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Bess v. Giroux

United States District Court, E.D. Pennsylvania

October 31, 2017

SHANNON BESS Petitioner-pro se
NANCY GIROUX, et al. Respondents



         Petitioner Shannon Bess (“Petitioner” or “Bess”), a Pennsylvania state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he asserted numerous claims of ineffectiveness of counsel and a purported due process violation premised on the state court's treatment of his PCRA[1] petition. [ECF 1]. In accordance with Title 28 U.S.C §636(b), Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, and Local Civil Rule 72.1.IV(c), the petition was randomly referred to United States Magistrate Judge Timothy R. Rice (the “Magistrate Judge”) for a Report and Recommendation (“R&R”). [ECF 2]. On February 17, 2017, the Magistrate Judge issued an R&R, which recommended that the petition for a writ of habeas corpus be denied. [ECF 14]. After requesting and being granted an extension of time in which to do so, Petitioner filed objections to the R&R. [ECF 19]. This matter is, therefore, ripe for a de novo review and determination of the specific objections to the R&R.

         After conducting 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.


         The factual and procedural histories underlying Petitioner's request for federal habeas relief are aptly summarized in the R&R submitted by Magistrate Judge Rice and will not be repeated except for context and to aid this Court's analysis. With this caveat, on November 27, 2006, following a bench trial, Petitioner was found guilty of third-degree murder and firearms violations. See Commonwealth v. Bess, 2015 WL 7188368, at *2 (Pa. Super. Ct. May 22, 2015). The facts underlying Petitioner's conviction are summarized as follows:

On the day of the shooting at around 11 a.m., Bess received numerous phone calls from Tanaya Guy, (“Guy”), the mother of his children. (N.T.11/27/06 at 109-110). Around noon, Bess drove to the intersection of 54th Street and Gainor Road. There, he interrupted an argument between Guy and her estranged husband, the victim Danzell Chandler, (id. at 41), held a handgun to Chandler's head and pulled the trigger, but Chandler was able to flee when the gun misfired. (Id. at 39-40). Bess slipped while trying to follow Chandler on foot, then pursued him by car, and shot him four times in the back. (Id. at 40).
Philadelphia police arrived within three minutes of the shooting and spoke to Chandler, who provided his name and birthdate. (Id. at 7-8). Chandler identified Bess as his shooter, but refused to answer further questions. (Id. at 8-9). Chandler was transported to the hospital and died almost three weeks later without offering further statements. (Id. at 18).
At trial, the Commonwealth called two Gainor Road residents and the victim's estranged wife as witnesses. (Id. at 38, 55, 68). The first Gainor Road neighbor testified that, just before noon, he had witnessed the victim and a female arguing, and then saw another male pull up in a four-door, American-made sedan. (Id. at 41). He saw the driver leave the vehicle with a gun and put it to the victim's temple, heard the gun misfire, and saw the victim run away and the perpetrator try to chase him, slip, and return to his car. (Id. at 39-40, 42-43). As the shooter drove after the victim, the witness heard someone yell “it's not worth it” at the shooter, who responded by shouting back that the victim had hit his baby's mother. (Id. at 53). The witness heard additional gunshots while he called police. (Id. at 40). Later that day, the witness gave a statement to police describing the shooter as a five-foot five-or-six-inch, dark-complected African American man in his early twenties wearing dark jeans and a yellow Polo shirt. (Id. at 50). He was unable to identify the shooter in a photo array. (Id.).
The second Gainor Road witness testified she was inside her home and heard arguing in the street followed by several gunshots. (Id. at 56-57). When she looked out her front door, she saw the shooter pointing a firearm at the facedown victim while standing over him, and held eye contact with the shooter for “seconds.” (Id. at 47). She testified the shooter wore a yellow or gold polo shirt with long denim shorts, and that the defendant “resemble[d]” the shooter, but she could not be “100 percent positive” they were the same man. (Id. at 58). The shooter did not respond when the witness offered help, but instead jogged back to his silver car and drove away. (Id. at 59). Three weeks after the shooting, the second witness reviewed a photo array and was unable to identify the shooter. (Id. at 64).
The victim's estranged wife, Guy, testified that she visited the police station at around 2 p.m. to report being beaten by Chandler that day, only to learn that he had just been shot. (Id. at 73-74). Although she claimed to have no memory of the shooting at the time of trial, she acknowledged telling police that she had fought with Chandler until Bess arrived and tried to shoot him, after which she argued with Bess to stop and ran away. (Id. at 77-78). The statement also identified Bess's car as a silver, four-door Regal; and described the injuries and bruises she sustained from Chandler that day. (Id. at 79-81). Telephone records showed she was in close contact with Bess between 11 a.m. and 1 p.m. on the day of the shooting. (Id. at 109).

[See ECF 14, pp. 1-3].

         The procedural history of this matter is set forth in the R&R, and need not be repeated in detail, and will be summarized to the extent relevant to the analysis of Petitioner's objections.


         Where objections to an R&R are filed, the court must conduct a de novo review of the contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. §636(b)(1)(C)), provided the objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In conducting its de novo review, a court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. 28 U.S.C. §636(b)(1); United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Although the review is de novo, the statute permits the court to rely ...

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