In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2400
WENDELL WEAVER,
Petitioner‐Appellant,
v.
WALTER NICHOLSON,*
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 10100 — Sara L. Ellis, Judge.
____________________
ARGUED JANUARY 5, 2018 — DECIDED JUNE 15, 2018
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Wendell Weaver was convicted of
first degree murder and sentenced to forty years’ imprison‐
ment. In a petition for a writ of habeas corpus, he alleges that
his constitutional rights were violated by the trial court’s dis‐
qualification of his counsel of choice, the ineffective assistance
*Walter Nicholson, the current warden of Stateville Correctional Center,
replaced Randy Pfister as the respondent‐appellee.
2 No. 16‐2400
of his replacement counsel, the state’s use of certain testimony
at trial, and the trial court’s admission of “other crimes” evi‐
dence. 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 post‐
conviction 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, Ron‐
dell Traywick. The trial court heard argument and disquali‐
fied 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 an‐
other associate, Lamont Delaney, to a McDonald’s parking lot
where the three of them smoked marijuana. Callico testified
No. 16‐2400 3
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 recov‐
ered 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 ap‐
proached, Weaver drew the gun and fled. Pinal further testi‐
fied 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 sec‐
onds.
4 No. 16‐2400
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 testi‐
mony 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 pe‐
tition for leave to appeal that decision.
Weaver then filed a counseled state post‐conviction peti‐
tion, 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 Illinois Supreme
Court later denied Weaver’s request for leave to appeal the
decision.
C. Federal proceedings
In December 2012, Weaver filed a petition for a writ of ha‐
beas corpus in federal district court. See 28 U.S.C. § 2254. In
relevant part, the petition claimed that:
(1) the trial court denied him the right to his counsel of
choice;
No. 16‐2400 5
(2) his trial counsel was ineffective for failing to (a) call a
number of witnesses to testify, and (b) properly cross‐ex‐
amine Callico;
(3) the state violated his due process rights by using Cal‐
lico’s coerced and perjured testimony; and
(4) the trial court violated his due process rights by admit‐
ting evidence of other crimes related to the September
2002 incident.
The district court denied the petition, which we now review
de novo. Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir. 2009).
II. ANALYSIS
Weaver seeks habeas relief under the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2254. Under
the Act, we may grant relief if a state court’s decision was (1)
contrary to, or an unreasonable application of, clearly estab‐
lished Supreme Court precedent; or (2) rested on an unrea‐
sonable factual determination. 28 U.S.C. § 2254(d)(1)–(2).
A state court’s decision is “contrary to” clearly established
federal law “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 indis‐
tinguishable from a relevant Supreme Court precedent” but
reaches an opposite result. Williams v. Taylor, 529 U.S. 362,
404–05 (2000). A state court “unreasonably applies” clearly es‐
tablished law if “the state court correctly identifies the gov‐
erning legal principle from [Supreme Court] decisions but un‐
reasonably applies it to the facts of the particular case.” Bell v.
Cone, 535 U.S. 685, 694 (2002). A state court decision rests on
an unreasonable factual determination when “the state court
determined an underlying factual issue against the clear and
6 No. 16‐2400
convincing weight of the evidence.” Morgan v. Hardy, 662 F.3d
790, 798 (7th Cir. 2011). “[S]o long as fair‐minded jurists could
disagree on the correctness of the state court’s decision,” the
decision is reasonable. Harrington v. Richter, 562 U.S. 86, 101
(2011).
Under the Act, we review the last state court decision to
address the merits of a prisoner’s claim. See Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). In Weaver’s case, the Illinois ap‐
pellate court last addressed the merits of his claims on direct
appeal and when it affirmed the denial of his post‐conviction
petitions.
We now turn to Weaver’s choice‐of‐counsel, ineffective as‐
sistance, due process, and “other evidence” claims. As to the
first three claims, we find the decision of the state appellate
court reasonable. Weaver’s final claim is procedurally de‐
faulted.
A. Weaver’s choice‐of‐counsel claim fails.
Before trial, the Illinois trial court disqualified Weaver’s
counsel, Charles Murphy, due to a potential conflict arising
from one of the state’s potential witnesses, Rondell Traywick.
Murphy had previously represented Traywick in a criminal
matter. And just a month before the disqualification hearing,
Murphy visited Traywick in jail to discuss his recent criminal
charges and Traywick’s intention to accept the state’s plea of‐
fer. According to the state, Gary “Lupe” Mullen—an associate
of Weaver’s—had told Traywick that he and Weaver were in‐
volved in the shooting.
Weaver claims that the disqualification denied him his
Sixth Amendment right to the counsel of his choice. See Wheat
No. 16‐2400 7
v. United States, 486 U.S. 153, 159 (1988). To prevail under Sec‐
tion 2254(d), Weaver must demonstrate that the Illinois appel‐
late court unreasonably applied Wheat—the Supreme Court’s
clearly established precedent on the issue.
Wheat requires that a court “recognize a presumption in
favor of a petitioner’s counsel of choice.” 486 U.S. at 164. Nev‐
ertheless, a demonstration of an actual conflict or serious po‐
tential for conflict may overcome this presumption. Id. More‐
over, under Wheat, “[t]he evaluation of the facts and circum‐
stances of each case … must be left primarily to the informed
judgment of the trial court,” id., which has “broad latitude” to
“rel[y] on instinct and judgment based on experience in mak‐
ing its decision.” Id. at 163.
Here, the Illinois appellate court reasonably applied
Wheat. The court began with Wheat and its presumption that
the Sixth Amendment protects a defendant’s right to counsel.
Then, it explained that the protection is not absolute and ap‐
plied a test from the Illinois Supreme Court decision, People v.
Ortega, 209 Ill. 2d 354 (1988), to determine if Weaver was en‐
titled to his counsel of choice despite a potential conflict.
In doing so, the appellate court noted that “the trial court
determined that Charles Murphy’s prior professional rela‐
tionship and continuing communication with Traywick signi‐
fied a potential conflict of interest where Traywick was a pos‐
sible witness against [Weaver].” (R. 20‐16 at 22.) It further
noted the trial court’s finding that “Charlie Murphy’s prison
consultation with Traywick could be considered representa‐
tion [and that concurrent representation of Traywick could
create] a per se conflict of interest.” (Id.) It then held that the
trial court properly disqualified Murphy because Murphy’s
8 No. 16‐2400
concurrent representation of Traywick could leave the convic‐
tion vulnerable to being overturned. It also highlighted the
state and public’s right to a fair trial, and the court’s interest
in the integrity of the verdict. This was a reasonable applica‐
tion of Wheat.
In so holding, we reject Weaver’s suggestion that Rodri‐
guez v. Chandler compels us to grant relief in his favor. 382 F.3d
670 (7th Cir. 2004). In Rodriguez, we granted habeas relief
when the trial court disqualified the defendant’s attorney be‐
cause the attorney was also representing one of the state’s po‐
tential trial witnesses, a detective, in an unrelated real estate
matter. Id. at 672–674. This case is distinct because the risks
presented by Murphy’s simultaneous representation are
much clearer. For instance, Murphy could have pressured
Traywick to provide testimony favorable to Weaver at Tray‐
wick’s own detriment in his pending criminal case. Alterna‐
tively, Murphy may have spared Traywick from his most in‐
cisive questions during cross‐examination hoping to help
keep Traywick from incriminating himself or disclosing de‐
tails harmful to his own prosecution. This potential for con‐
flict was further compounded by discovery suggesting that
Weaver was Traywick’s boss and that he had arranged for
Murphy to represent Traywick in his prior criminal case.
We likewise reject Weaver’s suggestion that Traywick’s
failure to testify mandates relief. See id. at 673. Wheat expressly
noted that disqualification decisions are made “not with the
wisdom of hindsight after the trial has taken place, but in the
murkier pre‐trial context when relationships between parties
are seen through a glass, darkly.” 486 U.S. at 162. Wheat thus
No. 16‐2400 9
permitted pretrial disqualification even when potential con‐
flict does not “burgeon into an actual conflict as the trial pro‐
gresses.” Id. at 163.
For these reasons, the Illinois appellate court reasonably
applied Wheat. Weaver’s choice‐of‐counsel claim therefore
fails.
B. Weaver’s ineffective assistance claims fail.
Weaver contends that trial counsel was ineffective for fail‐
ing to (1) cross‐examine Callico effectively; (2) call a witness
to testify that Callico told him he could not identify the
shooter; (3) call a number of witnesses to dispute Officer Pi‐
nal’s testimony; and (4) call witnesses to testify that another
person had confessed to shooting Sanders. Weaver also ar‐
gues that his counsel’s performance was ineffective as a
whole. See Thompson v. Battaglia, 458 F.3d 614, 616 (7th Cir.
2006). For all his claims, Weaver must demonstrate that the
state court unreasonably applied Strickland v. Washington, the
Supreme Court’s clearly established precedent on the issue.
466 U.S. 668 (1984).
Under Strickland, Weaver must show that his counsel’s
performance fell below an “objective standard of reasonable‐
ness” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 688, 694. We give state
courts broad latitude in applying this general standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (describing the
standard of review on Strickland claims evaluated under
§ 2254 as “doubly deferential”). Thus, “only a clear error in
applying Strickland would support a writ of habeas corpus.”
Murrell v. Frank, 332 F.3d 1102, 1111 (7th Cir. 2003) (quoting
10 No. 16‐2400
Dixon v. Snyder, 266 F.3d 693, 700‐01 (7th Cir. 2001)). None of
Weaver’s claims meet this bar.
Weaver first argues that trial counsel was ineffective for
failing to cross‐examine Callico about his prior statement to
police that the shooter was on foot. Weaver contends that
such questioning would have further impeached Callico be‐
cause it contradicted some physical evidence and another wit‐
ness’s testimony. When presented with this claim, the Illinois
appellate court found that counsel’s performance was ade‐
quate and that Weaver was not prejudiced. This holding was
reasonable. Although trial counsel did not question Callico
about that particular statement, through vigorous cross‐ex‐
amination trial counsel undercut Callico’s general credibility
as a witness and his ability to identify Sanders’s shooter.
Second, Weaver insists that trial counsel was ineffective
for failing to contact Callico’s associate, Lamont Delaney, or
call him to testify that Callico admitted that he did not see
who the shooters were. But Weaver has not shown that trial
counsel failed to investigate Delaney, only that counsel never
located him. As for the failure to call Delaney, we presume
that trial counsel’s decision not to call a witness was strategic.
See Strickland, 466 U.S. at 689 (the defendant must overcome
the presumption “that counsel’s conduct falls within the wide
range of reasonable professional assistance.”). Weaver has not
overcome that presumption. In fact, during the trial, Weaver’s
counsel used Delaney’s absence to cast doubt on the state’s
theory. The Illinois appellate court therefore reasonably ap‐
plied Strickland when it rejected this claim on direct appeal.
Third, Weaver argues that trial counsel was ineffective for
failing to call four witnesses to dispute Officer Pinal’s claim
that Weaver had the murder weapon. Here again, we find that
No. 16‐2400 11
the Illinois appellate court reasonably applied Strickland. We
again presume that Weaver’s counsel did not call the wit‐
nesses as a matter of trial strategy and the conflicting affida‐
vits offered by the four potential witnesses fail to overcome
that presumption.
Fourth, Weaver contends that his trial counsel was ineffec‐
tive for failing to call Jason Dortch and Monique Tolliver to
testify that Gary “Lupe” Mullen—an associate of Weaver’s—
confessed to shooting Sanders. Once more, we find that the
Illinois appellate court’s rejection of this claim was reasona‐
ble. As a threshold matter, the state court found that Weaver
procedurally defaulted his claim as to Dortch because he
failed to present it on direct appeal. This independent and ad‐
equate state ground procedurally defaults this claim for the
purpose of federal habeas review. See Kaczmarek v. Rednour,
627 F.3d 586, 592 (7th Cir. 2010).
Even excusing the default, the appellate court’s finding
that the testimony would have been inadmissible hearsay was
based on a reasonable application of Supreme Court prece‐
dent. See Chambers v. Mississippi, 410 U.S. 284, 298–302 (1973)
(providing that otherwise inadmissible hearsay against the
declarant’s penal interest may be offered when it is critical to
the defense and bears “considerable assurance of [its] reliabil‐
ity”). Here, the state could not cross‐examine Lupe (he died
days after Sanders’s murder), and Dortch and Tolliver’s state‐
ments were not otherwise corroborated. Under these circum‐
stances, it was reasonable for the state court to conclude that
Dortch and Tolliver’s statements lacked the assurances of
trustworthiness demanded by Chambers. Id.
12 No. 16‐2400
Finally, we consider Weaver’s claim that trial counsel was
ineffective “as a whole” due to “overall deficient perfor‐
mance.” See Thompson, 458 F.3d at 616. For all the above rea‐
sons, this claim fails as well.
C. Weaver’s Napue claim fails.
Weaver argues that the state violated his due process
rights because it “knowingly allowed Callico to falsely testify
that he saw Weaver ‘shooting into the car.’” Had the state co‐
erced Callico into identifying Weaver as the shooter and sub‐
sequently used that perjured testimony, it would have vio‐
lated Weaver’s due process rights. See Brady v. Maryland, 373
U.S. 83, 86 (1963); Napue v. Illinois, 360 U.S. 264, 269 (1959). But
the Illinois appellate court rejected this argument, finding that
the police and state had neither coerced Callico’s testimony
nor had they been aware of any perjury. Specifically, the court
noted that Callico’s affidavit did not contain sufficient facts to
show the state directed Callico’s testimony or knew that he
was allegedly lying about Weaver’s involvement.
This decision rested on findings of fact. Without clear and
convincing evidence to the contrary, we must accept these fac‐
tual findings as true. See Todd, 283 F.3d at 846; 28 U.S.C.
§ 2254(d)(2). Weaver directs the court to the pre‐trial incon‐
sistencies and post‐trial recantation, but those are insufficient
to reverse the state court’s factual findings. See United States v.
Saadeh, 61 F.3d 510, 523 (7th Cir. 1995) (“[M]ere inconsisten‐
cies in testimony by government witnesses do not establish
the government’s knowing use of false testimony”) (quoting
United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990));
Mendiola v. Schomig, 224 F.3d 589, 593 (7th Cir. 2000) (“Disbe‐
lief of recantations is sensible … because the formality of a
court, the presence of the litigants, and the gaze of a judge
No. 16‐2400 13
induce witnesses to hew more closely to the truth than they
do when … attempting to appease the losing side’s advo‐
cate.”). Because Weaver does not point to clear and convinc‐
ing evidence to the contrary, we accept the state court’s find‐
ing that the state did not pressure Callico to perjure himself
nor was it aware of any perjury. As a result, the state court’s
denial of Weaver’s Napue claim was reasonable.
D. Weaver’s “other crimes” evidence claim fails.
Weaver also argues that the trial court violated his due
process rights by admitting evidence of “other crimes,” spe‐
cifically that he pointed a gun at Officer Pinal during the 2002
incident. This claim is procedurally defaulted. “[S]tate prison‐
ers must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State’s established appellate review process.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). “To exhaust state remedies
in the Illinois courts, the prisoner must include his claims in a
petition for leave to appeal to the Illinois Supreme Court.”
Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018) (citing O’Sul‐
livan, 526 U.S. at 845–46). Weaver did not include this claim in
either of his petitions to the Illinois Supreme Court. And be‐
cause Weaver has not established cause for the default, we
will not excuse it. See Coleman v. Thompson, 501 U.S. 722, 750
(1991).
III. CONCLUSION
The Illinois appellate court reasonably applied relevant
Supreme Court precedent when it denied Weaver’s choice‐of‐
counsel, ineffective assistance of counsel, and due process
claims. And Weaver procedurally defaulted his “other
14 No. 16‐2400
crimes” evidence claim when he failed to ask the Illinois Su‐
preme Court to review it. Accordingly, we AFFIRM the judg‐
ment of the district court denying Weaver’s petition for a writ
of habeas corpus.