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Dwayne T. Allen v. United States of America

March 6, 2012


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


Tuesday, 06 March, 2012 02:37:18 PM

Clerk, U.S. District Court, ILCD


On December 13, 2010, Petitioner, Dwayne T. Allen, filed a pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. Petitioner also filed a Motion to Vacate (#3) which provided case law authority in support of his arguments. Petitioner claims that his trial counsel was ineffective because he did not file a motion to suppress a videotape of an interview with Petitioner which showed him rubbing his hands on his pants and attempting to avoid a gunshot residue test. Petitioner also claims that his appellate counsel was ineffective for failing to argue that the prosecutor's closing argument was improper. On January 12, 2011, the Government filed its Response to Petitioner's Motion under 28 U.S.C. § 2255 (#4). On February 11, 2011, Petitioner filed a Reply (#6) and his own affidavit (#5). This court has carefully considered the arguments raised by the parties and the record in this case. Following this careful and thorough review, Petitioner's Motion to Vacate, Set Aside or Correct Sentence (#1) and Motion to Vacate (#3) are DENIED.


March 5, 2008, Petitioner was charged by indictment in Case No. 08-CR-20013 with the offense of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). John Taylor of the Federal Defender's office was appointed to represent Petitioner. A jury trial was held on June 16-18, 2008. The trial focused on whether Petitioner possessed a gun because he stipulated the other two elements of the offense, that he had a prior felony conviction and that the gun had traveled in interstate commerce.

At trial, Jennifer Schoon testified that she was a police officer with the Kankakee City Police Department. On January 15, 2008, she responded to a 911 report of shots fired at a residence in Kankakee. When she arrived at the residence, there were eight to ten people in the area. One of the witnesses told her that Petitioner was shooting inside the house, but was gone. Zach Johnston testified that he was a police officer with the Kankakee City Police Department and also responded to the call on January 15, 2008. A female witness at the residence told him that Petitioner had shot rounds off inside the residence and Petitioner and another subject had fled to the south prior to the officers' arrival. Johnston was informed that the shooting took place in the bathroom of the residence and observed two bullet holes in the ceiling of the bathroom. Johnston received information that two subjects had been detained by agents with the Kankakee Area Metropolitan Enforcement Group (KAMEG). Johnston searched the area where the two subjects were found and located a firearm on a sand pile. The gun was admitted into evidence.

Jeffrey Martin testified that he is employed by the Kankakee City Police Department and is assigned to KAMEG. He testified that he and another KAMEG agent, Joseph Powers, responded to the call on January 15, 2008. He said that, while traveling to the area, he saw two male subjects walking down the alleyway. He approached them and they identified themselves as Petitioner and Jammy Brown. Martin transported Petitioner and Brown back to the residence and turned Petitioner over to the Kankakee police officers on the scene. Martin testified that the weather was very cold and Petitioner and Brown were not wearing coats, hats or gloves.

Timothy Kreissler testified that he is a detective with the Kankakee Police Department. He testified that he and Detective Austin interviewed Petitioner at the Kankakee City Police Detective Bureau. The interview was videotaped and the videotape was played for the jury. Earlier, outside the presence of the jury, the prosecutor, Rhonda Coleman, informed this court that there were certain portions of the interview that she and defense counsel had discussed and, while these portions were being played, the audio would be muted. She explained that these portions contained prejudicial material and she and defense counsel had agreed to mute the audio during these portions of the videotape. This court explained this procedure to the jury before the videotape was played. The videotape showed that, during the interview, Petitioner denied ever seeing the gun or hearing the gunshots, and he accused the other witnesses of lying. The police stopped their questioning at Petitioner's request after approximately an hour. But before they returned him to jail, the officers told him that a gunshot residue test would be administered to his hands. Petitioner strenuously objected and Kreissler told him that he was not entitled to refuse the test. The video showed Petitioner wringing his hands, rubbing them on his pants, and hiding them under his shirt. He physically resisted the officers' attempts to swab his hands and insisted he had the right to have an attorney present.

Lucinda McBride testified that a lot of people were gathered at her house on January 15, 2008. People had been playing cards and drinking alcohol. McBride testified that an incident occurred between Petitioner and Larry Smith. She heard a gunshot and saw her brother, Jammy Brown, trying to get the gun away from Petitioner. She then saw Petitioner and Brown go out the back door. Wardell Mason testified that he was present at the residence and saw Petitioner and Larry Smith fighting in the bathroom. He saw Petitioner pull out a gun and shoot it. Mason testified that Jammy Brown grabbed Petitioner and tried to take the gun away from him. Larry Smith testified that he was at McBride's residence on January 15, 2008, and he and Petitioner "got into a little fight." Smith testified that Petitioner had a gun and shot it twice. Both Mason and Smith identified the gun found by Johnston as the gun Petitioner had on January 15, 2008. Tony Williams testified that he was at the residence on January 15, 2008, and saw Petitioner with a gun in his hand. Williams stated that he saw Jammy Brown take Petitioner out the door.

Mary Wong testified that she is a forensic scientist with the Illinois State Police, Forensic Sciences Division. Wong testified that she analyzed the sample taken from Petitioner and the test was negative for gun residue. She testified that particles can be removed from hands by wiping the hands on a surface. Wong testified that she reviewed the videotape of Petitioner's interview and testified that Petitioner "was running his hands along the side of his pants which would, could easily wipe the particles off his hands." Wong also testified that Petitioner's actions in rubbing his hands together and putting his hands in his shirt could have easily removed the particles. Wong testified that Petitioner's actions in resisting the test made it difficult to properly administer the test. Alison Rees testified that she is a fingerprint specialist. She testified that she tested the gun, the cartridges and the cartridge case for fingerprints and did not find any latent fingerprints that were suitable for identification purposes.

Jammy Brown testified that McBride is his sister and he was present at McBride's residence on January 15, 2008. Brown testified that he and Petitioner are friends. Brown testified that he has felony convictions for robbery, for driving while revoked, and for retail theft. Brown testified that he heard noises coming from the bathroom and saw Mason holding Petitioner. He grabbed Mason off of Petitioner and then heard a gunshot. Brown testified that he saw that Petitioner had a firearm and grabbed him in a bear hug to drag him out of the bathroom and keep him from shooting anybody. He pleaded with Petitioner to give him the gun and eventually Petitioner handed him the gun. Brown testified that he and Petitioner ran out of the residence and he tossed the gun in an alleyway. The police then arrived. Brown testified that the officers searched his person and found a couple bags of marijuana. Brown testified that he spoke to a police officer the next day and told the officer that he did not know anything about the gun. Brown testified that he was not truthful when he spoke to the officer that day. Brown testified that he did not want to have anything to do with the situation. He testified that it also had something to do with Petitioner being his friend. Brown testified that he gave a truthful statement on February 22, 2008 to Special Agent Jeff Marshall. Brown told Marshall that he had seen a firearm and that Petitioner fired the shot and that he took the firearm and threw it.

Petitioner did not testify or present any witnesses at trial. His counsel cross-examined most of the witnesses who testified and was able to demonstrate inconsistencies in their testimony and instances of faulty recollection. During cross-examination of Jammy Brown, Brown admitted that he could be charged with felon in possession of a firearm. Brown stated that ...

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