The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOMINIC FLEMISTER, :
Petitioner :
: No. 1:23-cv-01689
v. :
: (Judge Kane)
SUPERINTENDENT :
THOMAS MCGINLEY, et al., :
Respondents :
MEMORANDUM
Before the Court is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 through
which pro se Petitioner Dominic Flemister (“Flemister”) challenges his 2015 convictions for
attempted murder and carrying a firearm without a license in the Dauphin County Court of
Common Pleas (“Court of Common Pleas”). The Court will deny the petition for writ of habeas
corpus with prejudice.
I. BACKGROUND
The state courts of Pennsylvania have succinctly summarized the relevant factual
background of Flemister’s conviction. Sometime during the night of April 24, 2014, or the early
morning of April 25, 2014, a friend of Flemister’s named James Hill (“Hill”) observed Flemister
get into an argument with the eventual victim, Rodney Dunbar (“Dunbar”), at a night club in
Harrisburg, Pennsylvania. See Commonwealth v. Flemister, No. 1951 MDA 2015, 2016 WL
5920672, at *1 (Pa. Super. Ct. Sept. 8, 2016). Sometime later that night, Hill witnessed
Flemister get out of a car near the intersection of 17th Street and Swatara Street in Harrisburg
and continue the argument with Dunbar. See id. Hill was walking on 17th Street when he heard
two gunshots. See id. He looked towards where Flemister and Dunbar had been arguing and
observed Flemister get into his car and drive away. See id.
Hill walked several blocks to his cousin’s house in the area, where he sat down on the
porch. See id. Approximately 10–20 minutes later, Flemister came to the house and called out
to Hill. See id. The two spoke in an alleyway on Swatara Street, at which point Flemister told
Hill that Dunbar had tried to punch Flemister and that Flemister “had to do somethin’ to him” or
“somethin’ had to be done to him.” See id. Hill observed that Flemister had a gun with him
while they spoke. See id. Hill did not contact the police after this conversation because he did
not want to “rat [Flemister] out.” See id. Hill subsequently spoke with the police after they
contacted him through his girlfriend. See id.
Angel Diaz (“Diaz”), a Harrisburg police officer who was patrolling the area of the
shooting, found Dunbar lying in the street after hearing a woman screaming. See id. Dunbar
was bleeding profusely from his groin. See id. Diaz kept Dunbar awake until emergency
medical technicians arrived and then rode with him in an ambulance to Hershey Medical Center.
See id. During the ambulance ride, Dunbar told Diaz, “they tried to kill me.” See id.
Brianna Chambers (“Chambers”), Dunbar’s girlfriend, was on the porch of the home she
shared with Dunbar on 17th Street on the night of the shooting. See id. She observed Flemister
and another individual approach Dunbar. See id. She then watched as a fight broke out between
Flemister and Dunbar approximately ten feet from the house. See id. She heard a gunshot, and
when she realized that Dunbar had been shot, she started screaming and called 911. See id.
Police recovered a shell casing from a revolver from the scene of the shooting. See id.
Dunbar sustained a gunshot wound that obliterated multiple femoral vessels. See id. at *2. He
underwent multiple surgeries for artery repair and multiple blood transfusions. See id. Both
Dunbar and Chambers identified Flemister as the person who shot Dunbar in photo arrays in the
days after the shooting. See id.
Dunbar subsequently testified at Flemister’s trial, but stated only that he had been shot,
that he underwent multiple surgeries following the shooting, and that he remained hospitalized
for approximately one month. See id. After the Commonwealth obtained leave of the trial court
to question Dunbar as a hostile witness, the trial court directed Dunbar to either read the
transcript of his prior statement to police that was made following the shooting or allow the
prosecutor to read the transcript into evidence. See id. Dunbar agreed to read the transcript
himself. See id. The transcript of the statement read as follows:
We were all at the crib playing cards and music. So I left 2:00 (sic) to go to Forever
Nights. So I seen him, seen Kool Aid at Forever Nights. We had some words. So
after that I left. Walking to, walking to back to my house. So I seen Kool Aid come
out, hop out, hop out of this black, black car. He came up to me talkin' about, oh
yeah you wanna act tough now? You wanna act tough shit? I was, like, what's up,
and that's when we start. We start tearin it. And then after that everything was done.
He felt some type of way. He shot at me. And that's when I ran to the porch and
laid down. And that's when my baby mom called the cops, called the ambulance.
See id. (alterations in original).
Flemister was arrested on May 20, 2014, and charged with attempted murder and related
crimes. See id. at *3. Following a jury trial on August 19 and August 20, 2015, Flemister was
convicted of attempted murder, aggravated assault, and carrying a firearm without a license. See
id. at *1, 3. The Court of Common Pleas sentenced Flemister to 20–40 years of incarceration.
See id. at *3.
Flemister appealed to the Pennsylvania Superior Court, asserting the following claims for
relief: (1) the Commonwealth had not proven specific intent to kill; (2) the conviction for
attempted murder was against the weight of the evidence; and (3) the conviction for aggravated
assault was against the weight of the evidence. See id. The Superior Court affirmed the
conviction and sentence on September 8, 2016. See id. at *5. Flemister filed a petition for
allowance of appeal to the Pennsylvania Supreme Court, which was denied on May 2, 2017. See
Commonwealth v. Flemister, 168 A.3d 1285 (Pa. 2017).
Flemister filed a petition for state collateral relief pursuant to Pennsylvania’s Post-
Conviction Relief Act (“PCRA”), asserting that his trial counsel provided ineffective assistance
of counsel. See Commonwealth v. Flemister, 279 A.3d 1255 (Pa. Super. Ct. 2022). The Court of
Common Pleas dismissed the PCRA petition on June 17, 2021, and Flemister appealed. See id.
On appeal, the Superior Court remanded the case for the Court of Common Pleas to determine
whether Pennsylvania law required the attempted murder and aggravated assault convictions to
be merged for sentencing purposes and retained jurisdiction over the appeal. See id.
After the Court of Common Pleas considered the issue, the Superior Court considered the
three claims that Flemister asserted in his appeal: (1) that counsel was ineffective for failing to
impeach Chambers and Dunbar with prior crimen falsi convictions; (2) that counsel was
ineffective for failing to object to the Commonwealth’s failure to prove an element of attempted
murder; and (3) that counsel was ineffective for failing to impeach Hill regarding favorable
treatment he received from the Commonwealth for his testimony. See Commonwealth v.
Flemister, 284 A.3d 945, No. 946 MDA 2021, 2022 WL 3652713, at *3 (Pa. Super. Ct. Aug. 25,
2022). The court additionally noted that Flemister expanded on his third argument on appeal by
arguing that the Commonwealth’s failure to disclose evidence of Hill’s cooperation constituted a
violation of Brady v. Maryland, 373 U.S. 83 (1963).
The Superior Court considered Flemister’s claims on their merits and denied them on
August 25, 2022. See id. at *4–7. The court nevertheless vacated the portion of Flemister’s
sentence arising from his conviction for aggravated assault, concluding that under Pennsylvania
law aggravated assault is a lesser included offense in the crime of attempted murder and that the
two crimes accordingly merge for purposes of sentencing. See id. at *8. The court did not,
however, remand for resentencing, because the trial court had ordered the sentences for
aggravated assault and attempted murder to run concurrently, and the vacatur of the sentence for
aggravated assault therefore did not alter the length of Flemister’s sentence. See id. Flemister
filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on
February 28, 2023. See Commonwealth v. Flemister, 293 A.3d 561 (Pa. 2023).
Flemister filed the instant petition on September 23, 2023, and the Court received and
docketed it on October 11, 2023. (Doc. No. 1.) Flemister asserts four claims for habeas corpus
relief: (1) counsel was ineffective for failing to impeach Chambers and Dunbar with evidence of
their crimen falsi convictions; (2) the Commonwealth failed to disclose Brady material to
Flemister “regarding favorable treatment, deal, and/or understanding it had w[ith] its witness in
exchange for their testimony” and that counsel failed to investigate this issue or confront the
witness about it; (3) the Commonwealth used hearsay testimony instead of a medical report
prepared by an expert to prove an element of the crime and counsel provided ineffective
assistance by stipulating to the use of the hearsay evidence; and (4) the cumulative effect of
counsel’s errors constituted ineffective assistance of counsel. (Id.)
Flemister moved for leave to proceed in forma pauperis in connection with his petition.
(Doc. No. 4.) The Court denied the motion on November 16, 2023, and ordered Flemister to pay
the requisite filing fee within twenty-one (21) days, or no later than December 7, 2023. (Doc.
No. 6.) Having not received the filing fee by that date, the Court dismissed the case without
prejudice on December 11, 2023. (Doc. No. 7.) The Court then received payment of the filing
fee on December 13, 2023. Because this payment appeared to have been timely mailed in
accordance with the December 7, 2023, deadline, the Court issued an Order reopening the case
on December 20, 2023. (Doc. No. 8.) Respondents responded to the petition on January 30,
2024, arguing that Flemister’s claims are procedurally defaulted and fail on their merits. (Doc.
No. 14.)
After reviewing the petition and the response, the Court concluded that a complete state
court record was necessary to review Flemister’s claims for relief. The Court accordingly
ordered Respondents to produce the state court record under Rule 7 of the Rules Governing
Section 2254 Habeas Corpus Petitions. (Doc. No. 16.) Respondents produced supplemental
exhibits on March 17, 2025. (Doc. No. 17.) The Court then received a letter from Flemister on
May 16, 2025, indicating that he had not received Respondents’ response to his petition. (Doc.
No. 18.) The Court accordingly ordered Respondents to re-serve their response and granted
Flemister an extension of time to file a reply brief after receiving the response. (Doc. No. 19.)
Respondents subsequently re-served the response, and Flemister filed a reply brief in support of
his petition on August 20, 2025, making the petition ripe for review. On September 10, 2025,
the Court issued an additional Order requiring Respondents to produce a transcript of Flemister’s
PCRA hearing because the transcript was not included in the supplemental exhibits that
Respondents initially filed. (Doc. No. 24.) Respondents produced the transcript as ordered on
September 11, 2025. (Doc. No. 25.)
II. LEGAL STANDARDS
A. Substantive Standard
Habeas corpus is an “extraordinary remedy” reserved for defendants who were
“grievously wronged” by criminal proceedings. See Calderon v. Coleman, 525 U.S. 141, 146
(1998). The exercise of restraint by a federal court in reviewing and granting habeas corpus
relief is appropriate due to considerations of comity and federalism. See Engle v. Isaac, 456 U.S.
107, 128 (1982). “The States possess primary authority for defining and enforcing the criminal
law. In criminal trials they also hold the initial responsibility for vindicating constitutional
rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power and
their good-faith attempts to honor constitutional law.” Id. States also have a recognized interest
in the finality of convictions that have survived direct review within the state court system. See
Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed by a person
in state custody “only on the ground that he is in custody in violation of the Constitution or laws
of the United States.” See 28 U.S.C. § 2254(a). If a claim presented in a Section 2254 petition
has been adjudicated on the merits in state court proceedings, the Anti-Terrorism and Effective
Death Penalty of 1996 (“AEDPA”) sets stringent limits on a federal court’s ability to issue a writ
of habeas corpus. Specifically, AEDPA states, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
See 28 U.S.C. § 2254(d).
The standard for obtaining habeas corpus relief under AEDPA is “difficult to meet.” See
Mays v. Hines, 592 U.S. 385, 391 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102
(2021)). Federal habeas corpus relief is meant to guard against “extreme malfunctions in the
state criminal justice systems” and is not meant to substitute for “ordinary error correction
through appeal.” See Harrington, 562 U.S. at 102–03 (citing Jackson v. Virginia, 443 U.S. 307,
332 n.5 (1979) (Stevens, J. concurring in judgment)). “Federal habeas courts must defer to
reasonable state-court decisions,” see Dunn v. Reeves, 594 U.S. 731, 732 (2021), and may only
grant habeas corpus relief when the state court’s decision “was so lacking in justification” that its
error was “beyond any possibility for fair minded disagreement,” see Mays, 592 U.S. at 391
(quoting Harrington, 562 U.S. at 102).
B. Exhaustion and Procedural Default
Absent unusual circumstances, a federal court should not entertain a petition for writ of
habeas corpus, unless the petitioner has first satisfied the exhaustion requirement articulated in
28 U.S.C. § 2254(b). Under Section 2254(c), a petitioner will not be deemed to have exhausted
his available state remedies if he had the right under the law to raise, by any available procedure,
the question presented. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A claim is exhausted
when it has been “fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275
(1971). To that end, the federal habeas claim “must be the substantial equivalent of that
presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The
petition must present the claim “in a manner that puts [the respondents] on notice that a federal
claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). “The
Supreme Court has instructed that a claim is not ‘fairly presented’ if the state court ‘must read
beyond a petition or brief . . . in order to find material’ that indicates the presence of a federal
claim.” Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 542 (3d Cir. 2014) (quoting
Baldwin v. Reese, 541 U.S. 27, 32 (2004)). Moreover, a habeas corpus petitioner has the burden
of proving the exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the
exhaustion requirement advances the goals of comity and federalism while reducing “piecemeal
litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001). Prisoners seeking to challenge
state court rulings issued by the Commonwealth of Pennsylvania may exhaust their claims by
presenting them to the Pennsylvania Superior Court and are not required to advance the claims
before the Pennsylvania Supreme Court. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir.
2004).
“When a claim is not exhausted because it has not been ‘fairly presented’ to the state
courts, but procedural rules bar the applicant from seeking further relief in state courts, the
exhaustion requirement is satisfied because there is an absence of available State corrective
process.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). When a claim has not been
exhausted in state court and state procedural rules bar the petitioner from any further attempts to
exhaust the claim, it is procedurally defaulted. See Shinn v. Ramirez, 596 U.S. 366, 371 (2022).
The purpose of the procedural default rule is to prevent habeas petitioners from avoiding the
exhaustion doctrine by defaulting their claims in state court. See Coleman v. Thompson, 501
U.S. 722, 732 (1991). In Cone v. Bell, 556 U.S. 449 (2009), the United States Supreme Court
explained:
It is well established that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s decision rests upon a state-law
ground that is independent of the federal question and adequate to support the
judgment. In the context of federal habeas proceedings, the independent and
adequate state ground doctrine is designed to ensure that the State’s interest in
correcting their own mistakes is respected in all federal habeas cases. When a
petitioner fails to properly raise his federal claims in state court, he deprives the
State of an opportunity to address those claims in the first instance and frustrates
the State’s ability to honor his constitutional rights. Therefore, consistent with the
longstanding requirement that habeas petitioners must exhaust available state
remedies before seeking relief in federal court, we have held that when a petitioner
fails to raise his federal claims in compliance with relevant state procedural rules,
the state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.
See id. at 465 (internal quotations and citations omitted).
However, habeas corpus review is not barred in every instance in which a state court
invokes a procedural rule to preclude its review of the federal claims asserted by a state prisoner.
A state procedural rule can preclude federal habeas corpus review “only when the state rule is
‘independent of the federal question [presented] and adequate to support the judgment.’” See
Levya v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199
(3d Cir. 2007)). The requirements of independence and adequacy are distinct. See id. A rule is
“independent” if it is not dependent on any federal constitutional question, but “[a] state
procedural ground will not bar federal habeas relief if the state law ground is ‘so interwoven with
federal law’ that it cannot be said to be independent of the merits of a petitioner’s federal
claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004). A rule is “adequate” if “it
was firmly established, readily ascertainable, and regularly followed at the time of the purported
default.” See Levya, 504 F.3d at 366 (quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir.
2001)).
A petitioner whose constitutional claims have not been addressed on the merits due to
procedural default can overcome the default, thereby allowing federal court review, if the
petitioner can demonstrate either: (1) “cause” for the default and “actual prejudice” as a result of
the alleged violation of federal law; or (2) that the failure to consider the claims will result in a
“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750. In order to show “cause
and prejudice” sufficient to overcome a state court default, a petitioner must demonstrate the
“cause” for his default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178,
192 (3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Under the “prejudice prong,” a petitioner
has the burden of showing “not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170
(1982); see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).
To show “fundamental miscarriage of justice,” a petitioner must establish that “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”
See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating actual innocence requires a
stronger showing than that needed to establish prejudice. See id. In Goldblum v. Klem, 510
F.3d 204 (3d Cir. 2007), the Third Circuit explained the applicable two-step inquiry as follows:
first, a “court must decide ‘whether the petitioner has presented new reliable evidence . . . not
presented at trial,’” and second, if a petitioner “puts forth new evidence not considered by the
jury, a court asks ‘whether it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.’” See id. at 225 (quoting Hummard v. Pinchak, 378
F.3d 333, 340 (3d Cir. 2004)). If a petitioner can establish cause and prejudice or a fundamental
miscarriage of justice, the Court excuses his default and reviews the merits of the claim
presented.
C. Standard for Ineffective Assistance of Counsel Claims
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
explained that there are two components to demonstrating a violation of the right to effective
assistance of counsel. First, the petitioner must show that counsel’s performance was deficient.
This requires showing that “counsel’s representation fell below an objective standard of
reasonableness.” See id. at 668; see also Williams v. Taylor, 529 U.S. 362, 390–91 (2000).
Second, under Strickland, the petitioner must show that he was prejudiced by the deficient
performance. “This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To
establish prejudice, the defendant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” See
id. at 694. The Strickland test is conjunctive and a habeas petitioner must establish both the
deficient performance prong and the prejudice prong. See id. at 687; Dooley v. Petsock, 816
F.2d 885, 889 (3d Cir. 1987).
When considering an ineffective assistance of counsel claim, the Court’s analysis is
“doubly deferential” when a state court has already decided that counsel’s performance was
adequate. See Dunn, 594 U.S. at 739. The Court must apply a high level of deference both to
counsel’s actions and to the state court’s determination that counsel’s actions were
constitutionally adequate. See id.; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)). The Court may only grant habeas corpus relief
if “every ‘fairminded jurist’ would agree that every reasonable lawyer would have made a
different decision.” See id. at 2411 (emphasis in original) (quoting Harrington, 562 U.S. at 101).
D. Standard for Sufficiency of Evidence Claims
Federal habeas courts considering sufficiency of evidence claims must view the evidence
in the light most favorable to the prosecution and determine whether “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson,
443 U.S. at 319 (emphasis in original). The Court must look to state law to determine the
substantive elements of the offense. See Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting
Jackson, 443 U.S. at 324 n.16). When the claim has been decided on its merits in state court, the
federal court must be doubly deferential: the jury’s verdict may only be set aside if no rational
finder of fact could have reached the same verdict and the state court decision upholding the jury
verdict may only be disturbed if it is objectively unreasonable. See Lambert v. Warden Greene
SCI, 861 F.3d 459, 467 (3d Cir. 2017) (citing Coleman, 566 U.S. at 650).
III. DISCUSSION
A. Exhaustion and Procedural Default
The Court will first consider the issues of exhaustion and procedural default because
Respondents contend that Flemister procedurally defaulted all claims except for his first
ineffective assistance of counsel claim. (Doc. No. 14.)
The Court disagrees with Respondents in all respects except with regard to Flemister’s
claim of cumulative error by counsel. The record of Flemister’s state court proceedings shows
that he asserted his Brady claim before the Superior Court on appeal from the denial of his
PCRA petition. See Flemister, 2022 WL 3652713, at *7. Although the Superior Court noted
that this was the first time Flemister had asserted the issue in state court, the court ultimately
considered and denied the claim on its merits. See id. Flemister also properly asserted his
related ineffective assistance of counsel argument during PCRA proceedings. See id.
Flemister asserted his argument that the Commonwealth failed to prove an element of the
charged offense on direct appeal from his conviction. See 2016 WL 5920672, at *3. Flemister
additionally argued that counsel was ineffective for failing to argue this point in his PCRA
appeal. See Flemister, 2022 WL 3652713, at *4.
Flemister’s claim of cumulative error by trial counsel, however, is procedurally defaulted.
A claim of cumulative error by trial counsel is a separate and independent claim of ineffective
assistance of counsel that must be exhausted in state court separately from a petitioner’s other
ineffective assistance of counsel claims. See Collins, 742 F.3d at 541. Here, it is clear from the
state court record that Flemister failed to assert his claim of cumulative error by trial counsel in
state court. Hence, this claim is procedurally defaulted, and the Court will not consider it on its
merits.1
B. Merits
As noted above, the Court’s analysis proceeds to the merits as to all claims other than
Flemister’s claim of cumulative error by trial counsel. Flemister first contends that his trial
counsel was ineffective by failing to impeach Chambers and Dunbar with their past crimen falsi
convictions. (Doc. 1 at 5). The Superior Court denied this claim on its merits, noting that
counsel made the strategic decision not to attack Dunbar’s credibility because “the basis of
[Flemister’s] defense strategy was on Dunbar’s inability to identify [him] as the shooter,” and
that Chambers did not have past convictions that qualified as crimen falsi See Flemister, 2022
WL 3652713, at 4.
The Superior Court’s conclusion is neither contrary to, nor an unreasonable application
of, clearly established federal law. Further it is not nor an unreasonable determination of the
facts in light of the evidence presented. This Court must grant heavy deference to counsel’s
strategic decision not to impeach Dunbar any can only grant habeas relief if “every ‘fairminded
jurist’ would agree that every reasonable lawyer would have made a different decision.” See
Dunn, 594 U.S. at 739 (emphasis in original) (quoting Harrington, 562 U.S. at 101). Flemister’s
claim for relief plainly fails to clear this hurdle—counsel clearly had a reasonable strategic basis
1 Flemister concedes that this claim is procedurally defaulted in his reply brief. (Doc. No. 23 at
7).
for not impeaching Dunbar’s credibility. See Doc. No. 25 at 25, 29 (providing testimony from
counsel that her trial strategy was to get Dunbar to testify that he could not identify Flemister as
the shooter)). As for counsel’s failure to impeach Chambers, the Superior Court concluded that
there was no meritorious basis on which he could be impeached, and trial counsel cannot be
faulted for failing to advance a meritless argument. See Real v. Shannon, 600 F.3d 302, 309 (3d
Cir. 2010); United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
Flemister next argues that the Commonwealth committed a Brady violation by failing to
disclose evidence of its “favorable treatment, deal, and/or understanding it had” with Hill and
that counsel was ineffective for failing to investigate evidence related to this claim or confront
Hill about the motives for his testimony. The Superior Court denied the Brady claim on its
merits, concluding that it was simply a “bald accusation that the Commonwealth dismissed
charges against a witness who testified against [Flemister] at trial” that was not supported by
“anything beyond mere speculation.” See Flemister, 2022 WL 3652713, at *7. The court
concluded that Flemister had not sufficiently developed the claim to allow the case to be
remanded for an evidentiary hearing and accordingly denied it on its merits. Id.2
The Superior Court’s conclusion regarding the related ineffectiveness claim is similarly
reasonable. Flemister argues that counsel “failed to investigate and confront” Hill about his
cooperation. (Doc. 1 at 6.) The Superior Court denied this claim, concluding that trial counsel
2 An evidentiary hearing on this claim was not conducted during the PCRA proceedings
because, as noted above, Flemister failed to assert this claim in his PCRA petition and raised it
for the first time on appeal to the Superior Court. See Flemister, 2022 WL 3652713, at *7.
Flemister has again requested an evidentiary hearing on this claim in this case. (Doc. No. 23 at
5.) This Court, however, may not conduct an evidentiary hearing when a habeas petitioner has
“failed to develop the factual basis of a claim in State court proceedings.” See 28 U.S.C. §
2254(e)(2). Flemister’s failure to raise this claim in his PCRA petition constitutes a failure to
develop the factual record of the claim. Accordingly, because federal law precludes this Court
from conducting an evidentiary hearing, the Court will deny the request for a hearing.
thoroughly cross-examined Hill regarding his cooperation and motivation for testifying. See
Flemister, 2022 WL 3652713, at *7. This conclusion is neither contrary to nor an unreasonable
application of clearly established federal law. Accordingly, the Court will deny this habeas
claim.
Finally, Flemister’s third argument asserts that the Commonwealth failed to meet its
burden to establish the elements of attempted murder, and that counsel was ineffective for failing
to hold the state to its burden of proof. (Doc. 1 at 8.) The Superior Court summarized the proof
required to convict a defendant of attempted murder under Pennsylvania law as follows:
The Crimes Code provides:
(a) Definition of attempt.–A person commits an attempt when,
with intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of that
crime.
18 Pa.C.S. § 901. “A person may be convicted of attempted murder if he takes a
substantial step toward the commission of a killing, with the specific intent in mind
to commit such an act.” Commonwealth v. Jackson, 955 A.2d 441, 444
(Pa.Super.2008) (internal citations and quotations omitted). “The substantial step
test broadens the scope of attempt liability by concentrating on the acts the
defendant has done and does not any longer focus on the acts remaining to be done
before the actual commission of the crime.” Id. “[A]ttempted murder requires an
intent to bring about that result described by the crime of murder (i.e., the death of
another).” Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The
mens rea required for first-degree murder, specific intent to kill, may be established
solely by circumstantial evidence.” Jackson, 995 A.2d at 444. “The law permits
the fact finder to infer that one intends the natural and probable consequences of
his acts.” Id. “The offense of attempt to kill is completed by the discharging of a
firearm at a person with the intent to kill, despite the fortuitous circumstances that
no injury is suffered.” Commonwealth v. Mapp, 335 A.2d 779, 781
(Pa.Super.1975) (necessary intent found for attempted murder where defendant
shot at victim and missed). Additionally, our Supreme Court has repeatedly
determined that “[t]he use of a deadly weapon on a vital part of the body is sufficient
to establish the specific intent to kill” required for a first-degree murder conviction.
See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007); Commonwealth v.
Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific intent to kill may be inferred
from the use of a deadly weapon on a vital part of a victim's body.”). Further,
evidence of flight is admissible for the purpose of establishing guilty knowledge.
Commonwealth v. Gooding, 649 A.2d 722, 726 (Pa.Super.1994) (citing
Commonwealth v. Jones, 319 A.2d 142, 149 (Pa.1974)).
See Flemister, 2016 WL 5920672, at *4.
Applying this standard, the Superior Court concluded that the Commonwealth established
all the elements of attempted murder because “viewing all of the evidence in the light most
favorable to the Commonwealth, there was sufficient evidence for the jury to find that Appellant
used an unlicensed handgun to inflict injury on a vital part of the victim’s body.” See id.
Having reached this conclusion on direct appeal, the Superior Court held during Flemister’s
PCRA appeal that the ineffective assistance of counsel claim regarding the sufficiency of
evidence failed because any argument counsel could have made on this issue would have been
meritless. See Flemister, 2022 WL 3652713, at *5.
In light of the substantial deference this Court owes to the Superior Court’s conclusions
as to sufficiency of evidence and ineffective assistance of counsel claims, Flemister’s habeas
corpus claims clearly fail. There was plainly sufficient evidence at trial to sustain the
Commonwealth’s burden to prove attempted murder, and any ineffective assistance of counsel
claim that counsel failed to hold the Commonwealth to this burden is therefore meritless.
IV. CONCLUSION
For the foregoing reasons, the Court will deny the petition for writ of habeas corpus with
prejudice. A certificate of appealability will not issue because no reasonable jurist would
disagree with this ruling or conclude that the issues presented are adequate to deserve
encouragement to proceed further. See Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003)). An appropriate Order follows.
s/ Yvette Kane _
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania