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Jones v. Delbalso

United States District Court, E.D. Pennsylvania

January 18, 2017

MICHAEL JONES, Petitioner-pro se
THERESA DELBALSO, et al. Respondents



         Petitioner Michael Jones (“Petitioner”), a Pennsylvania state prisoner acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he asserted claims of ineffectiveness of counsel, prosecutorial misconduct, and judicial error. [ECF 1]. In accordance with Title 28 U.S.C §636(b) and Local Civil Rule 72.1.IV(c), the petition was referred to United States Magistrate Judge Linda K. Caracappa for a Report and Recommendation (“R&R”). [ECF 2]. On August 31, 2016, the Magistrate Judge issued an R&R, which recommended that the petition for a writ of habeas corpus be denied. [ECF 9]. Petitioner timely filed objections to the R&R. [ECF 12]. Thus, this matter is ripe for a de novo determination of the objections to the R&R.

         After a thorough and independent review of the state court record and court filings, for the reasons stated herein, Petitioner's objections are overruled, the R&R is approved and adopted, and the petition for a writ of habeas corpus is denied.


         On April 7, 2012, following a jury trial, Petitioner was convicted of burglary. The facts underlying his conviction were summarized by the trial court and quoted in the R&R as follows:

At trial, the Commonwealth presented the testimony of Philadelphia Police Officer Anthony Berry, Michael McGeehan, Alberta Scheerer, Jennifer Malloy, Detective Andrew Danks, and James Ryan. Defendant presented the testimony of Takisha Miller and Timothy Hoppes. Viewed in the light most favorable to the Commonwealth as the verdict winner, their testimony established the following.
On May 29, 2009, Alberta Scheerer was at her home, located directly behind 4413 McMenamy Street in Philadelphia. N.T. 4/6/2010 at 48, 71. At approximately 10 a.m., Ms. Scheerer looked out of her upstairs bedroom window and noticed defendant, whom she did not recognize, standing in the backyard of her neighbor, Michael McGeehan. N.T. 4/6/2010 at 29, 49-50. Ms. Scheerer continued to watch defendant through the window, and a couple of minutes later, defendant went to the side of 4413 McMenamy Street, forced open one of the windows, and climbed inside the house. N.T. 4/6/2010 at 32, 51-52.
Ms. Scheerer then ran down the stairs inside her home and alerted her son, Christopher Scheerer, and her son's fiancée, Jennifer Malloy, to what she had witnessed. N.T. 4/6/2010 at 53- 54. Ms. Malloy went upstairs with Ms. Scheerer, while Mr. Scheerer ran outside to see if he could flag down a police officer. N.T. 4/6/2010 at 54. Ms. Malloy and Ms. Scheerer watched through the window as defendant walked around the interior of their neighbor's home. N.T. 4/6/2010 at 54-55. Outside, Mr. Scheerer located a police officer and brought him to 4413 McMenamy Street. N.T. 4/5/2010 at 41-42. As Philadelphia Police Officer Anthony Berry approached, he saw defendant trying to break a sliding glass door to get out of the home. N.T. 4/5/2010 at 44; 4/6/2010 at 73.
Defendant ran out the back door of the home, jumped over the fence, and ran in the opposite direction from the Scheerer home. N.T. 4/6/2010 at 55-56. Officer Berry returned to his patrol car and circled the block, locating defendant approximately ten seconds later walking northbound up McMenamy Street. N.T. 4/5/2010 at 48, 81. Officer Berry pulled his patrol car over and asked defendant if he could talk to him. N.T. 4/5/2010 at 48-49.
Defendant ran, with Officer Berry pursuing him first in his patrol car and then on foot. N.T. 4/5/2010 at 49. Officer Berry chased defendant through an apartment complex and over a fence before defendant finally hid underneath an abandoned car. N.T. 4/5/2010 at 49-51. Officer Berry drew his weapon, at which point defendant surrendered. N.T. 4/5/2010 at 51.
Another police officer transported Ms. Malloy, accompanied by Mr. Scheerer, to identify defendant. From the backseat of the officer's patrol car, while defendant stood in the street, Ms. Malloy positively identified defendant as the man she saw burglarizing her neighbor's home. 4/5/2010 at 61-62. Based on Officer Berry and Ms. Malloy's identifications, defendant was arrested. N.T. 4/5/2010 at 87-88.
Mr. McGeehan arrived home shortly after being notified of the burglary. N.T. 4/6/2010 at 31. He told police that a duffel bag typically filled with gym equipment and kept in his bedroom had been moved next to the back door. N.T. 4/6/2010 at 32-34, 91. Inside the duffel bag was a five-gallon water jug in which Mr. McGeehan kept between twelve hundred to fifteen hundred dollars' worth of loose change. N.T. 4/6/2010 at 33-37.

Commonwealth v. Jones, 2015 WL 7301799, at *4 (Pa. Super. Ct. Apr. 21, 2015).

         Following his conviction, Petitioner was sentenced to a term of seven to fourteen years imprisonment. Id. at *3. He filed a timely post-sentence motion which the trial court denied, and a direct appeal with the Pennsylvania Superior Court, which was dismissed for Petitioner's failure to file a brief. Id.

         On January 3, 2011, Petitioner filed a pro se petition under the Pennsylvania Post-Conviction Relief Act (“PCRA”), seeking reinstatement of his appellate rights. Id. On June 17, 2011, Petitioner's PCRA petition was granted, and his appellate rights were reinstated nunc pro tunc. Id. Petitioner then filed what was deemed a timely direct appeal. Id. The Pennsylvania Superior Court affirmed Petitioner's sentence on April 27, 2012. Id. Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

         On May 10, 2012, Petitioner filed a timely pro se PCRA. Id. Counsel was appointed, but subsequently filed a no merit letter, along with a motion to withdraw. Id. The PCRA petition was dismissed on May 29, 2014. Id. On April 21, 2015, the Superior Court affirmed the dismissal of the PCRA petition. Id. at *2. Petitioner filed a petition for allowance of appeal, which was denied by the Pennsylvania Supreme Court on October 26, 2015.

         On March 16, 2016, Petitioner filed the underlying pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, [ECF 1], which was referred to the Honorable Magistrate Judge Linda K. Caracappa for a report and recommendation. [ECF 2]. After considering the parties' submissions and the underlying state court record, the Magistrate Judge submitted a well-reasoned R&R which addressed Petitioner's habeas claims, and recommended that the petition be denied. In his objections to the R&R, Petitioner essentially argues that the conclusion of the Magistrate Judge is wrong with respect to five of his ten habeas claims; to wit, claims one, four, seven, nine and ten. This Court disagrees and approves and adopts the R&R.

         LEGAL ...

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