The opinion of the court was delivered by: Mills, District Judge:
Ineffective assistance of counsel?
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
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
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.
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.
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
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 ...