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Holloway v. Bush

United States District Court, M.D. Pennsylvania

April 10, 2019

SHANE HOLLOWAY, Petitioner
v.
ERIC BUSH, Respondent

          Brann, Judge.

          REPORT AND RECOMMENDATION

          Martin C. Carlson, United States Magistrate Judge.

         I. INTRODUCTION

         Pending before the Court is a petition for a writ of habeas corpus filed by Shane Holloway, an inmate in the custody of the Pennsylvania Department of Corrections, currently housed at the State Correctional Institution at Mahanoy. Holloway is serving a sentence of life imprisonment for second-degree murder, carrying a firearm without a license, and tampering with physical evidence following his conviction for a drug-related homicide. Upon consideration of the petition, the Commonwealth's response, and the underlying record of Holloway's criminal and post-conviction proceedings, it will be recommended that the petition be denied.

         II. BACKGROUND

         Shane Holloway was convicted of participating in a drug-related killing. The circumstances of this case were described in detail by the Pennsylvania Superior Court in its decision affirming Holloway's conviction and sentence. At that time, the Court explained that:

Illiana Luciano (“Luciano”) was dating [Courtney] Jackson (“the victim”). On March 4, 2013, the two spent time together until approximately 5:00 p.m. (Notes of testimony, 3/24/14 at 69-71.) At this time, Luciano drove the victim around the corner to the Turkey Hill store where he was to meet with an acquaintance known as “Layton.” (Id. at 72.) Luciano did not communicate with the victim again until approximately 6:30 p.m. when the store clerk at the B & W Corner Store notified her that the victim had purchased something in the store but never came to retrieve it. (Id. at 77.)
Wayne Cameron (“Cameron”) testified to his observations of the events on March 4, 2013. At 8:00 p.m., Cameron was outside of his home near the B & W Corner Store when he discovered a young man, later identified as the victim, lying face down in the alleyway. (Id. at 91.) Cameron approached and found the victim covered in blood and saw foam coming from his mouth. He found that the victim did not have a pulse. Cameron explained that the victim's body was outstretched as if he was running with both hands extended from his body. (Id. at 91, 95.) The victim was holding a cell phone in one of his hands that was ringing repeatedly, and a picture of a woman continued to appear on the screen as the phone rang. (Id. at 96-97.)
The police investigated and recovered fired shell casings from a .40 caliber and a .25 caliber gun. Dr. Wayne Ross performed an autopsy and also examined the crime scene photos. (Notes of testimony, 3/25/14 Vol. I at 57-58.) The victim had been shot several times in the chest, his arm, and his back. (Id. at 61.) When the clothing was removed from his body, Ross observed eight gunshot wounds-four were to the left arm, three to the left side of his chest, and one to his back. (Id. at 71.) Three of the gunshot wounds were fatal with two being made by the .25 caliber bullet. Based on gunpowder residue, Dr. Ross testified that he was shot at a distance of greater than four feet away from the .40 caliber gun and two to three feet away from the .25 caliber gun. (Id. at 69-70.) Dr. Ross determined that the body had to have been face down prior to being face up at the crime scene due to the foliage and soil on his body. (Id. at 60.) A .40 caliber bullet was recovered at the scene from beneath the victim's T-shirt.
Layton Potter, a friend of the victim's, testified to the events of March 4, 2013. (Notes of testimony, 3/25/14 Vol. II at 4.) Potter explained that the victim used to sell marijuana and cocaine to him. (Id. at 5-6.) On March 4, 2013, Potter had placed a call between 1:00 p.m. and 3:00 p.m. to the victim that he wanted to buy drugs. (Id. at 6-7.) The plan was for Potter to pick up the victim at the Turkey Hill Store and drive him to 19th and North Street where the victim gave cocaine to Potter. (Id. at 8.) Potter then drove home to smoke the drugs at his house. Later that evening, Potter wanted to buy more cocaine and called the victim again at 7:00 p.m. The men agreed to meet at North Street across from the B & W Corner Store. The exchange took place in Potter's car. (Id.)
The men then went into the store, and Potter saw [Holloway] with Tyya Barnes across the street. Potter observed [Holloway] and Barnes “huddling, ” which is street terminology for leaning in towards each other and conversing quietly; he also observed them making hand gestures. (Id. at 10, 15-18.) The victim indicated that he was going to conduct a drug transaction with [Holloway] and Barnes. (Id. at 19.) The victim then took Potter home, and that was the last time Potter saw him alive.
Detective Jeffrey Schriver responded to the scene following an emergency call reporting what had happened in the alley. Upon arrival, he noticed Jackson's cell phone ringing and copied the incoming phone numbers that appeared on the screen. (Notes of testimony, 3/25-26/14 Vol. III at 48.) The last call that was received and answered by Jackson was from a number which belonged to Barnes.
On March 6, 2013, Detective Schriver conducted a voluntary interview with [Holloway] at the Harrisburg police station. (Id. at 50-53.) During the interview, [Holloway] stated that on March 4, 2013, he was not at the location where the victim was shot and killed. [Holloway] stated that he learned about the victim's death via Facebook.
On March 8, 2013, Detective Joseph A. Zimmerman conducted a second interview with [Holloway] and recorded his statements. (Id. at 110.) [Holloway] was brought to the police department for a noncustodial interrogation; at this point, [Holloway] was considered a person of interest but not a suspect. (Id. at 112-113.) Detective Zimmerman met [Holloway] in the interview room with Detective Schriver and stated that the interview was going to be non-custodial and that [Holloway] was free to leave anytime. In an abundance of caution, Detective Zimmerman also gave [Holloway] his Miranda rights orally and in writing, which he signed. (Id. at 114.)
During this recorded statement, [Holloway] admitted that Barnes made a phone call to the victim to arrange a meeting at 7:00 p.m. at 19th and North Street. (Id. at 131.) The men met the victim and then proceeded to Barnes' car, which was parked in a dark alleyway several blocks away, so the victim could use his scale. (Id. at 132.) [Holloway] averred that while the victim was trying to weigh the drugs in the backseat, Barnes opened fire using two different caliber firearms which were in the car. (Id.) [Holloway] noted that one of the guns sounded louder than the other. [Holloway] explained that he heard more shots fired from the softer-sounding gun. (Id. at 139.) [Holloway] alleged that he ducked down and did not see what part of the victim's body had been shot. (Id. at 140.) When asked what happened to the shell casings in the car, [Holloway] said that he picked them up and explained “we flushed them down the toilet” at [Holloway]'s house. (Id. at 132-133.) [Holloway] averred that Barnes was in possession of his two guns and the victim's gun.
[Holloway] initially stated that he pulled the victim out of the car and laid him on the ground. (Id.) [Holloway] stated he was unsure as to whether Barnes took any drugs that had been left in the vehicle. (Id. at 134.) However, [Holloway] began to change his statement when Detective Zimmerman indicated that the autopsy report concluded the victim was shot outside of the vehicle. (Id. at 141.) [Holloway] then stated that the victim had a gun, so Barnes got out of the car and shot the victim while [Holloway] was pulling the victim out of the car. (Id. at 141.) When [Holloway] was pulling the victim out of the car, Barnes fired the last shot into the victim. The victim's gun then fell onto the ground, and [Holloway] picked it up and gave it to Barnes. (Id.) [Holloway] also stated that he picked up the casings from the interior of the car. (Id. at 142.)
Cell phone records established that Barnes called the victim three times. [Holloway] stated that during the calls, Barnes, [Holloway], and the victim discussed obtaining scales to weigh the drugs. Store surveillance footage introduced at trial showed the victim purchasing a scale from a convenience store in Harrisburg. [Holloway] stated that Barnes was buying the drugs, and he denied knowing how much Barnes had planned to buy. (Id. at 144.) [Holloway] averred that the men had never talked about a plan to rob the victim. (Id.)
Appellant's girlfriend, Emily Latshaw, testified that [Holloway] and Barnes both asked her to lie to the police after the victim was killed; Latshaw admitted that she initially lied when talking to the police. (Id. at 33-35, 43.) Latshaw, who lived with [Holloway] also testified that she observed a disruption in their routine after the victim was killed. (Id. at 3637.)

Commonwealth v. Holloway, No. 820 MDA 2014, 2015 WL 7458837, at *1-3 (Pa. Super. Ct. Mar. 23, 2015).

         In March of 2014, Holloway was tried for his role in this drug-related homicide. At the conclusion of the trial, he was convicted of all counts and was sentenced as follows: count 1 (second-degree murder) life imprisonment; count 2 (robbery) merged with count 1, count 4 (carrying a firearm without a license) two to five years' incarceration, concurrent to count 1; count 5 (tampering with evidence) six months to two years' incarceration, concurrent with count 1. Id., at *3.

         A direct appeal followed. On appeal, Holloway raised three claims:

I. Whether the trial court committed a fundamental error of law where it erroneously instructed the jury that an accessory after the fact may be liable as an accomplice where such instruction misled and confused the jury, and prejudiced Appellant as the charge permitted a finding of guilt without requiring the Commonwealth to establish the critical elements of accomplice liability beyond a reasonable doubt?
II. Whether the Commonwealth failed to present sufficient evidence to sustain Appellant's convictions for: murder and robbery where the Commonwealth failed to prove that Appellant possessed specific intent for the crime of robbery, and; carrying a firearm without a license and tampering with evidence where the Commonwealth failed to prove that Appellant was the individual who committed the crimes in question?
III. Whether the trial court erred in failing to suppress Appellant's statements where Appellant invoked his right to silence but was denied his right to silence in violation of Article I, Section 9 of the Pennsylvania Constitution and the Fifth Amendment to the United States Constitution?

Id. at *3-4. Upon consideration of these claims, the Superior Court affirmed this conviction and sentence, id., and the Pennsylvania Supreme Court denied allocator on September 30, 2015.

         Nearly one year later, on September 6, 2016, Holloway filed a petition under Pennsylvania's Post-Conviction Relief Act (“PCRA”), collaterally challenging this state court conviction. That petition was denied by the trial court, and Holloway once again appealed the denial of this post-conviction relief to the Pennsylvania Superior Court. In this appeal, Holloway raised three claims; namely:

1. Whether the trial court abused its discretion when it allowed the jury to return a verdict before providing the requested jury instructions concerning accomplice liability for homicide 1, 2, and 3 and accomplice liability charge?
2. Whether trial counsel [was] ineffective for failing to raise [a] claim, formally object, motion for a mistrial or file a post-sentence motion when trial court erred by failing to provide the requested instruction on accomplice liability?
3. Whether the trial court violated the Eighth Amendment and proportionate penalties clause of the Constitution where sentencing [Holloway to life imprisonment] would be cruel, degrading, and wholly disproportionate to the offense as to shock the moral sense of the community?

Commonwealth v. Holloway, No. 204 MDA 2017, 2018 WL 494438, at *2 (Pa. Super. Ct. Jan. 22, 2018).

         The Superior Court affirmed the denial of post-conviction relief for Holloway. Id. With respect to Holloway's first claim-that the trial judge allowed the jury to return a verdict before the court answered all of the questions posed by jurors during their deliberations-the appellate court noted that this issue had not been presented below and was therefore waived. Id. In any event, the court observed that the unanswered jury question related to accomplice liability. On this score, the jury had been thoroughly instructed on the question of accomplice liability in the court's initial jury instructions, and the record revealed that, notwithstanding their unanswered question, the jury was able to reach a unanimous verdict. Id.

         As for Holloway's challenge to the effectiveness of his trial counsel based upon counsel's failure to object to the accomplice liability instruction, the Superior Court concluded that the instruction, as given, was proper, and Holloway suffered no unfair prejudice. “Therefore, Holloway's argument does not meet [the] two prongs of the ineffectiveness test, that the underlying argument had arguable ...


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