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Weaver v. Nicholson

United States Court of Appeals, Seventh Circuit

June 15, 2018

Wendell Weaver, Petitioner-Appellant,
Walter Nicholson, Respondent-Appellee.

          Argued January 5, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 10100 - Sara L. Ellis, Judge. [*]

          Before Kanne, Rovner, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         Wend e ll Weave r was convicted of first degree murder and sentenced to forty years' imprisonment. In a petition for a writ of habeas corpus, he alleges that his constitutional rights were violated by the trial court's disqualification of his counsel of choice, the ineffective assistance of his replacement counsel, the state's use of certain testimony at trial, and the trial court's admission of "other crimes" evidence. The district court denied the petition. We affirm.

         I. Background

         Previous state court decisions exhaustively relate Weaver's case. (R. 20-16, Order affirming judgment of trial court, at 14-31; R. 20-25, Order affirming dismissal of postconviction petitions, at 25-55.) We provide only those facts relevant to this appeal and accept the state courts' factual findings as correct because Weaver has not presented clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002).

         A. Proceedings in the trial court

         Police officers arrested Wendell Weaver on August 12, 2003 for the murder of Randy Sanders. Before trial, the court decided two motions relevant to this appeal. First, the state moved to disqualify Weaver's attorney, Charles Murphy, on the ground that he represented a potential state witness, Rondell Traywick. The trial court heard argument and disqualified Murphy. Second, Weaver moved in limine to bar evidence that he pointed a gun-later identified as the murder weapon-at a police officer during an unrelated incident. The trial court denied the motion.

         At trial, Danny Callico-a friend of Sanders-took the stand. He testified that he and Sanders sold drugs together and that he was with Sanders when Sanders was fatally shot on April 4, 2002. That day Sanders had driven Callico and another associate, Lamont Delaney, to a McDonald's parking lot where the three of them smoked marijuana. Callico testified that Weaver fired shots into Sanders's car when Sanders stopped at an intersection after leaving the lot.

         In addition to Callico's testimony, the state also presented evidence linking cartridge casings recovered near the scene and bullets found in Sanders's body to a pistol police recovered from Weaver during an unrelated incident. During the trial, Officer Pinal described the recovery of the weapon. As he told it, on September 9, 2002, Pinal and another officer saw Weaver place a gun in his waistband outside a sandwich shop. Pinal testified that he and the other officer approached Weaver and identified themselves as police. As they approached, Weaver drew the gun and fled. Pinal further testified that Weaver pointed the handgun at him as he fled and later tossed the gun into a vacant lot. At trial, a firearms expert testified that shots fired from the pistol Pinal recovered from Weaver matched the casings and bullets recovered from the scene.

         Weaver's counsel attempted to undermine both Callico and Pinal on cross-examination. Callico admitted that he was a heroin dealer with an extensive criminal background. He also acknowledged that had initially told police that he did not know who the shooters were before identifying Weaver a year later. It also became clear that Callico had changed his justification for initially withholding from police that Weaver had killed Sanders. While Callico had told the grand jury he was afraid to tell police about Weaver's involvement, at trial he claimed he failed to do so because he planned to "take care of" Weaver. On cross, Officer Pinal acknowledged that he never had the gun or magazine tested for fingerprints and that, during the chase, he lost sight of Weaver for thirty seconds.

         Clifton Lewis, a bystander, also testified. He explained that he saw the passenger of one car shooting the driver of another car. He saw no one shooting from the street, and could not identify the shooter.

         During closing argument, Weaver's counsel emphasized the time gap between Sanders's murder and the recovery of the pistol. He also highlighted that Callico's unreliable testimony was the only direct evidence that Weaver shot Sanders. At the conclusion of the trial, a jury convicted Weaver of first degree murder.

         B. Direct appeal and collateral attacks in state court

         After his conviction, Weaver found little success in state court. On direct appeal, the Illinois appellate court affirmed his conviction. And the Illinois Supreme Court rejected his petition for leave to appeal that decision.

         Weaver then filed a counseled state post-conviction petition, see 725 Ill. Comp. Stat. 5/122-1, and a pro se petition for relief from judgment, see 735 Ill. Comp. Stat. 5/2-1401. Both petitions were dismissed. In a consolidated appeal, the Illinois appellate court affirmed the dismissals. The ...

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