USA v. Hollis

Filing 240

Order, Set/Reset Motion and R&R Deadlines/Hearings

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
ARTHUR LEON HOLLIS,
Defendant.

3:04-cr-140-HRH-JDR
ORDER
REGARDING
MOTION FOR ADDITIONAL
EVIDENTIARY HEARING
(Docket No. 234)

In this habeas proceedings Hollis argues that his counsel was
ineffective by not seeking exculpatory impeachment material in the form of prior
illegal conduct by the informant and by not requesting a Franks hearing to challenge
the veracity or representations by the affiant for the search warrant for the address
on North Hoyt. These claims are fairly raised in the amended § 2255 motion, but
Hollis now seeks discovery to learn whether such efforts by trial counsel might have
been successful. The government opposes the defendant's request for a hearing as

outlined in its supplemental briefing at Docket 186, noting that the time for seeking
a new trial based on newly discovered evidence pursuant to Federal Criminal Rule
33(a)(1) has expired.
Rule 6 of the Rules Governing Section 2254 Cases leaves discovery to
the discretion of the court. Rule 6(a) provides that a habeas petitioner is entitled to
discovery “if, and to the extent that, the judge in the exercise of his discretion and for
good cause shown grants leave to do so, but not otherwise.” Rule 6(a). Pham v.
Terhune, 400 F.3d 740 (9th Cir. 2005).

In this request Hollis is arguing that if

counsel had had more information they could have asked additional impeachment
questions of Ward or sought to impeach the search warrant affiant. The test for
ineffective assistance of counsel at issue is not what trial counsel could do in a retrial
or with additional information but rather whether what counsel did do or failed to do
at the time constitutes ineffective assistance of counsel. Hollis is free to argue that
his counsel should have done more by asking impeachment questions or filing a
Franks motion but he cannot change the circumstances of what was known or
reasonably known to trial counsel by requesting additional discovery from the
government.
The defendant suggests the law officers might have created reports
specifically addressing Ward's criminal activities while acting as an informant in this
case. The defendant's argument is full of hypotheticals. For example, he argues,

04-cr-140-HRH-JDR HOLLIS ORDER re Request to present final argument on 2255 Motion to Vacate_mtd.wpd

2

"if" Jencks Act material had shown that Ward was a source of drugs for buys
involving a different informant in April 2003, those events might be relevant in
impeachment of Ward at trial. Hollis argues that "if" statements by testifying officers
at trial indicated that surveillance of Hollis to the actual North Hoyt apartment was
not done as stated in the affidavit in support of the search warrant, or "if" Officer
Kennedy did not trust Mr. Ward contrary to his statement in his affidavit, or "if"
Officer Kennedy knew that Ward did not provide accurate information about other
prior investigations, then trial counsel should have raised a Franks v. Delaware
issue. It is undisputed that Hollis's trial counsel did not receive written reports of
such monitored buys nor did they file any motion to obtain such material. The record
shows that Butler was on notice of Ward's extensive drug dealing activities and
reports of said activities being in existence. Whether Butler rendered ineffective
assistance of counsel by not filing a motion to suppress, moving to compel, or file a
motion for mistrial remain issues in this § 2255 proceeding. However, the motion to
vacate is not a springboard for counsel to extend pretrial discovery in the hope of
discovering some new error to attack the constitutionality of his trial.
Hollis has not made a specific factual showing for discovery about how
Ward was debriefed after Hollis’s arraignment. Such a probe is designed to learn
whether or not undisclosed Brady material existed. A violation of the government's
Brady obligations of course, would be a serious matter. But that issue is not before

04-cr-140-HRH-JDR HOLLIS ORDER re Request to present final argument on 2255 Motion to Vacate_mtd.wpd

3

the court. Rather the issue presented is "couched . . . as failure to file motions to
compel Brady material.” Evidentiary Hearing, Tr. 227. Mr. Dewey recognized that
a Brady violation by the government is a separate issue than what is presented in
the petition. Id. Tr. pp. 226-227.
Hollis argues that in order to "successfully" claim that Butler was
ineffective for not moving to compel Brady material, "he first needs to establish that
such information exists." Docket 234, p.7. At the evidentiary hearing Hollis had an
opportunity to examine under oath his trial counsel concerning what materials were
or were not provided to them. Counsel for Hollis examined these attorneys as to
what Jencks Act material was disclosed before or during trial concerning the reports
of Ward's activities in drug dealing in 2003 and 2004. Mr. Butler had a copy of
Officer Kennedy's search warrant affidavit at trial and could have filed a Franks
motion to suppress during trial if he had wanted to do so. The assessment of
whether it was constitutionally ineffective for him not to do so is not dependent upon
what counsel can learn from additional investigation.
For the foregoing reasons the defendant's request for an additional
evidentiary hearing to secure discovery or Brady material as set forth in his
supplemental briefing at Docket 234 is hereby DENIED. The defendant’s request
for an opportunity to present a final argument on the motion to vacate (See Docket
234, p.2.) is GRANTED. The defendant may submit his summation in written form

04-cr-140-HRH-JDR HOLLIS ORDER re Request to present final argument on 2255 Motion to Vacate_mtd.wpd

4

no later than May 23, 2010. The government shall have until June 23, 2010 to
submit its written summation in response. The defendant's reply, if any, is due
July 9, 2010
DATED this 19th day of April, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

04-cr-140-HRH-JDR HOLLIS ORDER re Request to present final argument on 2255 Motion to Vacate_mtd.wpd

5