United States District Court, N.D. Illinois, Eastern Division
January 5, 2005.
United States of America ex rel. WILLIE WHEELER, Petitioner,
JONATHAN WALLS, Warden, Jacksonville Correctional Center, Respondent.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Willie Wheeler ("Wheeler") was convicted at a bench
trial in the Circuit Court of Cook County, Illinois, of two
counts of possession of a controlled substance with intent to
deliver. The court sentenced Wheeler to prison terms of ten and
seven years, to run concurrently. In his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, Wheeler claims that
the trial judge's questioning of a "critical" defense witness at
a time when Wheeler's counsel was not present violated his Sixth
Amendment right to the effective assistance of counsel. For the
reasons stated below, the court denies his petition.
I. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act
("AEDPA"), this court must deny Wheeler's petition for a writ of
habeas corpus with respect to any claim adjudicated on the merits
in a state court unless the state court's decision "was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Lindh v. Murphy,
96 F.3d 856, 879 (7th Cir. 1996), rev'd on other grounds,
521 U.S. 320 (1997). A state court's decision is contrary to
clearly established Supreme Court precedent "if the state court
arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law" or "if the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to
[it]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state
court's decision is an unreasonable application of clearly
established Supreme Court law "if the state court identifies the
correct governing legal rule from [the] Court's cases but
unreasonably applies it to the facts of a particular prisoner's
case" or "if the state court either unreasonably extends a legal
principle from [Court] precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a
new context where it should apply." Id.
When a case falls under § 2254(d)(1)'s "contrary to" clause,
this court reviews the state court decision de novo to
determine the legal question of what is clearly established law
as determined by the Supreme Court and whether the state court
decision is "contrary to" that precedent. When a case falls under
the "unreasonable application of" clause of § 2254(d)(1),
however, the court defers to a reasonable state court decision.
Anderson v. Cowan, 227 F.3d 893, 896-97 (7th Cir. 2000). In
other words, the court reviews core issues of federal law de
novo. Lindh, 96 F.3d at 877. When confronted with mixed
questions of law and fact (i.e., whether a state court's
holding involved an "unreasonable application" of clearly
established Supreme Court precedent), the court also applies a
de novo standard but "with a grant of deference to any
reasonable state court decision." Anderson, 227 F.3d at 897. A
state court satisfies this reasonableness standard if its
application is "at least minimally consistent with the facts and circumstances of the case." Spreitzer v. Peters, 114 F.3d 1435,
1442 (7th Cir. 1997).
A. Procedural History
Following a bench trial in the Circuit Court of Cook County in
2000, Wheeler was convicted of two counts of possession of a
controlled substance (cocaine and heroin), with intent to
deliver. He was sentenced to concurrent prison terms of ten and
seven years respectively. Wheeler appealed his conviction to the
Illinois Appellate Court, arguing that the trial judge's
questioning of a "critical" defense witness at a time when
Wheeler's counsel was not present denied him of his right to the
effective assistance of counsel, and that the judge abandoned his
role as an impartial arbiter and assumed the role of an advocate.
On June 20, 2002, the appellate court affirmed Wheeler's
conviction and sentence. People v. Wheeler, No. 1-00-2759, slip
op. (Ill.App. 1st Dist. 2002). On October 2, 2002, the
Illinois Supreme Court denied Wheeler's petition for leave to
When considering a habeas petition, the court must presume that
the state courts' factual determinations are correct unless the
petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig,
283 F.3d 842, 846 (7th Cir. 2002). Wheeler has not presented
clear and convincing evidence to rebut this presumption. Thus,
the court relies on the Illinois Appellate Court's recitation of
the facts. Wheeler, No. 1-00-2759, at 1-6.
On March 6, 1999, approximately six Chicago police officers
executed a search warrant at an apartment at 8100 South Drexel
Avenue in Chicago. Officer Nicholas Zavolokoff testified that, upon entering the apartment, he saw Wheeler walking out of
a bedroom and a woman, later identified as Wheeler's fiancée
Cherise Walls, standing in an open kitchen. Zavolokoff asked
Wheeler if he resided in the apartment, and Wheeler responded
"yes." Zavolokoff showed Wheeler the search warrant and searched
Wheeler's person. He recovered three house keys, two of which fit
back doors to the apartment, a payroll check from J.P.C.
Industries, Inc., payable to Willie Wheeler at 8100 South Drexel,
and $290 in currency. In response to questions from the officers,
Wheeler stated that he had a nine millimeter pistol under his
mattress in the bedroom and that there were no narcotics in the
Zavolokoff and another officer then searched the bedroom that
Zavolokoff had seen Wheeler exiting. The officers found a loaded
nine millimeter pistol under the mattress and an Uzi assault
rifle with three clips in a gun case under the bed. They also
recovered an open cardboard box on the night stand containing a
plastic bag of white powder the officers suspected to be heroin,
a bag of a substance the officers suspected to be crack cocaine,
several plastic bags, two plastic bottles, a digital gram scale,
and an electric grinder with white powder residue. They also
found nine boxes of live ammunition in the closet. Zavolokoff
testified that during the search of the bedroom, he observed both
men's and women's clothing.
Zavolokoff then placed Wheeler under arrest and told him about
the items found in the bedroom. According to Zavolokoff, Wheeler
stated that "the crack cocaine was his, the heroin was not, the
nine millimeter was his, and the Uzi was not." At the police
station, Wheeler told police where he had purchased the nine
millimeter and the crack cocaine and again denied owning the
At Wheeler's bench trial, the parties stipulated that a
forensic chemist would testify that he tested the substances recovered from the apartment. One bag
weighed 123 grams and tested positive for cocaine. The other bag
weighed 19.9 grams and tested positive for heroin.
After the state rested its case, the trial judge granted
Wheeler's motion for a directed finding of not guilty as to one
count of armed violence with the assault rifle. The judge then
continued the case until the following week so that defense
counsel could present the testimony of Wheeler and Cherise Walls
on the same day.
On the next scheduled trial date, Wheeler's retained counsel
was not present. The judge asked Wheeler if he wanted a
continuance so that his attorney could be present, and Wheeler
replied that he did. Wheeler's work supervisor, Joe Pullen
("Pullen") was present that day, and the judge told Pullen that
the case would be continued and asked him to come back in a
month. Pullen was not listed on Wheeler's answer to discovery as
a potential defense witness at trial. Pullen stated that he
thought he was present as a character witness and to substantiate
Wheeler's employment. Pullen asked, "Is it possible that I could
do that now, for the record?" The judge asked if the prosecutor
had any objection, and the prosecutor replied that he did not.
Pullen was then sworn, and the following exchange took place:
COURT: Could you state your name and spell your last
name for the record?
PULLEN: My name is Joe Pullen, P-u-l-l-e-n.
COURT: All right. Mr. Pullen, could you let us know
what your purpose is here today?
PULLEN: My purpose was to serve as a character
witness for Mr. Wheeler and to substantiate his
employment with the Safety Co. Company.
COURT: All right. Could you do that?
PULLEN: Well, Willie has worked for the company for
about a year and a half now, pretty close to it. And
he has worked out surprisingly. I didn't expect to
get the performance from him that I did. He has moved
from a service technician's position to office sales
and training. He has been, which surprised me through
his work he comes to work on time everyday. I think
a lot of him.
COURT: Thank you. State, do you have any cross
MR. AUSTIN [Assistant State's Attorney]: Sir, you
weren't present on the date that Mr. Wheeler was arrested, is that right?
AUSTIN: You were not present then?
The judge then excused Pullen and continued the trial to a date
six weeks later. When the trial resumed, Wheeler's counsel was
present, but he neither mentioned Pullen's testimony nor
requested that Pullen be recalled as a witness.
The Sixth Amendment of the United States Constitution
guarantees all criminal defendants "the Assistance of Counsel."
Wheeler contends that the trial judge violated his Sixth
Amendment right to the assistance of counsel by questioning
Pullen while Wheeler's counsel was absent from the courtroom and
without obtaining from Wheeler a waiver of his right to counsel.
The entirety of his claim is that, "On the second day of trial,
the trial judge continued without retained counsel's presence, in
disregard of Wheeler's request for a continuance, and ? the
judge rendered `direct examination' of a critical defense
This court first reviews the state court decision to determine
whether the state court arrived at a "conclusion opposite to that
reached by [the Supreme] Court on a question of law" or "if the
state court confront[ed] facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrive[d] at a result opposite to [it]." Williams v. Taylor,
529 U.S. 362, 405 (2000). Normally, to establish ineffective
assistance of counsel, a defendant must show that his attorney's
performance was deficient and that he was prejudiced by that
deficient performance. See e.g., Strickland v. Washington,
466 U.S. 668 693-696 (1984). However, in United States v. Cronic,
466 U.S. 648, 659 (1984), the Supreme Court stated that courts
should presume constitutional error, without regard to prejudice when the
accused is denied counsel at a "critical stage of his trial."
In rejecting Wheeler's appeal, the Illinois Appellate Court
held that Wheeler was not prejudiced by the trial judge's
questioning of Pullen. The court held that, regardless of
the evidence overwhelmingly established defendant's
guilt. Officer Zavolokoff testified that defendant
admitted he resided in the apartment and owned
cocaine found there. The officer found keys to the
apartment on defendant's person. Besides the large
quantities of cocaine and heroin found, the police
also recovered drug paraphernalia and weapons from
the bedroom they saw defendant exiting. Given this
evidence, the State has met its burden of showing
that the court's questioning of Pullen was harmless
beyond a reasonable doubt.
This holding is "at least minimally consistent with the facts and
circumstances of the case." Spreitzer, 114 F.3d at 1442. Thus,
Wheeler's claim must fail unless the judge's questioning of
Pullen occurred during a "critical stage" of Wheeler's trial. The
court holds that it did not.
The record shows that Pullen, whose name was absent from the
list of witnesses in Wheeler's answer to discovery, appeared in
court at a time when defense counsel was not present. When asked
if he could return at a later time, Pullen said that he was there
as a character witness and to substantiate Wheeler's employment
and asked if he could "do that now, for the record." The court
agreed, as a accommodation to the witness. Pullen then testified
quite favorably for Wheeler. On the continued trial date,
Wheeler's defense counsel made no mention of Pullen and presented
the defense case without seeking leave to recall Pullen.
Furthermore, Pullen was not present in the apartment when Wheeler
was arrested. The court fails to see how the trial judge's
questioning of Pullen deprived Wheeler of the testimony of a
"critical" witness, especially given that Wheeler's counsel had the opportunity to
ask the court for leave to recall Pullen but chose not to do so.
Thus, Wheeler's petition is denied.
For the reasons stated above, the court denies Wheeler's
petition for a writ of habeas corpus [#1]. This case is
© 1992-2005 VersusLaw Inc.