January 5, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 C 10100 - Sara
L. Ellis, Judge. [*]
Kanne, Rovner, and Hamilton, Circuit Judges.
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.
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).
Proceedings in the trial court
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.
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.
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.
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.
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.
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.
Direct appeal and collateral attacks in state court
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.
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 ...