BACON v. GARMAN et al
ORDER THAT THE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM CIVIL SUSPENSE AND RETURN IT TO THE COURTS ACTIVE DOCKET; THE PETITIONERS OBJECTIONS TO THE REPORT AND RECOMMENDATION (DOC. NO. 23 ) ARE OVERRULED; THE HONORABLE MARILYN HEFFLEYS R EPORT AND RECOMMENDATION (DOC. NO. 18 ) IS APPROVED AND ADOPTED; THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1 ) IS DENIED; THE PETITIONER HAS NOT MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT AND IS THEREFORE NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY, 28 U.S.C. § 2253(C)(2);2 AND THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 1/5/18. 1/9/18 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARK GARMAN, THE DISTRICT
ATTORNEY OF THE COUNTY OF
PHILADELPHIA, and THE ATTORNEY
GENERAL OF THE STATE OF
CIVIL ACTION NO. 16-2906
AND NOW, this 5th day of January, 2018, after considering the petition for writ of
habeas corpus under 28 U.S.C. § 2254 filed by the pro se petitioner, James Bacon (Doc. No. 1),
the memorandum of law in support of the petition (Doc. No. 6), the respondents’ response
thereto (Doc. No. 17), the state court record, United States Magistrate Judge Marilyn Heffley’s
report and recommendation (Doc. No. 18), and a letter by the petitioner (Doc. No. 23),
interpreted by this court as objections to the report and recommendation; accordingly, it is
hereby ORDERED as follows:
The clerk of court is DIRECTED to remove this action from civil suspense and
return it to the court’s active docket;
The petitioner’s objections to the report and recommendation (Doc. No. 23) are
The Honorable Marilyn Heffley’s report and recommendation (Doc. No. 18) is
APPROVED and ADOPTED;
The petitioner’s petition for writ of habeas corpus (Doc. No. 1) is DENIED;
The petitioner has not made a substantial showing of the denial of a constitutional
right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); 2 and
The clerk of court shall mark this case as CLOSED.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
The court conducts a de novo review and determination of the portions of the report and recommendation (“R&R”)
by the magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a
de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b) (providing requirements for filing objections to
magistrate judge’s proposed findings, recommendations or report).
While the petitioner does not specifically respond to the R&R, in a letter mailed within the timeline
allowed for objections (Doc. No. 23), the petitioner implicitly challenges Magistrate Judge Heffley’s conclusions
that his counsel was not ineffective in failing to present two potential alibi witnesses: (1) Mary Fair, and (2) Janice
Shappelle (spelled “Chappelle” by the petitioner). With respect to Mary Fair, Magistrate Judge Heffley concluded
that the representation provided by the petitioner’s trial counsel was not objectively unreasonable under Strickland v.
Washington, 466 U.S. 668 (1984), because Ms. Fair’s testimony carried with it several risks. These risks included:
(a) opening the door to a disclosure that the petitioner had an arrest warrant relating to a separate shooting and
killing; (b) her testimony as to the petitioner’s alibi—that she had been on the phone with the petitioner at the time
of the police chase in this case—conflicting with another witness who claimed to have spoken to the petitioner over
the phone at the same time; and (c) her testimony appearing biased because Ms. Fair is the petitioner’s mother, and
she had told police she did not know the petitioner’s whereabouts even though she was in daily contact with him.
R&R at 17-18. Moreover, trial counsel believed the testimony of the petitioner’s neighbor, who testified to seeing
the true shooter, not the petitioner, run past him outside, was sufficiently strong that Ms. Fair’s testimony was not
worth the risks. Id. at 18. In his objections, the petitioner counters that the trial judge had already admitted evidence
“regarding prior police contact and the police looking for” the petitioner, Ms. Fair was properly sequestered, and the
neighbor’s and Ms. Fair’s testimony comported with one another. Pet’r’s Objs. at 2-3. The court agrees with
Magistrate Judge Heffley’s conclusion because, even granting petitioner’s arguments, Ms. Fair’s testimony still
carried with it the possibility of a damaging cross-examination undermining the petitioner’s defense.
Magistrate Judge Heffley also concluded that trial counsel’s decision not to call Ms. Shappelle was not
objectively unreasonable because she deferred to the determination by the PCRA court that trial counsel credibly
testified as to being unaware that Ms. Shappelle could provide alibi testimony. R&R at 21-22 (quoting Marshall v.
Lonberger, 459 U.S. 422, 434 (1983) (stating that the habeas statute “gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”)).
The petitioner objects that: (a) “the defender association took down her name incorrectly and that is why she was not
called;” (b) the petitioner “told [trial counsel] of his alibi witness, Ms[.] Chappelle, on numerous occasions;” and (c)
trial counsel, who represented the petitioner in another shooting case, misplaced Ms. Chappelle’s name with the
other case and “testified and accepted the likely mistake.” Pet’r’s Objs. at 1-2 (alteration to original). The
petitioner also states Ms. Shappelle was available in Philadelphia and willing to testify, and the absence of Ms.
Shappelle’s testimony prejudiced him because her alibi testimony placed him somewhere other than the scene of the
crime. Id. at 2.
The petitioner overstates trial counsel’s testimony; trial counsel never testified at the PCRA evidentiary
hearing that Ms. Shappelle being listed as a possible alibi witness for the prior shooting case was a “likely mistake.”
In fact, trial counsel’s testimony at the PCRA hearing, occurring approximately seven years after the petitioner’s
trial, suggests that she simply could not remember any contacts relating to Ms. Shappelle, and that based on the
gravity of the case and her memory of zealously seeking out witnesses, it would have been uncharacteristic of her to
neglect to contact Ms. Shappelle:
So would it be fair to say it would be uncharacteristic for you . . . in such an important
case not to contact a witness?
Yes. And I think based on everything that I reviewed in the file -- and, again, this was a
long time ago so I had to refresh my memory about a lot -- I think that I would have at
least tried to contact that woman, and I think I would have had conversation at least with
Mr. Bacon’s mother about it because I know that Kia [Reese] was a constant name that
was coming up and I think I talked to her multiple times. And with all the other
eyewitnesses, we were literally investigating witnesses up to the day of trial, literally. I
had any investigator going out every single day the week before the trial because his
mom kept telling me everyone knows James didn’t do it.
So do I understand correctly then that you did not have conversation with the defendant
or his mother about Janice Shappelle other than apparently the contact information?
I can’t say for sure that I didn’t. It is possible at the very beginning because I have it in
my notes that we talked about this person. It doesn’t appear it was a name that came up
toward the end when we were getting down to things. And this man should not have
been found guilty of this case and it is unfortunate.
So you do think that you did everything that you could to prepare this case?
I think within reason and within reasonableness that I had and within the rulings that the
judge was making, I think that I did everything I could have and I don’t think an alibi
defense was the way to go in this case.
Apr. 12, 2013 PCRA Hr’g Tr. at 50-51 (alteration to original). Based on this testimony, and the deference afforded
to the PCRA court’s determination that trial counsel was credible, the petitioner’s objections fail to overcome the
Strickland presumption of effectiveness.
Therefore, after conducting a de novo review of the portions of the R&R to which the petitioner apparently
objects, the court concurs with Magistrate Judge Heffley’s conclusions, and accordingly, overrules the objections.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (explaining requirements for obtaining a certificate of
appealability under section 2253(c)(2)).
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