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MONTGOMERY v. PETERSEN

July 17, 1987

CARL WILLIAM MONTGOMERY, PETITIONER,
v.
DALE PETERSEN, RESPONDENT.



The opinion of the court was delivered by: Mills, District Judge:

OPINION ORDER

Habeas corpus.

Ineffective assistance of counsel?

We find that there was.

The writ must be granted.

Carl Montgomery is currently incarcerated in the Lincoln Correctional Center at Lincoln, Illinois, and petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the constitutionality of his state court conviction for residential burglary maintaining that he was denied the effective assistance of counsel in violation of the Sixth Amendment.

Pursuant to the rules governing § 2254 cases, Montgomery has served copies of the petition upon Respondent and the Attorney General of the State of Illinois. The state has timely answered.

Because Petitioner does not dispute the summary of facts contained in the appellate court opinions, but only disputes the inferences to be drawn therefrom, this Court may rely upon those summaries and need not review the transcript of the underlying state court trial. See, e.g., Davis v. Franzen, 671 F.2d 1056 (7th Cir. 1982). Likewise, because the state procedure provided Petitioner with a full and fair hearing in this matter, we need not hold a new evidentiary hearing. See, e.g., Cartee v. Nix, 803 F.2d 296, 298 (7th Cir. 1986).

Because our review of the facts and law indicate that Montgomery was denied effective assistance of counsel in violation of the Sixth Amendment, we must grant the writ.

I Facts

The facts are set out well in the opinion of the state appellate court. People v. Montgomery, 141 Ill. App.3d 428, 490 N.E.2d 206, 95 Ill.Dec. 733 (1986). Here, a brief summary should suffice.

Carl Montgomery was convicted of residential burglary in Moultrie County. The state's chief evidence against him was the testimony of his half-brother, Wayne Montgomery. Wayne Montgomery had pled guilty to the same burglary in Moultrie County and had also pled guilty to a burglary in Macon County occurring the same day. He testified that he and Carl planned a series of burglaries on the morning of September 9, 1983. On that same day they accomplished their goal, committing two burglaries, one in Moultrie County and one in Macon County. After testifying on the direct examination that he and Carl had planned and accomplished the burglaries, he was impeached on cross-examination through the use of prior convictions. The Government also called Wayne Montgomery's wife who testified that she overheard the discussion between Wayne and Carl on that morning. Two other family members testified they saw Wayne and Carl arrive together at Carl's house in Springfield later that evening.

The defense case centered on an alibi defense which placed Carl in Springfield during the day the burglary took place. In the Moultrie County trial, twelve alibi witnesses were called and testified to being with or observing Carl in Springfield on September 9. All the witnesses called on Carl's behalf were either relatives or close friends. The jury came back with a verdict of guilty.

Subsequently, Carl was tried in Macon County for the burglary occurring that same afternoon. At this trial an employee from the Springfield Sears store, Barry Holktramp, testified that Carl and his wife purchased a bike from him at approximately 1:30 p.m. on September 9. Holktramp specifically remembered Carl Montgomery because ...


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