United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge United States District Court.
reasons explained in this Entry, the petition of Jason
Holliman for a writ of habeas corpus must be denied and the
action will be dismissed with prejudice. In addition, the
Court finds that a certificate of appealability should not
pleadings and the expanded record establish the following:
District court review of a habeas petition presumes all
factual findings of the state courts to be correct, absent
clear and convincing evidence to the contrary. See 28 U.S.C.
§ 2254(e)(1); Daniels v. Knight, 476 F.3d 426,
434 (7th Cir. 2007). No showing of such a nature has been
attempted here. The court therefore adopts the factual
account of the Indiana Court of Appeals in Holliman's
direct appeal: Holliman lived in Warrick County with Natasha
Kimberling and her two children. Holliman and Kimberling
argued during the day on August 10, 2003. Kimberling told
Holliman that she was going to leave him. That evening,
Holliman retrieved his shotgun from his gunroom. Carrying the
shotgun, Holliman walked into the living room, toward the
chair in which Kimberling was sitting. Kimberling lunged
forward. Holliman threw the gun up and pulled the trigger.
Kimberling was shot in the head from a distance of two feet.
She died. Two months later, on October 12, 2003, Holliman was
charged with Kimberling's murder. At trial, a jury found
him guilty of this offense and on July 20, 2004 he was
sentenced to an executed term of 55 years.
Holliman's conviction was affirmed on appeal in
Holliman v. State, 86A03-0501 -CR-12 (Ind.Ct.App.
September 12, 2005)(Holliman I), wherein his
challenges to the sufficiency of the evidence and the failure
of two jurors to disclose an indirect relationship with the
prosecutor's wife were rejected. The Indiana Supreme
Court denied Holliman's petition to transfer.
trial court then denied Holliman's amended petition for
post-conviction relief. This decision was affirmed in
Holliman v. State, 2015 WL 2183819 (Ind.Ct.App. May
11, 2015) (“Holliman II”). The Indiana
Supreme Court again denied Holliman's petition to
Holliman II, Holliman argued: 1) the post-conviction
court erroneously excluded evidence; 2) his trial counsel was
ineffective; and 3) his appellate counsel in Holliman
I was ineffective. In his petition to transfer, however,
Holliman did not include his claim of ineffective assistance
of counsel in Holliman I.
seeks relief pursuant to 28 U.S.C. § 2254(a). He asserts
the same claims which were asserted in Holliman II.
federal court may grant habeas relief to a petitioner
“only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Holliman filed his
habeas petition after the effective date of the Antiterrorism
and Effective Death Penalty Act (AEDPA). His petition,
therefore, is subject to AEDPA. See Lindh v. Murphy,
521 U.S. 320, 336 (1997). AEDPA “place[s] a new
constraint” on the ability of a federal court to grant
habeas corpus relief to a state prisoner “with respect
to claims adjudicated on the merits in state court.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). The
requirements of AEDPA “create an independent, high
standard to be met before a federal court may issue a writ of
habeas corpus to set aside state-court rulings, ”
Uttecht v. Brown, 555 U.S. 1, 10 (2007) (citations
omitted), and reflect “the view that habeas corpus is a
‘guard against extreme malfunctions in the state
criminal justice systems, ' not a substitute for ordinary
error correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 103 (2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979)). Our Court of
Appeals has explicated the standard to be applied in ruling
on a petition seeking relief under this statute:
When a state court has ruled on the merits of a habeas claim,
our review is circumscribed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
See 28 U.S.C. § 2254(d); Harrington v.
Richter, 131 S.Ct. 770, 783- 84, 178 L.Ed.2d 624 (2011).
Under AEDPA, we may grant relief only if the state
court's decision on the merits “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or “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. § 2254(d)(1) and (2). Plainly stated, these are
Atkins v. Zenk, 667 F.3d 939, 943-44 (7th Cir.
2012). In short, the standard of § 2254(d) is
“difficult to meet . . . because it was meant to
be.” Burt v. Titlow,134 S.Ct. 10, 16 ...