MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this May 11 2015, 10:17 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Joshua Holliman Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Wayne Holliman, May 11, 2015
Appellant-Defendant, Court of Appeals Case No.
86A03-1404-PC-138
v. Appeal from the Warren Circuit
Court; The Honorable John A.
Rader, Judge;
State of Indiana, 86C01-0605-PC-39
Appellee-Plaintiff.
May, Judge.
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[1] Joshua Wayne Holliman appeals the denial of his petition for post-conviction
relief. He presents multiple issues for our review, which we consolidate and
restate as:
1. Whether the post-conviction court abused its discretion when it denied
Holliman’s request to present certain evidence at his post-conviction hearing;
2. Whether Holliman’s trial counsel was ineffective; and
3. Whether Holliman’s appellate counsel was ineffective.
[2] We affirm.
Facts and Procedural History
[3] On August 13, 2003, the State charged Holliman with murder based on
evidence he shot his fiancé at close range with a shotgun and hid her body in
the trunk of his car. On May 21, 2004, a jury found Holliman guilty as
charged. On August 19, 2004, Holliman filed a motion to correct error alleging
juror misconduct. The trial court held a hearing on the matter and denied
Holliman’s motion to correct error on December 29, 2004. Holliman filed an
appeal, and we affirmed the trial court’s judgment in a memorandum decision.
Holliman v. State, 86A03-0501-CR-12 (Ind. Ct. App. September 12, 2005).
[4] On May 19, 2006, Holliman filed a pro se petition for post-conviction relief. On
February 3, 2011, Holliman, by counsel, amended his petition for post-
conviction relief. The post-conviction court held an evidentiary hearing and
denied Holliman’s amended petition for post-conviction relief.
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Discussion and Decision
[5] We first note Holliman proceeds pro se. A litigant who proceeds pro se is held to
the rules of procedure that trained counsel is bound to follow. Smith v. Donahue,
907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk
a litigant takes when he proceeds pro se is that he will not know how to
accomplish all the things an attorney would know how to accomplish. Id.
When a party elects to represent himself, there is no reason for us to indulge in
any benevolent presumption on his behalf or to waive any rule for the orderly
and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.
Ct. App. 2006).
[6] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are
civil in nature, the petitioner must prove his grounds for relief by a
preponderance of the evidence. Id. A party appealing a post-conviction
judgment must establish that the evidence is without conflict and, as a whole,
unmistakably and unerringly points to a conclusion contrary to that reached by
the post-conviction court. Id. Where, as here, the post-conviction court makes
findings of fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6), we do not defer to the court’s legal conclusions, but “the
findings and judgment will be reversed only upon a showing of clear error – that
which leaves us with a definite and firm conviction that a mistake has been
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made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation
and citation omitted).
1. Admission of Evidence at Post-Conviction Hearing
[7] The admission of evidence in a post-conviction proceeding is within the post-
conviction court’s discretion and we will reverse only upon an abuse of that
discretion. Conner v. State, 711 N.E.2d 1238, 1258 (Ind. 1999), reh’g denied, cert.
denied sub nom Conner v. Indiana, 531 U.S. 829 (October 2, 2000).
A. Audio Tape from Holliman’s Criminal Trial
[8] During the post-conviction hearing, Holliman requested the court admit
portions of the audio recordings of his trial. The trial court denied his request,
and during his offer to prove, Holliman indicated the portions of the tape would
demonstrate his trial counsel was intoxicated based on his speech patterns,
specifically that he was slurring his words. However, Holliman had already
presented multiple witnesses regarding his claim trial counsel was intoxicated,
and the trial transcript was before the post-conviction court. Therefore, if there
was any error in the post-conviction court’s denial of Holliman’s request to
admit the audio tapes, it was harmless because that evidence was cumulative of
other evidence already before the post-conviction court. See Willis v. State, 776
N.E.2d 965, 967 (Ind. Ct. App. 2002) (admission of evidence harmless if
evidence is cumulative of other properly-admitted evidence).
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B. Testimony of Juror
[9] During his post-conviction hearing, Holliman attempted to admit into evidence
the testimony of a former juror whom Holliman claimed would testify the jury
would have decided differently if given an instruction regarding a lesser-
included offense. The post-conviction court denied Holliman’s request.
Indiana Evidence Rule 606(b) states, in relevant part:
During an inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on the juror’s or
another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment. The court may not receive a juror’s affidavit or
evidence of a juror’s statement on these matters.
As Holliman intended to elicit testimony from the former juror that was
inadmissible under Evid. R. 606(b), the post-conviction court did not abuse its
discretion when it denied his request to admit that testimony.
2. Ineffective Assistance of Trial Counsel
[10] A successful claim of ineffective assistance of trial counsel must satisfy two
components. First, the defendant must show deficient performance -
representation that fell below an objective standard of reasonableness involving
errors so serious that the defendant did not have the counsel guaranteed by the
Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g
denied. Second, the defendant must show prejudice - a reasonable probability
(i.e., a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been different. Id.
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A. Voluntary Manslaughter Instruction
Holliman argues his trial counsel was ineffective because he did not proffer a
jury instruction regarding the lesser-included offense of voluntary manslaughter.
However, in his amended petition for post-conviction relief and during his post-
conviction hearing, Holliman argued his trial counsel should have submitted a
jury instruction regarding the lesser-included offense of reckless homicide. As
he cannot make one argument to the lower court and then present a different
argument on appeal, his argument is waived. See Bryant v. State, 802 N.E.2d
486, 496 (Ind. Ct. App. 2004) (appellant may not advance a different argument
on appeal than was presented before the lower court), trans. denied.
B. Counsel’s Alleged Intoxication
Holliman argues his trial counsel was ineffective because he was intoxicated
during Holliman’s trial. Holliman testified he thought his trial counsel was
intoxicated, and Holliman presented one witness at the post-conviction hearing
who testified he thought Holliman’s trial counsel was intoxicated during trial.
However, the trial court judge and two other witnesses testified Holliman’s trial
counsel did not show signs of intoxication during trial. Holliman’s arguments
are invitations for us to reweigh the evidence, which we cannot do. See Mahone
v. State, 742 N.E.2d 982, 984 (Ind. Ct. App. 2001) (appellate court will not
reweigh evidence or judge the credibility of witnesses on appeal), trans. denied.
C. Additional Allegations of Ineffective Assistance
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[11] Holliman argues his trial counsel was ineffective for a variety of other reasons:
The appellant now lists the remaining seventeen (17) acts of ineffective
assistance of counsel that was [sic] raised on PCR.
11) [Trial Counsel] failed to follow appellant’s instructions (i.e.
[Trial Counsel] was paid funds to hire a private investigator, an
expert witness, and co-counsel but kept the funds without hiring
anyone)
12) [Trial Counsel] failed to investigate juor backgrounds and
properly question them during Voir Dire.
13) [Trial Counsel] ruined the appellant’s Mistrial Hearing by
failing to obtain the Voir Dire Transcripts, even after the
appellant’s family volunteered to pay for them.
14) [Trial Counsel] failed to investigate Tampering with evidence
(weapon).
15) [Trial Counsel] lied to the appellant and his family about never
having a disciplinary complaints against him.
16) [Trial Counsel] failed to keep the appellant informed while
awaiting trial.
17) [Trial Counsel] failed to make proper objections at trial.
18) [Trial Counsel] lost valuable statements during trial.
19) [Trial Counsel] kept postponing the appellant’s case due to not
being prepared.
20) [Trial Counsel] had the appellant’s family members to deliver
subpoenas and other paperwork which he had been paid to do.
21) [Trial Counsel] failed to inform witnesses of the court dates.
22) [Trial Counsel] failed to investigate prosecutorial misconduct.
23) [Trial Counsel] failed to investigate detective bias.
24) [Trial Counsel] failed to contact and interview defense
witnesses.
25) [Trial Counsel] failed to allow the petitioner to assist in his own
defense.
26) [Trial Counsel] failed to conduct proper discovery prior to trial.
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(Br. of Appellant at 19) (emphasis omitted; errors in original). Holliman also
argued his trial counsel was ineffective because he did not request a change of
venue.
[12] There are two requirements to prove trial counsel was ineffective: first, the
petitioner must demonstrate trial counsel’s actions fell below an objective
standard of reasonableness and then he must demonstrate he was prejudiced by
those actions. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied. In
his appellate brief, Holliman states, “The appellant has never claimed that the
guilty verdict was not valid, nor is he doing it now.” (Br. of Appellant at 6.) In
addition, Holliman admitted to police he shot the victim. As Holliman has
admitted his guilt, he cannot claim he was prejudiced by counsel’s actions
because the results of his trial would not have been different but for counsel’s
actions. See McCary, 761 N.E.2d at 392 (appellant must demonstrate but for
counsel’s errors his trial would have had a different result).
3. Ineffective Assistance of Appellate Counsel
[13] Claims of ineffective assistance of appellate counsel are reviewed using the
same standard as claims of ineffective assistance of trial counsel. Taylor v. State,
717 N.E.2d 90, 94 (Ind. 1999). These claims generally fall into three categories:
(1) denying access to appeal; (2) waiver of issues; and (3) failure to present
issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied sub
nom. Bieghler v. Indiana, 525 U.S. 1021 (1998). Relief is appropriate only when
we are confident we would have ruled differently. Id. at 196.
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[14] Holliman argues his appellate counsel was ineffective because he did not raise
the issue of ineffective assistance of counsel on appeal. However, Holliman has
not demonstrated he was prejudiced by this decision, which is required to show
ineffective assistance of counsel. See McCary, 761 N.E.2d at 392 (petitioner
must demonstrate prejudice from counsel’s alleged errors). Further, we note
had Holliman’s appellate counsel raised the issue on direct appeal, he would
have foreclosed Holliman from raising that issue before the post-conviction
court. See Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind. 2000) (once a
petitioner raises a claim of ineffective assistance of counsel on direct appeal, he
is precluded from raising ineffective assistance of trial counsel in a petition for
post-conviction relief), reh’g denied, cert. denied sub nom. Ben-Yisrayl v. Indiana,
534 U.S. 1164 (2002).
Conclusion
[15] The post-conviction court did not abuse its discretion when it denied
Holliman’s request to admit the audio tapes of his trial and the testimony of a
former juror. Additionally, Holliman has not demonstrated his trial counsel
and appellate counsel were ineffective. Accordingly, we affirm.
[16] Affirmed.
Robb, J., and Mathias, J., concur.
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