognized that his
witness was flawed. First, the prosecutor stated:"No, I won't apologize
for Andre Dawkins because there's dignity in everything. I submit to you
that you saw him on the stand. Was he articulate? Was he shaken on
cross-examination?" App. at 1686. Later, he asked, "I say to you, in the
examination of Andre Dawkins, was he shaken? And do you think less
of Andre Dawkins because of what a detective said that had nothing to
do with nothing? If so, it's your decision." App. at 1690.

                               11
vehicle. One was able to note that the license plate started
with "YZA." Shortly after the crime, and within blocks of the
crime scene, a police officer stopped Hollman driving a
vehicle matching this description. The officer testified as to
Hollman's anxious demeanor upon being searched. Upon
being informed that Jones had provided a statement,
Hollman exclaimed, "I told that bitch to keep her mouth
shut, shit." Finally, the bullet which killed Ho came from a
.38 caliber gun. A .38 caliber gun was found in Hollman's
apartment.

Thus, we conclude that the Superior Court's decision
that the failure of the government to provide the full
criminal history of Andre Dawkins did not constitute a
violation of Hollman's rights under Brady was not a
decision that was contrary to or an unreasonable
application of federal law.

For the foregoing reasons, we will affirm the district
court's order of November 25, 1997, denying Hollman's
petition for habeas corpus.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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