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

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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
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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 postconviction 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 postconviction 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 postconviction 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.

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ROGER A. PAGE, JUDGE