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Timothy Shearer v. Shirley R. Moore Smeal

February 27, 2013

TIMOTHY SHEARER
v.
SHIRLEY R. MOORE SMEAL;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: Judge Norma L. Shapiro

MEMORANDUM

Timothy Shearer, a state prisoner, timely filed a habeas corpus petition under 28 U.S.C. § 2254. Shearer claims that his trial counsel provided ineffective assistance by: (1) failing to object to a witness's pretrial identification of Shearer in a photographic array; (2) failing to object to jury instructions that inadequately distinguished first-degree murder from third-degree murder; (3) failing to call an alibi witness; and (4) failing to object to the sufficiency of the evidence on an aggravated assault charge. Shearer also requests an evidentiary hearing.

Magistrate Judge Timothy R. Rice recommended the petition be dismissed with prejudice. Shearer, proceeding pro se, has objected to all of Magistrate Judge Rice's conclusions. After considering Shearer's objections and his supplemental objections, the court finds petitioner's objections meritless. Magistrate Judge Rice's Report and Recommendation ("R&R") will be approved and adopted and Shearer's petition for habeas corpus will be denied.

I. Background

On September 22, 1998, around 6:00 PM, Terrence Adams ("decedent") was shot and killed on the 5100 block of Arch Street. Yvette Gray was also shot in her right side but survived. Shearer was arrested for shooting decedent and Gray.

At Shearer's original trial in the Philadelphia Court of Common Pleas, defense counsel called Anthony Brown as a witness. Brown, Shearer's uncle, testified Shearer was at home with him on the night of the shooting. Brown also testified Shearer was on parole at the time of the shooting. Shearer's first trial was declared a mistrial when the jury could not reach a verdict.

At the retrial, Yvette Gray, Richard Adams (an eyewitness and decedent's second cousin), and John Fuller (an eyewitness) testified. Defense counsel did not call Brown to testify.

Gray testified she was near 51st and Arch Streets when she heard gunshots. Seeing others running, she joined with them. When she was shot in her right side, she fell on the steps of an abandoned house on the 5100 block of Arch Street. While lying there, she saw a man run by her in a red shirt. Shearer was wearing a red shirt the night of the shooting. Gray did not identify Shearer that night or at trial.

Richard Adams testified that Shearer and decedent argued two nights before the shooting. Adams said that on the night of the shooting, Shearer approached decedent on the corner of Paxon and Arch Streets. He said decedent told Shearer he did not want to fight, at which point Shearer fired a gun into the air. Adams, decedent, and others in the area began running down Arch and on to 51st Street. Adams said he looked back and saw Shearer chasing them and shooting his gun. Adams next saw decedent was shot and lying on the ground, with Shearer standing over him. Adams identified Shearer the night of the shooting in a police photographic array and then again at trial. Adams testified he "got a nice little look" at Shearer on the night of the shooting. Trial Tr. 69--70, Sept. 8, 2000.

Fuller was visiting his mother on the 5100 block of Arch Street the night of the shooting. He heard gunshots and ran outside. Fuller testified he saw Shearer chasing people with a gun and a woman lying on a porch outside a house. He called the police when he heard others say the woman had been shot. Fuller said he recognized Shearer because Shearer went to school with his younger brother, and his mother and Shearer's mother were next-door neighbors. Fuller identified Shearer the night of the shooting and at trial.

Defense counsel did not call Brown or any other alibi witnesses at the retrial. On September 11, 2000, the second jury convicted Shearer of third-degree murder, a firearms violation, possession of an instrument of crime, and aggravated assault. The court sentenced Shearer to 17.5 to 35 years in prison. After the trial, Brown signed an affidavit stating he had been willing to testify at trial about Shearer's whereabouts the night of the shooting. See Resp. Pet. Ex. 5, at 38, paper no. 11.

Shearer, in his direct appeal, alleged ineffective assistance of counsel for failure to file a motion to suppress Adams' pre-trial identification and failure to call Brown as an alibi witness. The Superior Court deferred the ineffectiveness claims for collateral review and affirmed the conviction. Shearer's petition to the Pennsylvania Supreme Court for allowance of appeal was denied.

Shearer filed a pro se Pennsylvania Post Conviction Relief Act ("PCRA") petition. See 42 Pa. Cons. Stat. Ann. §§ 9542--9546. He claimed ineffective assistance of counsel for failure to file a motion to suppress Adams' pre-trial identification and failure to call Brown as an alibi witness. The PCRA court appointed counsel for Shearer. After an amended petition and an evidentiary hearing, the PCRA court ordered appointed counsel to file another amended petition, consolidating Shearer's grievances. Shearer filed a new PCRA petition, claiming ineffective assistance of trial counsel based on counsel's: (1) advising Shearer not to testify; (2) failing to file a motion to suppress Adams' pre-trial identification; and (3) failing to call Brown or any other alibi witnesses. This petition was dismissed as meritless.

Shearer appealed; the PCRA court allowed him to proceed pro se.*fn1 The Superior Court found all claims meritless and affirmed the PCRA court. The Pennsylvania Supreme Court denied Shearer's petition for allowance of appeal. Shearer filed a timely habeas corpus petition on August 18, 2011.

II. Standard of Review

A district court reviews de novo the portions of a magistrate judge's Report and Recommendation to which a petitioner objects. See 28 U.S.C. § 636(b)(1)(c).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a district court may not grant a writ of habeas corpus to a person serving a state court sentence unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the ...


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