1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Hollman v. Wilson" (1998). 1998 Decisions. Paper 228.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/228
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. 

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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). 

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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. 

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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 

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(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 crossexamination 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. 

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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.

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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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