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Willis v. Acevedo

March 1, 2010

TERRANCE L. WILLIS, PLAINTIFF,
v.
GERARDO ACEVEDO, WARDEN, HILL CORRECTIONAL CENTER, DEFENDANT.



The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Terrance Willis's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 regarding his conviction in Illinois state court in case no. 94 CR 21185. For the following reasons, Willis's petition is denied.

I. BACKGROUND

A. Facts

This case arises out of an incident that occurred on July 27, 1994, in which Terrance Willis ("Willis"), the petitioner, a member of the Black Stones street gang, allegedly fired a gun at Tyrone Rush ("Rush") and Demetrious McTizic ("McTizic"), former members of the rival Gangster Disciples street gang. Rush and a friend, Deandre Bishop ("Bishop"), had driven in Rush's car to a location in Chicago to pick up McTizic. Bishop went inside to get McTizic while Rush waited in the car; two men (one of whom Rush knew to be Willis) approached the car. Rush recognized Willis because they had once lived in the same neighborhood. Willis asked Rush whether he was a member of the Gangster Disciples, which Rush denied. Rush then saw Bishop and McTizic approaching the car when a group of 7 to 10 young men descended upon them. Bishop jumped onto the trunk of the car, and the group of young men began to hit McTizic on the head.

Rush testified that he saw Willis fire a gun at the car and shatter the window; pieces of glass hit Rush in the face. Rush began to drive away slowly, waiting for McTizic, who fell in the street. Rush and Bishop testified that they saw Willis stand over McTizic as he lay in the street and shoot downward at him. Rush drove off and collided with another vehicle on the next block, causing Bishop to fall off the car.

After the accident, Bishop identified Willis to the police as the shooter and told them that Willis had been the only person with a gun. The next day, Rush told police that Willis had been wearing green pants and a shirt with a red stripe; he identified Willis in a lineup at police headquarters. McTizic had been shot five times: twice in the abdomen, once in the shoulder, once in the ear, and once in the elbow.

B. Procedural History

1. Trial

Willis was tried to a jury and convicted of two counts of attempted murder in the first degree and one count of armed violence. He was sentenced to 40 years in prison for the first attempted murder count (regarding McTizic). The 40-year sentence had been extended by the trial court's finding that the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The second attempted murder count (regarding Rush) resulted in a consecutive 10-year sentence. Willis received a 30-year sentence for the armed violence count, to be served concurrently with the first attempted murder count.

2. Direct Appeal

On direct appeal, Willis raised only one issue that is repeated in his present petition -- that the evidence was insufficient to support the conviction. The Illinois Appellate Court affirmed. Willis filed a Petition for Leave to Appeal ("PLA") in the Illinois Supreme Court, again raising the sufficiency of evidence claim. The petition was denied.

3. Pro Se State Post-Conviction Motion

Willis filed a pro se post-conviction petition in state court in 1998, raising the following claims that are relevant to the present petition:

(1) Trial counsel was ineffective for failing to call LaVonia Noble as a witness;

(2) Trial counsel was ineffective for failing to investigate Willis's injury from a gunshot wound to the lower leg, which would have prevented him from committing the crime;

(3) Trial counsel was ineffective for denying Willis his right to testify;

(4) The trial court erred in not granting a mistrial when it learned that a juror had read a newspaper article about the case; and

(5) Appellate counsel was ineffective for failing to raise these issues on direct appeal.

The trial court dismissed the petition, and Willis appealed, raising only the claims regarding failure to call LaVonia Noble ("Noble") and the denial of his right to testify. After the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Willis filed a supplemental claim that his consecutive and extended term sentences violated Apprendi. The Illinois Appellate Court held that Willis had stated a constitutional claim regarding his right to testify and remanded for an evidentiary hearing. The court affirmed the dismissal of the ineffectiveness claim regarding Noble, without prejudice for Willis to restate his claim. The court vacated Willis's extended term sentence on the first attempted murder count as violative of Apprendi, but held that Apprendi did not apply to his consecutive sentences.

Willis filed a PLA in the Illinois Supreme Court, raising only the Apprendi claim, which was denied. Meanwhile, the State filed a PLA, arguing that the appellate court erred in holding that Apprendi applied retroactively to Willis's case. The Illinois Supreme Court denied the PLA, but issued a supervisory order directing the appellate court to vacate its judgment and reconsider the case in view of Illinois Supreme Court precedent holding that Apprendi did not apply retroactively. The appellate court again held that Willis had stated a viable claim regarding his right to testify, declined to ...


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