United States District Court, C.D. Illinois, Springfield Division
PATRICK B. WALLACE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Richard Mills Richard Mills United States District Judge
have, before the Court, Petitioner Patrick B. Wallace's
motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255.
Petitioner filed a motion under 28 U.S.C. § 2255
that raised twelve separate grounds for relief. His
memorandum in support of the motion is 103 pages, in addition
to a number of attachments including affidavits. The
Government filed an initial response and suggested that the
Court appoint counsel and conduct an evidentiary hearing to
allow the Petitioner to present any evidence in support of
Petitioner retained private counsel. At the evidentiary
hearing, he declined to present any testimony from any of the
persons who allegedly completed affidavits that were attached
to his motion and presented only the testimony of his trial
counsel, R. John Alvarez, and his own testimony.
the evidentiary hearing, the Petitioner fired his retained
counsel and was granted leave by the Court to proceed pro
se. He then filed a 30-page supplemental memorandum.
twelve grounds asserted by the Petitioner in his initial
motion include: (1) the denial of his motion for new trial
mandates reversal and entitlement to a new trial; (2) counsel
was ineffective for failing to hold the Government to its
burden to make a reasonable effort to locate the confidential
informant, thereby violating the Petitioner's right to
present a complete defense; (3) counsel was ineffective for
failing to request a material witness warrant to compel the
confidential informant's attendance and testimony at
trial; (4) counsel was ineffective for failing to present the
testimony of three more witnesses in support of the
Petitioner's theory of defense; (5) counsel was
ineffective for failing to investigate and effectively cross
examine and question witnesses presented by both the
Government and the Petitioner in support of Petitioner's
theory of defense; (6) counsel was ineffective for failing to
raise Petitioner's claim under Brady v. Maryland
on direct appeal; (7) counsel was ineffective for failing to
file a motion under the Jencks Act at the conclusion of the
Government witness testimony; (8) counsel was ineffective for
presenting inculpatory evidence against Petitioner without
simultaneously presenting the exculpatory evidence in support
of his theory of defense; (9) counsel was ineffective for
failing to object to Government counsel's reference to
facts not supported by the evidence in the record during
closing arguments; (10) counsel on direct appeal was
ineffective for failing to challenge the sufficiency of the
evidence; (11) counsel was ineffective for failing to
challenge the Government's constructive amendment of the
Petitioner's indictment; and (12) counsel was ineffective
for failing to submit evidence favorable to the
Petitioner's theory of defense.
PROCEDURAL HISTORY AND BACKGROUND
Motion to suppress
January 10, 2012, the Petitioner was charged with possession
with intent to distribute 280 grams of crack cocaine after
police officers conducted two controlled buys from him (using
a confidential source) and executed a search warrant at his
motion to suppress filed prior to trial, the Petitioner
claimed that the Government's confidential source, Andrew
Wallace, had sworn out an affidavit and recorded a video
saying he had lied about receiving drugs from the Petitioner
during the controlled buys prior to his arrest.
States Magistrate Judge Byron G. Cudmore conducted a
Franks hearing. The lead DEA agent, Springfield
Detective Tom Bonnett, testified the DEA had been paying
Andrew Wallace for his services as a confidential informant.
Bonnett testified that, after the Petitioner was indicted,
Andrew Wallace became concerned for his safety because he had
been receiving threats. Judge Cudmore overruled the
Petitioner's hearsay objection and allowed counsel for
the Government to continue questioning Detective Bonnett
about Andrew Wallace's concerns for his safety.
Bonnett further testified that, because of Andrew
Wallace's safety concerns, the DEA provided him with $5,
000 to leave Springfield. Upon learning he was in St. Louis,
Bonnett advised Wallace by phone that he intended to serve
him with a subpoena to appear at the suppression hearing.
Andrew Wallace hung up the phone when Bonnet mentioned the
subpoena. Bonnett attempted to call back several times but
Wallace did not answer.
18, 2012, the magistrate judge issued a Report and
Recommendation. In discussing Andrew Wallace's absence
from the hearing, the Court noted:
The CS did not appear at the hearing, although both parties
attempted to secure the CS's voluntary attendance. The
Court held a status conference on June 11, 2012, during which
the Court discussed the possibility of either party
requesting a material witness warrant, but neither party
requested such a warrant.
Case No. 12-cr-30003, Doc. No. 30, at 2. In the Report and
Recommendation, Judge Cudmore determined that the
“evidence introduced at the hearing actually negated
[Andrew Wallace's] retraction” and found that
Wallace's affidavit lacked credibility.
magistrate judge recommended that the motion to suppress be
denied. On August 28, 2012, this Court adopted the Report and
Recommendation and denied the motion to suppress.
Motions in limine
to trial, both parties filed several motions in limine
regarding the use of evidence generated by Andrew Wallace. On
September 17, 2012, the Petitioner filed a motion in limine
regarding the admissibility of the videotape of Andrew
Wallace, wherein he recanted statements he made to the
Government during its initial investigation and claimed the
Petitioner did not sell drugs to him on December 15, 2011.
pretrial hearing three days later, Mr. Alvarez-in the context
of providing this Court background about a disagreement he
was having with the Petitioner-told the Court that Andrew
Wallace was under the control of the defense and not being
I never indicated that . . . we wouldn't address the
issues in the videotape during trial, only that to ask to
have the videotape introduced without offering the witness,
who is under our control, despite being the confidential
source in this matter, doesn't make sense.
The confidential source, if he indicated what Mr. Wallace has
indicated to him, is misrepresenting the facts to Mr.
Wallace. I've had one conversation with Andrew Wallace,
who is the individual we're talking about. He was suppose
to come to my office. He never did.
He had delivered a handwritten statement. He then asked me to
meet him at some location in either East St. Louis or St.
Louis and discuss the case with him. I said I wasn't
going to do that. I asked him to come to my office. And I
said at that point in time I would take a taped statement
that I did have to disclose to the prosecution.
That's not what he represented to Mr. Wallace. He
represented to Mr. Wallace that . . . I was refusing to take
a video statement from him or a taped statement and refusing
to see him. [T]hat's not true.
As to hiring an investigator to go down there and talk to
him; neither does that make sense since we have a witness
that Mr. Patrick Wallace has been in contact with, and other
members of his family. And obviously by providing to the
defense, and his sworn statement, written statement in the
past, is cooperating with us. . . .
I've asked that he contact me. He never has. One time I
did attempt to contact him, he was in a restaurant, he was
eating. When I identified myself, he started to mumble, then
he hung up. And that's the last direct contact I've
attempted to have with that gentleman.
Doc. 130, 13-15.
September 26, 2012, this Court ruled that the videotape was
inadmissible as hearsay and did not fall under any of the
hearsay exceptions listed in Federal Rule of Evidence 803.
parties filed motions in limine which pertained to calling
Andrew Wallace as a witness and whether the Government would
be permitted to play and reference the video and audio
recording made by Wallace during the controlled buys. The
Court (1) ruled that Petitioner was prohibited from referring
during opening statements to any anticipated testimony from
Andrew Wallace; (2) reserved ruling (until the close of the
Government's case) on the Government's motion to
preclude the Petitioner from calling Andrew Wallace as a
witness; (3) denied as moot the Petitioner's motion to
exclude the audio and video recordings of the drug buys made
by Andrew Wallace as well as Petitioner's motion to
preclude the Government's witnesses from testifying about
out-of-court statements made by Andrew Wallace, after the
Government stated it would not admit any of Andrew
Wallace's out-of-court statements, but would merely play
a portion of the video recording without the accompanying
Order entered on October 10, 2012, the Court specifically
found that Andrew Wallace was not under the control of either
October 16, 2012, after a four-day trial, the jury found the
Petitioner guilty. The Government's evidence at trial
consisted of law enforcement witnesses who testified about
the controlled dug purchases and the execution of the search
warrant, in addition to various exhibits which included a
portion of the silent video.
evidence showed that on December 15, 2011, police
investigators used Andrew Wallace to make a controlled
purchase of crack cocaine from his uncle, Petitioner Patrick
Wallace, out of a residence located at 700 North 14th Street
in Springfield, Illinois.
met with Andrew Wallace that morning and provided him with
$1, 250 of pre-recorded Official Advance Funds. The officers
searched Andrew Wallace and placed an audio/video recorder on
searched Andrew Wallace's car and maintained surveillance
of it as he drove directly to the Petitioner's residence,
where officers had set up perimeter surveillance around the
house. Officers including Detective Bonnett also positioned
themselves outside of the house in order to monitor the audio
portion of the recording.
observed Andrew Wallace enter the house and exit about 20
minutes later. They followed him back to their office where
they searched him again. Andrew Wallace turned over the 22
grams of crack cocaine he had just purchased. He no longer
possessed the pre-recorded funds. Officers sought and
obtained a search warrant for the residence at 700 North 14th
to executing the search warrant, the officers arranged for
Andrew Wallace to conduct another controlled purchase of
crack cocaine to ensure that there were still drugs in the
around 8:30 p.m. on December 15, officers met with Andrew
Wallace at the DEA Office. They searched his car, placed the
same audio/video recording device on his body and provided
him with $1, 250 of pre-recorded Official Advance Funds.
used the same protocol they used earlier in setting up
surveillance of the residence.
Bonnett monitored the audio recording from outside of the
house. He recognized Andrew Wallace's voice and the
Petitioner's voice as they were speaking. Bonnett had
spoken with the Petitioner in the past.
Wallace again exited the residence about 20 minutes after
arriving. Officers followed him back to the DEA office,
searched him, found crack cocaine and found none of the
reviewing the recording, Detective Bonnett was able to
identify by sight Andrew Wallace and the Petitioner, in
addition to Jerome Wallace, whom he believed to be the
trial, over the Defendant's objection, the Government
played part of the video recording of the second controlled
buy. Mr. Alvarez stated the Defense had no objection as long
as only the video portion played.
Bonnett identified the three men shown in the video and
stated the video does not show anyone else entering the home.
Jerome Wallace and the Petitioner were standing close to the
microwave in the kitchen. He also testified the video showed
the Petitioner just prior to what appears to be Andrew
Wallace receiving crack cocaine.
Government introduced several still photos taken from the
video. Bonnett testified the photos depict the Petitioner
standing in the kitchen next to a microwave containing a
measuring cup with an off-white substance in it, a food
sealer, and what appears to be cocaine in bags. Bonnett
testified one of the photographs depicts Wallace looking at
the microwave while it is lit up with a green light.
officers executed the search warrant approximately an hour
after the second controlled buy was completed. When the
Springfield SWAT team entered the house, they found the
Petitioner in the only bathroom shaving his head. Upon seeing
the officers, the Petitioner ran in to an adjacent room. The
officers apprehended the Petitioner and secured him in the
front room, along with two other individuals: Jerome Wallace
and Sandy Johnson. Officers searched every room in the house.
officers discovered an active security surveillance system in
and outside of the house. In the southwest bedroom, officers
found a 20-inch surveillance monitor displaying the outside
of the house, a surveillance clock with a mini camera inside
and an activated DVR recorder in a closet, which was
recording the security camera footage. In the kitchen,
officers found cabling, a monitor and a remote control. In
the living room, a 73-inch television was showing the
surveillance of the outside of the house.
front door of the southwest bedroom, officers observed a sign
that said “No matter what, always knock before you
enter this room. Wait on a come in. Thanks, P.J.” Doc.
No. 133, at 268.
bed in the southwest bedroom, officers found a pair of jeans
containing a wallet. The wallet contained identification for
the Petitioner and his mother. In one of the jeans'
pockets, the officers found marijuana and crack cocaine.
jeans also contained $160 of the pre-recorded funds-one bill
from the first controlled buy and six bills from the second
same bedroom, officers found a second wallet in a plastic
filing cabinet. That wallet also contained identification
documents for the Petitioner: one with the North 14th Street
address and one with an address of 150 South Durkin Drive in
Springfield. The officers also located mail addressed to the
filing cabinet, officers found $980 of their pre-recorded
funds from the second buy. The filing cabinet also contained
more than a pound of crack and powder cocaine as well as
marijuana. Throughout the house, the officers found a total
of 697 grams of cocaine and crack cocaine, worth
approximately $70, 000. Officers also located watches and
DVDs in the cabinet.
the closet of the bedroom, officers found more than 20 pairs
of shoes and several items of men's clothing sized to fit
a large man. In the same bedroom, officers also located two
cell phones, four laptop computers, an empty Smith and Wesson
gun case, handgun ...