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Wallace v. Melvin

United States District Court, S.D. Illinois

April 6, 2017

DIWONE WALLACE, Petitioner,
v.
MICHAEL MELVIN, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON UNITED STATES DISTRICT JUDGE

         In 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:

         1. The admission of statements made by victim Wilson deprived him of a fair trial.

         2. 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.

         3. Trial counsel was ineffective in failing to call his uncle, Calvery Brown, as an additional alibi witness.

         4. Appellate counsel was ineffective in failing to argue that trial counsel failed to call Feron Stanley as a witness.

         Relevant Facts

         This 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.[1] 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. §2254(e).

         Five 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.

         Terrance 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.

         Tina Jackson died instantly from a shotgun blast to the head. Wilson died later that day from a shotgun blast to his back.

         Tina 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 Diwone Smith.

         Petitioner 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.

         Other facts will be discussed as necessary in the analysis of petitioner's arguments.

         Appeal and Postconviction Petition

         On 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.

Ex. 2.

         After 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).

         In 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 ...


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