Hollman v. Woods

Filing 9

OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus and Granting in Part a Certificate of Appealability. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Lashon Terrel Hollman,
Petitioner,
v.

Case 16-cv-13057
Judith E. Levy
United States District Judge

Jeffrey Woods,
Mag. Judge David R. Grand
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS [1] AND GRANTING IN PART A
CERTIFICATE OF APPEALABILITY
Petitioner Lashon Terrel Hollman filed a petition for the writ of
habeas corpus under 28 U.S.C. § 2254. He challenges his convictions for
first-degree murder, torture, and carrying a dangerous weapon with
unlawful intent. Hollman raises three claims in his petition: (1) it was
objectively unreasonable for the state courts to conclude that his
involuntary statement to the police did not contribute to his convictions,
(2) his confrontation rights were violated by the state’s failure to produce
Quamay Henne for trial and by the admission of Henne’s prior testimony,

and (3) his trial attorney was ineffective for not objecting to the failure to
produce Henne at trial.
I.

Background
Hollman was charged in Saginaw County, Michigan, with

premeditated murder, Mich. Comp. Laws § 750.316(1)(a); felony
murder, § 750.316(1)(b); torture, Mich. Comp. Laws § 750.85; and
carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws
§ 750.226. (Dkt. 6-18 at 1.) The Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are presumed
correct on habeas review. 28 U.S.C. § 2254(e)(1); see Wagner v. Smith,
581 F.3d 410, 413 (6th Cir. 2009).
Sometime between January 31 and February 2, 2012,
Cassandra Nelson was killed in her apartment. She was
stabbed 54 times in the back and neck. Her body also had
slicing wounds on one cheek and on the hands. Nelson
appeared to have been struck on the head with a television.
Defendant [Hollman] lived with his mother next door to
Nelson and had gone with Nelson on January 30, 2012, when
Nelson purchased a new smart phone with a slide-out keypad.
Later that day, defendant’s friend, Quamay Henne, witnessed
defendant purchase a handful of Xanax pills from a woman
who came to defendant’s house. Afterward, Henne’s
girlfriend, Candice Parish, and her mother, Cynthia Parish,
gave Henne and defendant a ride to Cynthia’s apartment.
Both Henne and defendant were high and drunk. Cynthia told
2

Candice that the two men had to leave. Cynthia drove
defendant to his house around midnight.
Shortly after midnight and before 1:00 a.m. on the
morning of Tuesday, January 31, Nelson told her friend,
Margaret Torres, that she needed $20 to help an acquaintance
avoid going to prison.1 Torres refused. Around noon, Torres
sent Nelson a text message and received no response. Torres
attempted to call Nelson at 8:00 p.m. that evening and
received a recorded message that the phone was either turned
off or the number had been changed.
That same evening, defendant, Henne, Candice, and
Cynthia, gathered at Cynthia’s home. Cynthia stated that
defendant “looked like he saw a ghost.” Defendant privately
told Henne that he had “got into it with somebody or whatever
and I did some bullshit.” Henne testified, “He told me that
umm—that shit—he went to umm this chick house the chick
was all drunk or high or some shit, started chasing him
through the house, shit and he turned around, shit stabbed or
something, whatever he said.” Henne then indicated that
defendant told him that he “stabbed the shit out of her.” After
this conversation, Cynthia overheard them talking about
someone being killed. Also, Henne and Candice noticed that
defendant had a cell phone with a slide-out key pad. When
they saw him with it, defendant said that he “shouldn’t have
it,” and that he should take the battery out. Candice also
testified that defendant showed her scratches on his arm and
told her he had gotten into a fight with a girl the night before.

Defendant had outstanding fines in Isabella County and went to
pay them on Wednesday, February 1, 2012. Defendant was on probation
at the time. The prosecution’s theory was that defendant had asked
Nelson for the money to pay these fines to avoid violating the terms of
his probation.
1

3

Torres continued trying to contact Nelson and went to
Nelson’s apartment to check on her on Thursday, February 2,
2012. She knew Nelson took Xanax for seizures and was
concerned that she might have had a seizure and been
injured.2 When Nelson did not respond, Torres called the
police. Officers then discovered Nelson’s body face down,
clothed only from the waist up, with a large amount of blood
around her. They also observed a television on the floor close
to her head. Investigators found pillows, quilts, and a stuffed
animal in Nelson’s bedroom soaked with blood, indicating that
Nelson had been lying on top of these items bleeding for some
time. Investigators also observed “impact splatter” on the
bedroom walls, indicating that a bloody object had been struck
with some amount of force. Investigators discovered several
bloody footprints, which were later identified as prints from a
Nike “Swoosh” sneaker.3 Investigators discovered a
breadknife and a black-handled steak knife both covered in
blood. A single Budweiser beer can was also found at the
scene. Investigators could not locate Nelson’s cell phone, her
Bridge Card, or any Xanax pills in her apartment. Later DNA
testing revealed that defendant was the sole source of DNA
on the beer can and a likely source of male DNA on the handle
of the breadknife. The DNA of Lionell Beckom, the other
primary suspect in the case, was not found on any of the items
tested by the crime lab.

Joe Grigg, an investigator with the Saginaw County prosecutor’s
office, later confirmed through an electronic database that Nelson had
been prescribed Xanax and that she had last had her prescription filled
on January 24, 2012.
2

The prints matched the size and style of shoes later discovered
in defendant’s house, but forensic analyst David Bicigo stated that the
shoes found in defendant’s house had different “mold characteristics”
and so were likely not the same shoes that made the impressions.
3

4

Detectives Joseph Grigg and Ryan Oberle interviewed
defendant on February 6, 2012, and asked him to come back
the next day. Defendant did not appear for his second
interview. When Cynthia Parish heard that Nelson had been
killed, she called the police and told them about the
conversation she had overheard. Cynthia, Candice, and
Henne gave statements to the police on February 7, 2012.
Based on these statements, and the fact that defendant had
not showed up for his second interview, defendant was located
and brought to the police station for questioning.
At the beginning of the second interview, defendant was
given his Miranda warnings and agreed to waive them and
talk to the police. After the detectives told defendant that they
knew he had killed Nelson, defendant stated, “I didn’t do
nothin’. No I did not, I want a lawyer. I really do, I want a
lawyer, because you just told me what I did and I didn’t do
nothin’. I want a lawyer.” The detectives then began
photographing defendant’s hands and defendant voluntarily
told the detectives about his various injuries. Detective Grigg
then said, “Lashon, you asked for an attorney and that’s fine,
you can get an attorney. If you don’t wanna talk to us
anymore, that’s fine.” Defendant responded, “but I told you I
wanted to go home, you’re telling me I did something that I
didn’t do.” Detective Grigg then stated, “Well you know, you
told [Quamay Henne] what you did,” and “You even told the
girl how you got the scratches.” Defendant denied this, and
Detective Grigg asked, “So they’re lying?” Detective Grigg
then stated, “LaShon, this is—this is the way it is. If you want
an attorney and you wanna tell me that you’re done talkin’ to
me right now, I’m gonna walk out that room, that’s fine . . . .
But, I’m gonna tell you this, [Henne] came down here and he
told us what you told him.” Detective Grigg told defendant,
“you said, ‘Quamay man, I fucked up. I killed that girl. I
stabbed her.’ Exactly what you told him.” Defendant denied
saying this, and Detective Grigg began questioning defendant
5

about whether Henne was with defendant “when it
happened.”
The questioning continued, and the detectives
eventually informed defendant that he was not going to be
released and that he would go to jail after the interrogation
was over. Defendant asked, “How can I go to jail?” to which
Detective Oberle responded, “LaShon, because you haven’t
been honest with me . . . .” Defendant asked how long he would
“have to sit in jail, pending for the investigation,” and
Detective Grigg answered, “Might be tonight, might be
tomorrow, might be the rest of your life.” The detectives began
handcuffing defendant and defendant said, “He said I could
finish talking to him.” Detective Grigg then said, “What, you
don’t want a lawyer now?” Defendant stated, “Can I please
call my mom right now, I’ll keep talking to you, I don’t want a
lawyer, I’ll keep talking to you. I will keep talking to you, can
you please just let me call my mom right now?”
Detective Oberle then told defendant that he was “100%
positive” that defendant had killed Nelson and he only wanted
to find out how it happened. Detective Oberle told defendant
that he “had nothing to lose by telling the truth” and that he
was “not tricking” defendant. Detective Oberle continued
questioning defendant, and eventually defendant stated that
he was at Nelson’s apartment when she was killed. Defendant
denied involvement in the murder, and stated that Lionell
Beckom was the person who stabbed Nelson.
(Dkt. 6-18 at 1–4 (footnotes in original and footnote four omitted).)
According to the transcripts of Hollman’s interview with Detectives
Grigg and Oberle, Hollman stated that he and “LB” were at the victim’s
house on the night in question and that he went home for about fifteen
6

minutes to get some cigarettes. (Dkt. 6-2 at 114–16.) When he returned
to the victim’s home, he saw “LB” with a knife and the victim lying on the
floor. (Id. at 116.) Then LB ran away with a trash bag (id. at 120), and
Hollman held the victim until she passed away. (Id. at 115–16.) He
claimed that he did not call the police because he was afraid of being
implicated in the murder. (See id. at 115, 117.)
At trial,
[d]efendant moved to suppress his statements, arguing
that the police continued to interrogate him after he
unequivocally requested a lawyer, in violation of his
constitutional rights under Edwards v. Arizona, 451 U.S. 477,
101 S Ct 1880, 68 L Ed 378 (1981). The trial court suppressed
a portion of the February 6, 2012 interview and a portion of
the February 8, 2012 interview. It reasoned that the
statements made after defendant stated that “he does not
want a lawyer and will keep talking” should not be suppressed
because they were made after waiving his right to an
attorney. In closing argument, the prosecution argued that
defendant’s story was a fabrication and that the more
reasonable explanation was that defendant himself had killed
Nelson.
(Dkt. 6-18 at 4.) And in the defense’s closing argument, Hollman’s defense
was that, at most, he was merely present during the incident and that
Henne could have committed the crime. (E.g., Dkt. 6-15 at 21.)

7

The jury found Hollman guilty on all counts, and he was sentenced
to concurrent terms of life imprisonment for the murder conviction,
twenty-five to thirty-five years in prison for the torture conviction, and
three to five years in prison for the weapons conviction. (Dkt. 6-18 at 1,
13.) The trial court merged the two life sentences for the single murder,
noting that the conviction was for one count of first-degree murder,
supported by two theories: premeditated murder and felony murder.
(Dkt. 6-17 at 5; Dkt. 6-18 at 13.)
Hollman appealed his convictions, raising the same claims that he
presents in his habeas petition, and the Michigan Court of Appeals
adjudicated those claims on the merits and affirmed his convictions. (Dkt.
6-18 at 1, 7, 9–10.) On May 28, 2015, the Michigan Supreme Court
summarily denied leave to appeal. People v. Hollman, 497 Mich. 1028
(2015). On August 23, 2016, he filed his habeas petition corpus petition
through counsel. (Dkt. 1.)
II.

Legal Standard
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)

limits the authority of a district court to grant habeas relief on a claim
that was adjudicated on the merits by the state courts. See § 2254(d). A §
8

2254 petition may only be granted if the state-court adjudication was
“contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States,” § 2254(d)(1), or the state-court adjudication “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,” §
2254(d)(2).
Under § 2254(d)(1), a state-court decision is “contrary to” clearly
established law “if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law, or if the state court
decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts.” Moore v. Mitchell, 708 F.3d 760, 774
(6th Cir. 2013) (citing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)).
And a state court’s decision is an unreasonable application of
federal law “where ‘the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the [petitioner’s] case.’” Carter v. Bogan, 900
F.3d 754, 767 (6th Cir. 2018) (alteration in original) (quoting Williams,
529 U.S. at 413). An “unreasonable application” under § 2254(d)(1) is
9

more than incorrect; it must be “objectively unreasonable,” id. at 768
(citing Renico v. Lett, 559 U.S. 766, 773 (2010)), meaning “the state
court’s ruling . . . was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility
for fairminded disagreement,” id. (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). A § 2254 petition should be denied if it is within the
“realm of possibility that a fairminded jurist” could find the state-court
decision was reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016).
III. Analysis
A. Petitioner’s Custodial Statements
Hollman raises two challenges regarding the state court’s
treatment of his statements made in custody. First, he alleges that the
state court’s determination that the jury verdict could stand because the
admission of Hollman’s statements was harmless error, even though the
admission of the statements violated his right to counsel, was objectively
unreasonable. (Dkt. 1 at 2–3.) Second, Hollman argues that the state
court made an objectively unreasonable factual determination that he
confessed to being present during the murder. (Dkt. 1-1 at 29–30.)
10

Hollman does not show that either the state-court adjudication or factual
finding was unreasonable.
i. Harmless Error
As a preliminary matter, the Michigan Court of Appeals’
determination that the state trial court’s error was harmless is at issue
here. The court concluded that the detectives violated Hollman’s
constitutional rights by continuing to interrogate him after he
unequivocally requested counsel, that he did not make an effective postassertion waiver of his right to counsel, and that the state trial court
erred in not suppressing all of Hollman’s statements after he requested
counsel. (Dkt 6-18 at 5–7.) However, the Michigan Court of Appeals went
on to find the error was harmless given the other evidence against
Hollman. (Id. at 7.) Therefore, this is the focus of the Court’s habeas
review under § 2254(d)(1).
On habeas review, harmless error is analyzed under Brecht v.
Abrahamson, 507 U.S. 619 (1993), which requires the constitutional
“violation to have a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’” McCarley v. Kelly, 801 F.3d 652, 665 (6th
Cir. 2015) (quoting Brecht, 507 U.S. at 637); Fry v. Pliler, 551 U.S. 112,
11

121–22 (2007). To find a violation had a substantial and injurious effect,
a federal court must “assess the prejudicial impact of constitutional error
in a state-court criminal trial.” Fry, 551 U.S. 121. “The inquiry cannot be
merely whether there was enough to support the result, apart from the
phase affected by the error. It is . . . whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.” McCarley, 801 F.3d at 665 (emphasis in original) (quoting
O’Neal v. McAninch, 513 U.S. 438, 436 (1995)).
Here, Hollman does not meet the Brecht standard for two reasons.
First, the statements were not improperly treated as a confession, which
have powerful probative value, see Arizona v. Fulminante, 499 U.S. 279,
296 (1991) (holding that confessions to crimes are “the most probative
and damaging evidence that can be admitted against [a defendant]”
(quoting Cruz v. New York, 481 U.S. 186, 195 (1987)). At most, the
statements were a confession to being at the scene of the crime because
Hollman expressly denied murdering Nelson. A confession to merely
being at the scene of the crime is not afforded the same probative value
as a confession to committing the crime.

12

Second, there was ample circumstantial evidence supporting the
same conclusions that Hollman’s statements supported: that he was at
the scene of the crime the night Nelson was murdered and he lied about
his involvement in the incident. Hollman’s DNA on the beer can, the DNA
on the knife,1 Parish’s testimony that she dropped him off that night at
home, the scratches on his arm that he attributed to fighting with a girl,
and the phone call Torres received from Nelson regarding a man needing
money to pay fines and Hollman’s county records showing he had unpaid
fines all suggest that Hollman was at the scene of the crime that night.
And there is other evidence that Hollman lied about his involvement in
the murder—he lied to Torres. Torres testified that she asked him if he
had seen Nelson recently, and he said he had not seen her in months.
(Dkt. 6-11 at 17.) In fact, he was observed with the victim in the cell
phone store on the day before the murder. (Dkt. 6-13 at 26.)
Moreover, there was evidence that implicated Hollman or cast
doubt on his story in ways that the custodial statements did not. He
confessed to stabbing Nelson to Henne, whose testimony was properly

Hollman argues that the DNA results of sample on the knife was only able to
reveal that Hollman and any of his male relatives were matches. (Dkt. 1-1 at 31.)
However, there is no evidence that any of those relatives were involved in this crime.
1

13

admitted. Infra Section III.B. Hollman claimed that “LB” committed the
murder, but there was no DNA at the scene of the crime for Lionell
Beckom. Cynthia Parish and Henne both stated that Hollman was high
on Xanax that night, and Nelson had recently filled a prescription for
Xanax, which was missing when they found her body. Her cell phone was
also missing, and Candice Parish and Henne testified that Hollman had
the phone after Nelson’s murder. Parish also testified that Hollman
stated that he should not have the phone or should take the battery out
of it. Given the other evidence that performed the same functions as his
custodial statements and the other evidence implicating Hollman, the
Court does not have grave doubt that the verdict was substantially and
injuriously affected. Therefore, he is not entitled to habeas relief on this
claim.
ii. Unreasonable factual determination
Hollman also contends that the state court made an unreasonable
factual determination when it declared that his custodial “statement
[could] only be viewed as a confession that he was at the scene of the
crime at the time it happened.” (Dkt. 6-18 at 6.) He is not entitled to relief
on this claim.
14

To show that a factual determination was unreasonable under §
2254(d)(2), a petitioner must rebut the state court’s factual findings with
“clear and convincing evidence” and show that those findings “do not have
support in the record.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir.
2017) (quoting Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)).
“Equally important, ‘it is not enough for the petitioner to show some
unreasonable determination of fact; [additionally], the petitioner must
show that the resulting state-court decision was “based on” that
unreasonable determination.’” Carter, 900 F.3d at 768 (alteration and
emphasis in original) (quoting Rice v. White, 660 F.3d 242, 250 (6th Cir.
2011)).
Here, Hollman shows that there was some unreasonable factual
determination, but he does not show that the state court’s decision was
“based on” that unreasonable determination. Hollman did not admit to
being present when Nelson was stabbed. The transcript of the interview
demonstrates that he told the detectives that he left the Nelson’s home
to get cigarettes, and when he returned she had been stabbed. Therefore,
the state court made an unreasonable factual determination.

15

Nonetheless, Hollman does not show that the state-court
determination was based on its erroneous factual finding, or put
otherwise, that the finding affected the state court’s determination that
the admission of the custodial statements was harmless. When it found
that the admission of the custodial statements, whatever they may be,
was harmless error, the state appellate court essentially found that the
statements made no difference to the jury verdict because other evidence
supported the verdict. Therefore, the state court did not base its decision
on the erroneous factual finding—it did the opposite. And the
harmlessness determination, an adjudication on the merits, Davis v.
Ayala, 135 S. Ct. 2187, 2198 (2015), is entitled to AEDPA deference and
subject to Brecht. See supra Section III.A.i. Hollman is not entitled to
habeas relief on this claim.
B. The Failure to Produce Henne for Trial
Hollman also argues that the state appellate court’s determination
that his Confrontation Clause rights were not violated was unreasonable.
Specifically, he argues that the state court unreasonably concluded that
the prosecution exercised due diligence in trying to produce Henne for

16

trial and that Henne was unavailable.2 (See Dkt. 1-1 at 32–39.) Both
arguments fail.
The Sixth Amendment of the United States Constitution
guarantees defendants in criminal cases the right to be confronted with
the witnesses against them. U.S. Const. amend. VI. The Sixth
Amendment “includes the right to cross-examine witnesses.” Richardson
v. Marsh, 481 U.S. 200, 206 (1987). Generally, testimonial statements of
individuals who are absent from trial are admissible only if the declarant
is unavailable and the defendant had a prior opportunity to crossexamine him. Crawford v. Washington, 541 U.S. 36, 68 (2004). The term
“testimonial” applies to prior testimony at a preliminary hearing, id., and
a witness is unavailable for purposes of the Confrontation Clause if “the
prosecutorial authorities have made a good-faith effort to obtain [the

Although Hollman appears to characterize this claim as one under §§
2254(d)(1) and (d)(2) (Dkt. 1-1 at 41–43), he is not attacking the facts from the
evidentiary hearing. See McMullan v. Booker, 761 F.3d 662, 671 (6th Cir. 2014))
(“Factual issues are ‘basic, primary, or historical facts: facts in the sense of a recital
of external events and the credibility of their narrators.’” (quoting Thompson v.
Keohane, 516 U.S. 99, 110 (1995)). Rather, Hollman is attacking the legal
determination that those facts show the prosecution made a good faith effort and
exercised due diligence in trying to secure Henne’s presence at trial. Ultimately, this
is a mixed question of fact and law that is reviewed under § 2254(d)(1). See Sumner
v. Mata, 455 U.S. 591, 597 (1982) (preceding § 2254); Lambert v. Blodgett, 393 F.3d
943, 978 (9th Cir. 2004). Accordingly, the Court construes this claim only as one under
§ 2254(d)(1).
2

17

witness’s] presence at trial.” Barber v. Page, 390 U.S. 719, 724–25 (1968).
Henne’s preliminary hearing testimony was admissible because the
prosecution made a good-faith effort to secure his presence at trial and
the defense had an opportunity to cross-examine him.
First, the state court did not unreasonably conclude that Henne was
unavailable because the prosecution made good-faith efforts to ensure his
presence at trial and he was unwilling to testify. The trial court held an
evidentiary hearing during Petitioner’s trial to determine whether the
prosecution had exercised due diligence in trying to produce Henne for
trial:
Joseph Grigg stated that he found out on February 20, 2013,
that Henne had been released from prison and was out on
parole. Grigg faxed Henne’s parole officer a subpoena, which
the parole officer agreed to serve on Henne. Grigg made phone
contact with Henne on March 5, 2013, and offered to arrange
for Henne to travel to Michigan by plane, train, or bus. Henne
told Grigg he would like to travel by train. Henne expressed
concern that he would have a hard time traveling because he
did not have any ID. Grigg told him to contact the Missouri
Department of Corrections to see if he could get some type of
ID. Grigg spoke to Henne again on March 11, 2013, and
Henne still had not obtained ID. Henne also told Grigg that
he was getting word through social media that he should not
return to Michigan to testify. Grigg explained that
defendant’s mother had told Henne it would be best for her
son if he did not testify. Henne told Grigg that he had been
threatened and was concerned for his own safety. Grigg and
18

Christi Lopez, the office manager for the Saginaw County
prosecutor, eventually arranged for Henne to travel by train
on March 19, 2013. Henne told Grigg and Lopez that he had
been unable to get on the train because he did not have a
ticket and did not have ID. Lopez testified that Henne had
told her he had a prison ID, but that Amtrak would not accept
it. When Grigg spoke to Henne that day, he reminded him
that he had been subpoenaed and that there may be a warrant
issued for his arrest for failing to appear. Grigg told Henne
that he could arrange for him to travel to Michigan by bus and
return to Missouri the next day. Henne agreed.
Later that day, Grigg and prosecutor Paul Fehrman
spoke to Henne on the phone about getting a bus ticket.
According to Grigg, Henne hung up after two minutes, and
that was the last they heard from him.
(Dkt. 6-18 at 7–8 (footnotes omitted).) This is sufficient to show good faith
and due diligence.
The prosecution took exhaustive steps to bring Henne to trial. Shy
of driving hours to physically pick him up, there was not much else the
prosecution could do other than facilitate the logistics, keep in contact
with him, pay for his travel expenses, and offer him protection. Critically,
it is always possible to think of additional steps that the
prosecution might have taken to secure the witness’ presence,
but the Sixth Amendment does not require the prosecution to
exhaust every avenue of inquiry, no matter how unpromising.
And, more to the point, the deferential standard of review set
out in 28 U.S.C. § 2254(d) does not permit a federal court to
overturn a state court’s decision on the question of
unavailability merely because the federal court identifies
19

additional steps that might have been taken. Under AEDPA,
if the state-court decision was reasonable, it cannot be
disturbed.
Hardy v. Cross, 565 U.S. 65, 71–72 (2011) (internal citation omitted). The
Michigan Court of Appeals’ determination that the prosecution had
shown due diligence was reasonable.
The cases that Hollman offers are unpersuasive. First, he only
offers Michigan precedent (Dkt. 1-1 at 34–39), rather than clearly
established law as set forth by the Supreme Court. Second, the cases are
inapplicable because each case addresses the prosecution’s lack of due
diligence in locating the witness within a reasonable amount of time.
E.g., People v. Bean, 457 Mich. 677, 689–90 (1998); People v. Dye, 431
Mich. 58, 78 (1988). But here, the prosecution knew Henne’s location and
they were in regular contact with him a month in advance of trial. The
prosecution simply could not make him travel to Michigan.
Hollman also argues that the prosecution dragged its feet to secure
Henne’s presence because it knew that it would have taken two months
to arrange Henne’s travel when he was in prison (Dkt. 6-7 at 4), but that
reality never came to pass. The evidentiary hearing revealed that Henne
was on parole, and there was no indication that thirty days was then an
20

insufficient amount of time to plan his travel. Therefore, the state
appellate court’s determination that the state trial court was correct to
find the prosecution had exercised due diligence was reasonable.
Hollman also had a prior opportunity to confront Henne at
Hollman’s preliminary examination. And Hollman’s former attorney not
only had an opportunity to cross-examine Henne, he did so. (Dkt. 6-3 at
28–38.) Therefore, the state court did not unreasonably admit the
testimony from the preliminary examination. For these reasons, the
Michigan Court of Appeals did not unreasonably apply Supreme Court
precedent when it concluded that Henne’s preliminary examination
testimony was properly admitted in evidence. Hollman is not entitled to
relief on this claim.
C. Ineffective Assistance of Trial Counsel
In his third and final claim, Hollman alleges that the state
appellate court unreasonably determined that his trial attorney did not
perform deficiently when he did not sustain his objection to the
prosecution’s failure to produce Henne for trial. (Dkt. 1-1 at 44; see also
6-10 at 4–5; Dkt. 6-12 at 41.)

21

To prevail on this habeas claim, Hollman “must show that counsel’s
performance was deficient” and “that the deficient performance
prejudiced the defense.” Hendrix v. Palmer, 893 F.3d 906, 921 (6th Cir.
2018) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Review of counsel’s performance is highly deferential; the deficientperformance prong “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. (same). But failing “to make
meritless objections” is not Strickland-deficient performance. Conley v.
Warden Chillicothe Corr. Inst., 505 F. App’x 501, 508 (6th Cir. 2012)
(citing Bradley v. Birkett, 192 F. App’x 468, 475 (6th Cir. 2006)). And
when AEDPA and Strickland standards “apply in tandem” the review is
“doubly” deferential. Richter, 562 U.S. at 105 (internal and end citations
omitted) (“The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.”).
Hollman’s claim does not survive Strickland deference, much less
double deference. Counsel was not deficient for failing to maintain his
objection to the prosecution’s failure to produce Henne because there was

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no constitutional violation. See supra Section III.B. Thus, the objection
was meritless, and counsel had no obligation to maintain it.
Hollman contends that it was important to confront Henne with his
alleged perjury, i.e. his statement that Hollman confessed to stabbing
Nelson, and Henne’s criminal history. (Dkt. 1 at 4–5; Dkt. 1-1 at 38.) But
because there was no Confrontation Clause violation, this argument is
moot. Even so, defense counsel addressed this concern. He drafted a jury
instruction which noted Henne’s prior convictions, allowing the jury to
assess his credibility, which was read to the jury after Henne’s testimony
was played in the court room (Dkt. 6-13 at 18) and during the charge to
the jury. (Dkt. 6-15 at 25.) Thus, the jurors had a basis for evaluating
Henne’s credibility, despite his absence. For these reasons, Hollman is
not entitled to relief on his ineffective-assistance-of-counsel claim.
IV.

Certificate of Appealability
Federal Rule of Appellate Procedure 22(b)(1) provides that an

appeal may not proceed unless a certificate of appealability is issued
under 28 U.S.C. § 2253, and Rule 11(a) of the Rules Governing Section
2254 Cases requires the Court to “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” To
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obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right, § 2253(c)(2), which is
satisfied only if reasonable jurists could debate whether, or agree that,
the petition should have been resolved in a different manner, or that the
issues presented deserve encouragement to proceed further, Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000).
Reasonable jurists could debate the Court’s assessment of
Hollman’s first claim regarding the harmlessness of admitting his
statements to the police detectives. However, reasonable jurists could not
debate the Court’s assessment of Hollman’s second and third claims.
V.

Conclusion
For the reasons set forth above, the state appellate court’s

adjudication of Hollman’s claims was not contrary to clearly established
Supreme Court precedent, an unreasonable application of Supreme
Court precedent, or an unreasonable application of the facts.
Additionally, reasonable jurists could debate the Court’s assessment of
Hollman’s first claim.
Accordingly, the petition for a writ of habeas corpus (Dkt. 1) is
DENIED WITH PREJUDICE and a certificate of appealability is
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GRANTED as to Hollman’s first claim but DENIED as to his remaining
claims.
IT IS SO ORDERED.
Dated: April 26, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 26, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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