United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE
2001, a jury in St. Clair County, Illinois, convicted Diwone
Wallace of the first degree murders of Tina Jackson and
Montez Wilson. He was sentenced to natural life imprisonment.
He filed a petition for habeas relief pursuant to 28 U.S.C.
§2254 (Doc. 1), raising the following grounds:
admission of statements made by victim Wilson deprived him of
a fair trial.
Trial counsel was ineffective in failing to call witnesses
Feron Stanley, Barbara Hunter, and Mario Fulghum, who would
have discredited the state's two key witnesses.
Trial counsel was ineffective in failing to call his uncle,
Calvery Brown, as an additional alibi witness.
Appellate counsel was ineffective in failing to argue that
trial counsel failed to call Feron Stanley as a witness.
summary of the facts is derived from the detailed description
by the Appellate Court of Illinois, Fifth District, in its
Rule 23 Orders affirming petitioner's conviction on
direct appeal and affirming the denial of his postconviction
petition. Copies of those Orders are attached to Doc. 11 as
Exhibits 1 and 6. The state court's factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence, which petitioner has not done. 28 U.S.C.
men entered the home of Tina Jackson and Dwayne Wilson during
the early morning hours of December 5, 1999. Jackson and
Wilson were shot at close range with a shotgun. Defendant and
four other men were charged with first-degree murder and
tried separately. A sixth man, Terrance Luster, plead guilty
to home invasion under an agreement whereby he would testify
against the other five men and the state would request a
sentence of seven years on the home invasion charge.
Luster testified that, at about 2:30 a.m. on December 5,
1999, five men, including petitioner, came to his home and
asked to use his walkie-talkies. Luster accompanied the men
to the victims' home and acted as lookout. One of the men
kicked in the door, and the five, excluding Luster, went in.
After about ten minutes, Luster called one of the other men
on the walkie-talkie, and was told to bring a bag from the
porch to the door. As he approached the house, he heard a
female scream and a shotgun blast. When he got to the door,
he saw petitioner pointing a sawed-off shotgun at Montez
Wilson. Wilson turned as if to run, and petitioner shot him.
Jackson died instantly from a shotgun blast to the head.
Wilson died later that day from a shotgun blast to his back.
Jackson's brother, aged 12, was in the house at the time
of the shooting. He ran to the nearby home of his mother,
Trina Jackson. Trina Jackson and her sister Tiffany Jackson
immediately went to Tina Jackson's house. Tiffany Jackson
entered first. Her eyes met the eyes of Montez Wilson, and
Wilson said, “Diwone Smith.” Trina Jackson then
entered the house. She asked Wilson what happened, and Wilson
replied, “Diwone Smith shot me.” When a police
officer arrived, Trina Jackson heard Wilson tell the officer
that Diwone Smith shot him. As Wilson was being carried from
the home on a stretcher, his sister Shirley Collins, heard
him say, “Diwone shot me.” The state presented
evidence that petitioner Diwone Wallace was also known as
testified at his trial. He testified that he was at his
grandmother's house at the time of the murders. He said
that he was there all evening the evening before the murders,
except that he left at around 7:00 or 8:00 in the evening to
buy cigarettes and a snack for his son. His son was at the
home of petitioner's mother that night. Petitioner took
the snack to his mother's house. After about 40 minutes,
he returned to his grandmother's house, where he stayed
all night. His grandmother, Victoria Wallace, and his aunt,
Brenda Brown, testified that petitioner was at Victoria
Wallace's house all night, sleeping on the sofa.
facts will be discussed as necessary in the analysis of
and Postconviction Petition
direct appeal, Wallace raised the following points:
1. The admission of the hearsay statements of Montez Wilson
that petitioner shot him denied him a fair trial.
2. Trial counsel was ineffective in failing to introduce as
substantive evidence the prior inconsistent statements of
witness Akhenaton Wallace.
3. Trial counsel was ineffective in failing to call Feron
Stanley and Barbara Hunter as witnesses.
his conviction was affirmed, petitioner, through counsel,
filed a Petition for Leave to Appeal which raised only the
first point regarding the admission of Montez Wilson's
statements. Ex. 5. The Supreme Court denied the PLA on
October 6, 2004. People v. Wallace, 823 N.E.2d 611
(Table) (Ill. 2004).
September 2004, petitioner filed a pro se postconviction
petition which raised a number of issues. Counsel was
appointed to represent him. Counsel filed three amended
petitions and a supplement to the third amended petition. As
is relevant here, the third amended petition alleged that
trial counsel was ineffective in failing to call Feron
Stanley, Barbara Hunter, Mario Fulghum and Calvery Brown as