Wallace v. Pfister

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Chief Judge David R. Herndon on 5/23/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DIWONE WALLACE,
#B83019,
Petitioner,
v.

No. 14-cv-488-DRH

RANDY PFISTER,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Diwone Wallace, who is currently incarcerated in Pontiac
Correctional Center (“Pontiac”), brings this habeas corpus action pursuant to
28 U.S.C. § 2254 (Doc. 1). Petitioner is serving life imprisonment for two counts
of first degree murder. He now seeks reversal of his 2002 conviction, based on
the allegedly ineffective assistance of his trial and appellate counsel.

He also

seeks reconsideration of his petition for post-conviction relief. This matter is now
before the Court for a preliminary review of the petition.
I.

Background

Following a jury trial, petitioner was found guilty of two counts of first
degree murder (Doc. 1, p. 1). On August 29, 2002, petitioner was sentenced to a
term of natural life imprisonment. Petitioner’s conviction was affirmed on appeal
on May 28, 2004 (Doc. 1, p. 2). Petitioner sought review of the appellate court’s
decision in the Illinois Supreme Court. His petition for leave to appeal (“PLA”)

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was denied on October 6, 2004 (Doc. 1, p. 3). See People v. Wallace, 823 N.E.2d
977 (Ill. 2004) (Table).
Petitioner also challenged his conviction in a petition for post-conviction
relief, which he filed in St. Clair County, Illinois Circuit Court on September 13,
2004 (Doc. 1, p. 3). The trial court denied his petition following an evidentiary
hearing in October 2011. Petitioner sought review of the trial court’s decision
with the appellate court. The appellate court affirmed the trial court’s denial of
the post-conviction petition on September 12, 2013. See People v. Wallace, 2013
WL 5209828 (Ill. App. 2013) (unpublished). The Illinois Supreme Court denied
petitioner’s PLA on January 29, 2014 (Doc. 1, p. 3). See People v. Wallace, 3
N.E.3d 801 (Ill. 2014) (Table).
II.

The Petition

The instant habeas petition followed on April 28, 2014. In it, petitioner
seeks reversal of his conviction based on constitutional grounds that are primarily
related to the ineffective assistance of his counsel (Doc. 1, p. 12).

Petitioner

claims that: (1) the admission of statements made by a dying victim constituted
inadmissible hearsay which deprived him of a fair trial (Doc. 1, p. 5); (2) trial
counsel failed to call three witnesses who could have discredited the State’s key
witness (Doc. 1, p. 5); (3) appellate counsel failed to challenge the trial counsel’s
failure to call one of these witnesses (Doc. 1, pp. 6, 12); and (4) trial counsel
failed to call petitioner’s uncle to testify as an alibi witness (Doc. 1, p. 6).
III.

Discussion

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Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.” After carefully reviewing the petition and
exhibits, the Court concludes that the petition survives preliminary review.
Petitioner indicates that he has exhausted his state court remedies with respect to
the claims raised in his federal habeas petition. Furthermore, he appears to have
filed his petition in a timely manner. Given this, the Court finds that the petition
survives preliminary review.
IV.

Disposition

IT IS HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered (on or before
June 23, 2014). 1

This preliminary order to respond does not, of course,

preclude the State from making whatever waiver, exhaustion or timeliness
argument it may wish to present.

Service upon the Illinois Attorney General,

Criminal Appeals Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois
60601 shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
1

The response date Ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only. See SDIL-EFR 3.

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IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Signed this 23rd day of May, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.05.23
12:26:09 -05'00'
Chief Judge
United States District Court

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