that, upon entering the apartment, he saw Wheeler walking out of a bedroom and a woman, later
identified as Wheeler’s fiancée Cherise Walls, standing in an open kitchen. Zavolokoff asked
Wheeler if he resided in the apartment, and Wheeler responded “yes.” Zavolokoff showed
Wheeler the search warrant and searched Wheeler’s person. He recovered three house keys, two
of which fit back doors to the apartment, a payroll check from J.P.C. Industries, Inc., payable to
Willie Wheeler at 8100 South Drexel, and $290 in currency. In response to questions from the
officers, Wheeler stated that he had a nine millimeter pistol under his mattress in the bedroom
and that there were no narcotics in the apartment.

Zavolokoff and another officer then searched the bedroom that Zavolokoff had seen
Wheeler exiting. The officers found a loaded nine millimeter pistol under the mattress and an
‘Uzi assault rifle with three clips in a gun case under the bed. They also recovered an open
cardboard box on the night stand containing a plastic bag of white powder the officers suspected
to be heroin, a bag of a substance the officers suspected to be crack cocaine, several plastic bags,
two plastic bottles, a digital gram scale, and an electric grinder with white powder residue. They
also found nine boxes of live ammunition in the closet. Zavolokoff testified that during the
search of the bedroom, he observed both men’s and women’s clothing.

Zavolokoff then placed Wheeler under arrest and told him about the items found in the
bedroom. According to Zavolokoff, Wheeler stated that “the crack cocaine was his, the heroin
was not, the nine millimeter was his, and the Uzi was not.” At the police station, Wheeler told
police where he had purchased the nine millimeter and the crack cocaine and again denied
owning the assault rifle.

At Wheeler’s bench trial, the parties stipulated that a forensic chemist would testify that


constitutional error, without regard to prejudice when the accused is denied counsel at a “critical
stage of his trial.”

In rejecting Wheeler’s appeal, the Illinois Appellate Court held that Wheeler was not
prejudiced by the trial judge’s questioning of Pullen. The court held that, regardless of Pullen’s
testimony,

the evidence overwhelmingly established defendant’s guilt. Officer Zavolokoff testified

that defendant admitted he resided in the apartment and owned cocaine found there. The

officer found keys to the apartment on defendant’s person. Besides the large quantities of
cocaine and heroin found, the police also recovered drug paraphernalia and weapons from
the bedroom they saw defendant exiting. Given this evidence, the State has met its

burden of showing that the court’s questioning of Pullen was harmless beyond a

reasonable doubt.

This holding is “at least minimally consistent with the facts and circumstances of the case.”
Spreitzer, 114 F.3d at 1442, Thus, Wheeler’s claim must fai] unless the judge’s questioning of
Pullen occurred during a “critical stage” of Wheeler’s trial. The court holds that it did not.

The record shows that Pullen, whose name was absent from the list of witnesses in
Wheeler’s answer to discovery, appeared in court at a time when defense counsel was not
present. When asked if he could return at a later time, Pullen said that he was there as a character
witness and to substantiate Wheeler’s employment and asked if he could “do that now, for the
record.” The court agreed, as a accommodation to the witness. Pullen then testified quite
favorably for Wheeler. On the continued trial date, Wheeler’s defense counsel] made no mention
of Pullen and presented the defense case without seeking leave to recall Pullen. Furthermore,

Pullen was not present in the apartment when Wheeler was arrested. The court fails to see how

the trial judge’s questioning of Pullen deprived Wheeler of the testimony of a “critical” witness,


circumstances of the case.” Spreitzer v. Peters, 114 F.3d 1435, 1442 (7" Cir. 1997).
Il. Background

A. Procedural History

Following a bench trial in the Circuit Court of Cook County in 2000, Wheeler was
convicted of two counts of possession of a controlled substance (cocaine and heroin), with intent
to deliver. He was sentenced to concurrent prison terms of ten and seven years respectively.
Wheeler appealed his conviction to the Illinois Appellate Court, arguing that the trial judge’s
questioning of a “critical” defense witness at a time when Wheeler’s counsel was not present
denied him of his right to the effective assistance of counsel, and that the judge abandoned his
role as an impartial arbiter and assumed the role of an advocate. On June 20, 2002, the appellate
court affirmed Wheeler’s conviction and sentence. People v. Wheeler, No. 1-00-2759, slip op.
(ll. App. 1“ Dist. 2002). On October 2, 2002, the Illinois Supreme Court denied Wheeler’s
petition for leave to appeal.

B. Facts

When considering a habeas petition, the court must presume that the state courts’ factual
determinations are correct unless the petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7* Cir. 2002).
Wheeler has not presented clear and convincing evidence to rebut this presumption. Thus, the
court relies on the Illinois Appellate Court’s recitation of the facts. Wheeler, No. 1-00-2759, at 1-
6.

On March 6, 1999, approximately six Chicago police officers executed a search warrant

at an apartment at 8100 South Drexel Avenue in Chicago. Officer Nicholas Zavolokoff testified


he tested the substances recovered from the apartment. One bag weighed 123 grams and tested
positive for cocaine. The other bag weighed 19.9 grams and tested positive for heroin.

After the state rested its case, the trial judge granted Wheeler’s motion for a directed
finding of not guilty as to one count of armed violence with the assault rifle. The judge then
continued the case until the following week so that defense counsel could present the testimony
of Wheeler and Cherise Walls on the same day.

On the next scheduled trial date, Wheeler’s retained counsel was not present. The judge
asked Wheeler if he wanted a continuance so that his attorney could be present, and Wheeler
replied that he did. Wheeler’s work supervisor, Joe Pullen (“Pullen”) was present that day, and
the judge told Pullen that the case would be continued and asked him to come back in a month.
Pullen was not listed on Wheeler’s answer to discovery as a potential defense witness at trial.
Pullen stated that he thought he was present as a character witness and to substantiate Wheeler’s
employment. Pullen asked, “Is it possible that I could do that now, for the record?” The judge
asked if the prosecutor had any objection, and the prosecutor replied that he did not. Pullen was
then sworn, and the following exchange took place:

COURT: Could you state your name and spell your last name for the record?

PULLEN: My name is Joe Pullen, P-u-l-l-e-n.

COURT: All right. Mr. Pullen, could you let us know what your purpose is here today?

PULLEN: My purpose was to serve as.a character witness for Mr. Wheeler and to

substantiate his employment with the Safety Co. Company.

COURT: All right. Could you do that?

PULLEN: Well, Willie has worked for the company for about a year and a half now,

pretty close to it. And he has worked out surprisingly. I didn’t expect to get the

performance trom him that I did. He has moved from a service technician’s position to
office sales and training. He has been, which surprised me through his work — he comes
to work on time everyday. I think a lot of him.

COURT: Thank you. State, do you have any cross examination?
MR. AUSTIN [Assistant State’s Attomey)]: Sir, you weren't present on the date that Mr.



especially given that Wheeler’s counsel had the opportunity to ask the court for leave to recall
Pullen but chose not to do so. Thus, Wheeler’s petition is denied.
CONCLUSION
For the reasons stated above, the court denies Wheeler’s petition for a writ of habeas

corpus [#1]. This case is terminated.

Enter: Ba LA Aa~

CJOAN HUMPHREYTEFKOW
United States District Judge

Date: January 5, 2005


Minute Order Form (06/97)

NI

United States District Court, Northern District of Illinois

vente Magistrate Judge Joan H. Lefkow “than Awigned Sudge

CASE NUMBER 03 C 1837 DATE 1/5/2005
CASE Wheeler vs. Walls
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) a Answer briefto motiondue___. Reply to answer briefdue___

(4) oO Ruling/Hearingon___setfor___ att

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor__ at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor sat

(7) im} Trial[set for/re-set for]on___—__aat

(8) Oo (Bench/Jury trial] [Hearing] held/continuedto__—__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) OFRCP41(a)(2).

(10) a {Other docket entry] Enter Memorandum Opinion and Order, For the reasons stated in the

Memorandum Opinion and Order, petitioner’s petition for writ of habeas corpus is denied. Petition is
dismissed and case is terminated.

al)

No notices required, advised in open court.

{For further detail see order attached to the original minute order.]

2

No notices required. number of notices

JAN 0 6 2005

dave dockered

o | Notices mailed by judge’s staff.

Nolified counsel by telephone.

Docketing to mail notices.

ov | Mail AO 450 form.

Copy to judge/magistrate judge.

ys/2005

b Pat ate mailed notice
courtroom
MD deputy’s J wp
initials

Date/time received in
central Clerk’s Office

tailing deputy initials



Wheeler was arrested, is that right?

PULLEN: No.

AUSTIN: You were not present then?

PULLEN: No.

The judge then excused Pullen and continued the trial to a date six weeks later. When the trial
resumed, Wheeler's counsel was present, but he neither mentioned Pullen’s testimony nor
requested that Pullen be recalled as a witness.

III. Discussion

The Sixth Amendment of the United States Constitution guarantees all criminal
defendants “the Assistance of Counsel.” Wheeler contends that the trial judge violated his Sixth
Amendment right to the assistance of counsel by questioning Pullen while Wheeler’s counsel
was absent from the courtroom and without obtaining from Wheeler a waiver of his right to
counsel. The entirety of his claim is that, “On the second day of trial, the trial judge continued
without retained counsel’s presence, in disregard of Wheeler’s request for a continuance, and [ }
the judge rendered ‘direct examination’ of a critical defense witness.”

This court first reviews the state court decision to determine whether the state court
arrived at a “conclusion opposite to that reached by [the Supreme] Court on a question of law” or
“if the state court confront[ed] facts that are materially indistinguishable from a relevant Supreme
Court precedent and artive[d] at a result opposite to [it].” Williams v. Taylor, 529 U.S. 362, 405
(2000). Normally, to establish ineffective assistance of counsel, a defendant must show that his
attorney’s performance was deficient and that he was prejudiced by that deficient performance.

See e.g., Strickland v. Washington, 466 U.S. 668 693-696 (1984). However, in United States v.

Cronic, 466 U.S. 648, 659 (1984), the Supreme Court stated that courts should presume


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

United States of America
ex rel. WILLIE WHEELER,
Petitioner,

No. 03 C 1837
Judge Joan H. Lefkow

Vv.

JONATHAN WALLS,
Warden,
Jacksonville Correctional Center,

DOCKETED

Respondent. JAN 0 6 2005

weve ev eveve eevee

MEMORANDUM OPINION AND ORDER

Petitioner Willie Wheeler (“Wheeler”) was convicted at a bench trial in the Circuit Court
of Cook County, Illinois, of two counts of possession of a controlled substance with intent to
deliver. The court sentenced Wheeler to prison terms of ten and seven years, to run concurrently.
In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Wheeler claims that the
trial judge’s questioning of a “critical” defense witness at a time when Wheeler’s counsel was not
present violated his Sixth Amendment right to the effective assistance of counsel. For the
reasons stated below, the court denies his petition.

1 Standard of Review

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this court
must deny Wheeler’s petition for a writ of habeas corpus with respect to any claim adjudicated
on the merits in a state court unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court



of the United States.” 28 U.S.C. § 2254(d)(1); Lindh v. Murphy, 96 F.3d 856, 879 (7" Cir.
1996), rev’d on other grounds, 521 U.S. 320 (1997). A state court’s decision is contrary to
clearly established Supreme Court precedent “if the state court arrives at a conclusion opposite to
that reached by (the Supreme] Court on a question of law” or “if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [it].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court’s decision is
an unreasonable application of clearly established Supreme Court law “if the state court identifies
the correct governing legal rule from [the] Court’s cases but unreasonably applies it to the facts
of a particular prisoner’s case” or “if the state court either unreasonably extends a legal principle
from [Court} precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Id.

When a case falls under § 2254(d)(1)’s “contrary to” clause, this court reviews the state
court decision de novo to determine the legal question of what is clearly established law as
determined by the Supreme Court and whether the state court decision is “contrary to” that
precedent. When a case falls under the “unreasonable application of” clause of § 2254(d)(1),
however, the court defers to a reasonable state court decision. Anderson v. Cowan, 227 F.3d 893,
896-97 (7" Cir. 2000). In other words, the court reviews core issues of federal Jaw de novo.
Lindh, 96 F.3d at 877. When confronted with mixed questions of law and fact (i.e., whether a
state court’s holding involved an “unreasonable application” of clearly established Supreme
Court precedent), the court also applies a de novo standard but “with a grant of deference to any
reasonable state court decision.” Anderson, 227 F.3d at 897. A state court satisfies this

reasonableness standard if its application is “at least minimally consistent with the facts and