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Flamer v. Coleman

September 17, 2009

ABDUL FLAMER
v.
SUPERINTENDENT COLEMAN, ET AL.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.

MEMORANDUM

Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Abdul Flamer ("Petitioner") (Doc. No. 1) and the Respondents' response thereto ("Response") (Doc. No. 9). Petitioner is currently incarcerated at the Fayette State Correctional Institution in LaBelle, Pennsylvania. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY

The state court outlined the facts of the instant case as follows:

At approximately 11:00 p.m., on the evening of November 28, 1999, Morgan Hall and Orlando Butler (the victims) were sitting in their parked vehicle when two [2] men, identified as [Petitioner] and Jerome Pinkard (Pinkard) approached the parked car. Hall started the car as [Petitioner] approached the vehicle and gestured to Butler for a cigarette. Butler advised Hall to drive away but before Hall could act, [Petitioner] entered the unlocked backseat passenger area of the vehicle and demanded the victims' valuables. The victims did not comply immediately with the demand, and, as a result, [Petitioner] pistol-whipped Butler several times before repeating his demand.

After the beating, the victims complied with [Petitioner's] demand and surrendered their valuables. At that time, Pinkard approached the car and thrust his hand into Hall's jacket to search for other valuables. Pinkard then ordered Butler to exit the vehicle. Butler complied, and Pinkard demanded his jacket. Butler did not give Pinkard the jacket but, instead, fled the scene. Pinkard gave chase, leaving [Petitioner] and Hall alone in the vehicle.

After Pinkard and Butler left the scene, [Petitioner] demanded Hall's jacket. Hall fumbled with the coat as he was attempting to remove it, and [Petitioner] became irritated with Hall. [Petitioner] pressed the gun behind Hall's left ear and exclaimed, "Forget this, I'm going to kill you." Hall attempted to wrestle the gun away from [Petitioner], but [Petitioner] shot Hall in the neck. [Petitioner] exited the vehicle, ran into a waiting getaway car and drove off. Hall managed to stumble to a nearby home and asked the owner of the home to call 911.

Commonwealth v. Flamer, 830 A.2d 1045 (Pa. Super. 2003); No. 2285 EDA 2002, at 1-2 (Pa. Super. June 6, 2003) (unpublished memorandum), attached as Appendix "A" to Response (Doc. No. 9).

On December 4, 2001, after a non-jury trial, the Honorable Pamela Pryor Dembe, Court of Common Pleas of Philadelphia County, found Petitioner guilty of two (2) counts of robbery, two (2) counts of attempted murder, one (1) count of aggravated assault, and one (1) count of conspiracy. On June 24, 2002, Judge Dembe sentenced Petitioner to an aggregate term of twenty-seven and one-half (271/2 to seventy (70) years of imprisonment.

Petitioner filed a direct appeal arguing:

1. ineffective assistance of trial counsel for failure to fully advise Petitioner as to his pleading options including the right to enter an open plea or a plea of nolo contendere, and for guaranteeing Petitioner that he would be acquitted of the felony charges;

2. insufficiency of the evidence to sustain Petitioner's conviction for robbery;

3. the trial court erred by denying Petitioner's motion to suppress the identification of Petitioner by photo array; and

4. the trial court erred by denying Petitioner's Rule 600 motion for speedy trial, and by failing to observe Rule 704 requiring Petitioner be sentenced within ninety (90) days of his conviction.

The Pennsylvania Superior Court affirmed the judgment of sentence on June 6, 2003. Commonwealth v. Flamer, 830 A.2d 1045 (Pa. Super. 2003); No. 2285 EDA 2002 (Pa. Super. June 6, 2003) (unpublished memorandum), attached as Appendix "A" to Response (Doc. No. 9). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on November 25, 2003. Commonwealth v. Flamer, 837 A.2d 1177 (Pa. 2003); No. 297 EAL 2003 (Pa. 2003).

On December 30, 2003, Petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541, et seq. Counsel was appointed to represent Petitioner and he filed an amended petition on June 24, 2004.*fn1 On May 13, 2005, the PCRA court dismissed Petitioner's PCRA petition. Petitioner appealed the denial of PCRA relief to the Superior Court, which affirmed the PCRA court's ruling on March 31, 2008. Commonwealth v. Flamer, 953 A.2d 828 (Pa. Super. 2008); No. 1607 EDA 2005 (Pa. Super. Mar. 31, 2008) (unpublished memorandum), attached as Appendix "B" to Response (Doc. No. 9). Petitioner did not seek review in the Pennsylvania Supreme Court.

On June 27, 2008, Petitioner filed the instant petition for writ of habeas corpus claiming that:

1. the evidence was insufficient as a matter of law to find Petitioner guilty of the robbery of Orlando Butler;

2. the trial court erred by failing to suppress the photo array identification;

3. trial counsel rendered ineffective assistance by failing to present the testimony or confession of Jerome Pinkard;

4. trial counsel rendered ineffective assistance by failing to object at sentencing to the offense gravity ...


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