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Malone v. Walls

October 21, 2009

DONCHII MALONE, PETITIONER,
v.
J.R. WALLS,*FN1 WARDEN, WESTERN ILLINOIS CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: George W. Lindberg Senior U.S. District Judge

Judge George W. Lindberg

MEMORANDUM OPINION AND ORDER

The Seventh Circuit Court of Appeals reversed this Court's denial of petitioner's habeas petition, and remanded the case for further proceedings on petitioner's ineffective assistance of counsel claims. Malone v. Walls, 538 F.3d 744 (7th Cir. 2008). Pursuant to the remand order, this Court conducted an evidentiary hearing. Having carefully considered the evidence presented at that hearing, the Court again denies the habeas petition.

I. Factual and Procedural Background

The Court begins with a summary of the proceedings at petitioner's criminal trial in state court. Petitioner was charged with murdering LaRoyce Kendle and Larry Lane, and was jointly tried with co-defendants Michelle Davis and Phillip Taylor. Petitioner was tried by a jury, while Davis and Taylor opted for a bench trial.

At trial, two primary witnesses testified for the prosecution: Antonio Stewart and Oneida Tate. There was no physical evidence linking petitioner to the crime.

Antonio Stewart was fourteen years old at the time of the murders, and sixteen at the time of the trial. Stewart testified that on the evening before the murders, he and victims Kendle and Lane had encountered defendants Michelle Davis and Phillip Taylor, who were rival gang members to Stewart, Kendle, and Lane. At that time, Lane took a hat off Taylor's head and set it on fire. Lane then gave the hat to Stewart, who threw it into the crowd, hitting Davis in the face. Davis told Stewart that she was going to get him.

Stewart testified that early the next morning, on July 22, 1986, he, Kendle, and Lane were sitting in a parked car when petitioner, Taylor, and Davis approached the car. After some words were exchanged, petitioner shot Lane twice, then shot Kendle twice. Taylor pulled out a gun and pointed it at Stewart, and Stewart ran away. After petitioner, Taylor and Davis ran away, Stewart returned to the scene and picked up Kendle, who said, "that bitch," and then died.

On cross examination by petitioner's attorney, Stewart admitted that petitioner had not been present during the altercation between the victims, Taylor, and Davis the previous evening. Stewart also admitted that immediately after the shots were fired, he yelled, "the bitch popped 'em, the bitch popped 'em," referring to Michelle Davis. Stewart admitted that when police officers interviewed him at the scene, he identified Taylor and Davis as having been involved, but did not identify petitioner to the police until approximately ten hours later, even though he knew petitioner. Finally, Stewart admitted that Davis was "somewhat" his girlfriend.

Oneida Tate testified that she lived in a second-floor apartment overlooking the crime scene. On the day of the murders, Tate saw Kendle, Lane, and Stewart talking with petitioner, Michelle Davis, and another man. Tate left her window, but returned when she heard gunshots. Tate saw Stewart, petitioner, Davis, and the other man running from the scene. Tate testified that Davis had a gun in her hand. Tate heard Stewart screaming, "The bitch popped 'em. The bitch popped 'em." Tate identified petitioner and Davis in lineups, but could not identify Taylor.

Petitioner rested without presenting evidence. Taylor then presented several witnesses in his defense who were not heard by the jury trying petitioner. These witnesses included Teddy Williams and Anthony Villanueva. Williams, a police officer, testified that when he interviewed Antonio Stewart at the scene of the murders after the shooting, Stewart had described the shooter as having a light complexion.

Outside the presence of petitioner's jury, Villanueva testified that he observed the shooting from his basement apartment. Villanueva saw six people at the scene, four of whom he knew: victims Kendle and Lane, Stewart, and defendant Michelle Davis. He testified that the other two individuals at the scene were men, and that he did not know them. He testified that he knew defendant Taylor, and that Taylor was not one of the other two men at the scene. Villanueva testified that he did not know a person named Donchii Malone, and that he would not know if one of the other two men at the scene was a person named Donchii Malone. When asked whether he saw any of the six individuals in the courtroom, Villanueva identified only Michelle Davis. Villanueva testified that the two men whom he did not know shot Lane and Kendle. Villanueva also testified that he heard Michelle Davis say "they got popped" immediately after the shooting.

The jury convicted petitioner of two counts of first-degree murder. The trial court acquitted Davis and Taylor.

After unsuccessfully pursuing appellate and post-conviction relief in state court, petitioner filed a federal habeas petition. Among other claims, petitioner raised ineffective assistance of counsel claims in his habeas petition. This Court dismissed petitioner's habeas petition.

The Court of Appeals reversed, and remanded petitioner's habeas petition for further proceedings. Malone v. Walls, 538 F.3d 744 (7th Cir. 2008). Specifically, the Court of Appeals instructed this Court to develop the record on the issue of whether petitioner had showed that his trial counsel's performance fell below an objective standard of reasonableness. Id. at 762. The Court of Appeals directed this Court to consider whether "counsel's cumulative errors rise to the level of ineffective assistance of counsel and ...


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