Keith Whitmore v. Superintendent Forest Sci

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-2237
____________
KEITH WHITMORE,
Appellant
v.
SUPERINTENDENT FOREST SCI;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PA
____________
On Appeal from the United States District Court
for the Eastern District Pennsylvania
(D.C. Civil No. 2:20-cv-01390)
District Judge: Honorable Gene E. K. Pratter
____________
Argued on December 10, 2025
Before: KRAUSE, PHIPPS and FISHER, Circuit Judges.
(Filed: March 13, 2026)
Rosemary Auge ARGUED
Federal Community Defender Office for the Eastern District of Pennsylvania
Capital Habeas Unit
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106
Peter F. Andrews ARGUED
David Napiorski
Anthony Salzetta

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Philadelphia County Office of District Attorney
3 S Penn Square
Philadelphia, PA 19107
____________
OPINION*
____________
FISHER, Circuit Judge.
Although habeas relief is difficult to obtain, a court must provide each petitioner a
fair opportunity. Keith Whitmore never received that opportunity. In his habeas petition,
Whitmore alleges that he informed his trial counsel that Officer Dennis Johnson, a critical
witness, was biased against him and that his trial counsel failed to investigate Johnson’s
bias. Without the information that might have been discovered through investigation,
Whitmore’s trial counsel failed to impeach Officer Johnson. Whitmore was subsequently
convicted of first-degree murder, as well as other serious crimes, and received a
mandatory life sentence without parole. Whitmore’s allegations, if true, show ineffective
assistance. But neither the state nor the federal district court gave Whitmore a chance to
prove those allegations. We will remand for an evidentiary hearing and give him that
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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chance.1
Because the state court denied Whitmore’s petition on the merits, we can grant
him federal habeas relief only if the state court’s decision is contrary to clearly
established federal law or is an unreasonable application of that law.2 The state court’s
decision is neither. First, the Superior Court used the governing Strickland v.
Washington3 standard and, therefore, applied the correct legal rule.
Second, Whitmore cannot show that the Superior Court unreasonably applied
Strickland. True, counsel’s failure to conduct a pretrial investigation generally constitutes
ineffective assistance.4 And Whitmore swears that, although he informed his trial counsel
about Johnson’s harassing, intimidating, and threatening him because of his relationship
with Johnson’s niece, counsel failed to investigate this bias. But only Whitmore’s self-
serving affidavit supports these allegations. So, the Superior Court correctly ruled that, at
1 The District Court had jurisdiction under 28 U.S.C. § 2254(a) (habeas corpus).
We have jurisdiction under 28 U.S.C. §§ 1291 (final decisions of district courts) and
2253(a) (habeas corpus appeals).
2 28 U.S.C. § 2254(d)(1).
3 466 U.S. 668, 687 (1984). Under Pennsylvania law, the familiar two-part
Strickland analysis is a three-part test. “[T]o prove counsel ineffective, the petitioner
must show that: (1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice
as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Despite the additional
prong, the Pennsylvania standard is identical to Strickland. Commonwealth. v. Pierce,
527 A.2d 973, 977 (Pa. 1987); Werts v. Vaughn, 228 F.3d 178, 203–04 (3d Cir. 2000).
4 United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989); see also Strickland, 466
U.S. at 690–91.

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that time, “the record [did] not support” Whitmore’s claim.5
However, Whitmore never got the opportunity to develop that record. Although he
repeatedly requested an evidentiary hearing, neither the state nor the district court gave
him one. Because Whitmore alleges facts that, if proven, would entitle him to federal
habeas relief, the District Court should have given him a hearing.
Both statute and precedent limit a habeas petitioner’s ability to get an evidentiary
hearing. We conclude—and each party agrees6—that neither limit applies here. Under 28
U.S.C. § 2254(e)(2), a federal district court may not hold an evidentiary hearing if the
petitioner “has failed to develop the factual basis of a claim in State court proceedings.”
But Whitmore never “failed to develop the factual basis of [his] claim.”7 He promptly
sought “an evidentiary hearing in the manner required by state law,”8 but the state court
refused. Because Whitmore is again asking for his first bite at the apple, § 2254(e)(2)’s
bar does not apply.
The Supreme Court explained in Cullen v. Pinholster “that review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.”9 We reasoned that, “[i]n light of Pinholster, district courts cannot
conduct evidentiary hearings to supplement the existing state court record under 28
5 App. 500.
6 Appellant’s Br. 46–48; Appellees’ Br. 36 n.2.
7 28 U.S.C. § 2254(e)(2).
8 Morris v. Beard, 633 F.3d 185, 195 (3d Cir. 2011).
9 563 U.S. 170, 181 (2011).

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U.S.C. § 2254(d).”10 But “there is an exception when the state court has denied the
petitioner a hearing because it thought that he would lose even if his allegations were
presumed true.”11 In such a circumstance, “Pinholster’s bar does not apply if that ruling
was unreasonable as a matter of clear federal law.”12
Whitmore satisfies this exception. The Superior Court rested its conclusion that
Whitmore’s allegations “lack[ed] arguable merit” on two alternative grounds.13 One was
that “the record does not support a finding that counsel was even aware of the supposed
animosity Johnson harbored toward Whitmore.”14 But the other was that, even accepting
the truth of Whitmore’s “self-serving affidavit,” Whitmore needed “to produce []
evidence to corroborate this allegation” in order to meet the threshold for “arguable
merit.”15 That is, because the Superior Court found that Whitmore’s allegations, even if
true, would not merit relief, the Superior Court denied Whitmore’s request for a hearing
and dismissed his petition.16 But, as we explain below, Whitmore “has alleged facts that
would make [his lawyer’s] conduct objectively unreasonable under Strickland and the
10 Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011).
11 Fooks v. Superintendent, Smithfield SCI, 96 F.4th 595, 598 (3d Cir. 2024).
12 Id.
13 App. 500.
14 Id.
15 Id.; Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015).
16 See App. 500 (finding that Whitmore’s claim “lack[ed] arguable merit”);
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (explaining that “if a petitioner
raises allegations, which, even if accepted as true, do not establish the underlying claim
of trial counsel ineffectiveness, he or she will have failed to establish the arguable merit
prong related to the claim”).

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[state court’s] contrary ruling unreasonable under [S]ection 2254(d)(1).”17 Accordingly,
Pinholster does not bar an evidentiary hearing here.
Although nothing prevents him from getting a federal evidentiary hearing,
Whitmore is not automatically entitled to one. Whitmore “must make ‘a prima facie
showing that would enable him to prevail on the merits of [his] claim.’”18 In other words,
we ask whether Whitmore’s “factual allegations, ‘if true, would entitle [him] to federal
habeas relief.’”19 But “if the record refutes [his] factual allegations or otherwise precludes
habeas relief,” no hearing is required.20 “[W]e review the state court’s decision on the
merits deferentially, granting relief only if it was unreasonable.”21 Under Strickland’s
familiar two-part test, we consider whether counsel’s performance was deficient and, if
so, whether it prejudiced Whitmore.22 Whitmore has made a prima facie showing of
ineffective assistance.
First, Whitmore has sufficiently alleged deficient performance, which is conduct
that “fell below an objective standard of reasonableness.”23 Strickland permits trial
counsel to “make a reasonable decision that makes particular investigations
17 Fooks, 96 F.4th at 598 (first alteration in original) (quoting Jordan v. Hepp, 831
F.3d 837, 850 (7th Cir. 2016) (distinguishing Pinholster on similar grounds)).
18 Id. (alteration in original) (quoting Morris, 633 F.3d at 196).
19 Id. (alteration in original) (quoting Schriro v. Landrigan, 550 U.S. 465, 474
(2007)).
20 Schriro, 550 U.S. at 474.
21 Fooks, 96 F.4th at 598.
22 Strickland, 466 U.S. at 687.
23 Id. at 688.

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unnecessary.”24 But when there is a “complete failure to investigate,” trial counsel “has
not yet obtained the facts on which such a decision could be made,” and trial counsel’s
failure to investigate “cannot be characterized as the product of strategic judgment.”25
To support his ineffectiveness claim, Whitmore attached to his state-court petition
an affidavit in which he swears that before trial he informed his counsel about Johnson’s
bias. Whitmore claimed that he told his counsel about several specific instances where
Johnson harassed, intimidated, and threatened him because he was dating Johnson’s
niece. When he continued to bring Johnson’s bias to counsel’s attention, Whitmore says
counsel assured him that “he had someone looking into it.”26 But, Whitmore argues, the
record is devoid of evidence that counsel conducted any investigation whatsoever, and he
asserts that counsel never did.27
The Commonwealth responds that the record does not support Whitmore’s
allegation. Johnson testified that he recognized Whitmore from the neighborhood.
Concerned that the jury could infer that Johnson knew Whitmore from a prior arrest,
24 Id. at 691.
25 Gray, 878 F.2d at 711.
26 App. 426.
27 Our dissenting colleague suggests that our analysis “expands” Whitmore’s
arguments “to include a failure to investigate Johnson’s alleged bias.” Dissenting Op. 1.
But Whitmore raised this argument from the beginning and throughout this case. See,
e.g., App. 369 (arguing that “trial counsel ineffectively failed to investigate . . . the
credibility of [Johnson]” in his state habeas petition); App. 542 (same in the District
Court habeas petition); Appellant’s Br. 21 (“Trial counsel was ineffective for failing to
investigate . . . .”).

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Whitmore’s counsel asked for a sidebar and requested a limiting instruction. The judge
told Whitmore’s counsel that he could re-call Johnson to the stand and clarify that
Johnson knew Whitmore from his years patrolling the area. But counsel declined because
he was “afraid of opening the door.”28 The trial judge asked what Whitmore’s counsel
was afraid of, and Whitmore’s trial counsel said, “I don’t know if [Johnson] arrested
[Whitmore] in the past.”29 The prosecutor chimed in, “He has arrested him. He
recognized him from the neighborhood, but he was also arrested for narcotics.”30
According to the Commonwealth, the fact that Whitmore’s counsel failed to
mention at sidebar Johnson’s alleged history with Whitmore undermines Whitmore’s
assertion that he informed his trial counsel about Johnson’s alleged bias. Whitmore
responds that the sidebar discussion shows only “that counsel did so little investigation
into Johnson’s prior relationship with Whitmore that he did not even know whether
Johnson had previously arrested Whitmore.”31
Whitmore’s position is the more logical one. Nothing in the record refutes
Whitmore’s allegation that he informed trial counsel of Johnson’s bias. In fact, the
discussion at sidebar suggests that Whitmore’s counsel failed to conduct even a cursory
investigation into Whitmore’s past relations with Johnson. Although one could infer from
28 App. 177.
29 Id.
30 Id.
31 Appellant’s Br. 24.

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counsel’s comments that he investigated and simply did not recall whether any of the
alleged incidents of harassment led to an arrest, this is a strained and less plausible
reading of counsel’s comment. The more natural reading is that counsel did not know
whether Johnson had earlier arrested Whitmore because counsel failed to investigate
Johnson’s prior interactions with Whitmore.
The Commonwealth next argues that, even if Whitmore told his counsel about
Johnson’s alleged bias, a competent trial counsel may have sound reasons for failing to
question a witness about a defendant’s prior negative interactions with a police officer.
For example, the Commonwealth argues that Whitmore’s prior negative encounters with
Johnson would have been more prejudicial to the defense than the prosecution and that
impeaching Johnson would invite the testimony of other officers, which could in turn
open the door to testimony disclosing the circumstances surrounding Whitmore’s arrest at
Hawthorne Street—a separate incident that occurred about two months after the Sliwinski
shooting.32
Each of these might be a reason not to impeach Johnson. But none explain why a
competent attorney would not have investigated Johnson’s bias in the first place. Beyond
Whitmore’s affidavit, “there is no record . . . as to what preparation or investigation, if
32 The trial court did not allow the Commonwealth to elicit testimony from Officer
Johnson that, during Whitmore’s arrest at the Hawthorne Street incident, Kevin Lucas
claimed that Whitmore shot at him and threw a gun into the bushes. App. 286. Likewise,
the trial court prohibited the Commonwealth from calling Lucas to testify about
Whitmore’s shooting a gun on Hawthorne Street. Id.

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any, was performed by counsel . . . , nor is there any record of why counsel [might have]
chose[n] not to undertake investigation . . . .”33 Based on Whitmore’s affidavit and the
sidebar conversation, we cannot infer that counsel investigated and, therefore, we cannot
defer to counsel’s decision not to impeach Johnson. 34 Accordingly, Whitmore has
established a prima facie case that his trial counsel performed deficiently.
Second, Whitmore has alleged facts that, if true, would show that trial counsel’s
alleged deficiency prejudiced Whitmore. To show prejudice, Whitmore “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”35 A reasonable probability is one “sufficient
to undermine confidence in the outcome.”36 Prejudice “must be evaluated in light of the
33 Marshall v. Hendricks, 307 F.3d 36, 106 (3d Cir. 2002).
34 Because counsel’s impeaching Johnson for bias might have “plac[ed] evidence
of [Johnson’s] bad character or criminal history before the jury,” Dissenting. Op. 2, our
dissenting colleague concludes that, even presuming the truth of Whitmore’s allegations,
counsel’s failure to investigate Johnson’s bias was “objectively reasonable based on the
preexisting state-court record . . . ,” Dissenting. Op. 3. Not so. As discussed above, ante
at 6–7, a trial counsel may reasonably conclude that a particular decision is unnecessary;
however, a counsel’s “complete failure to investigate,”—which is precisely what
Whitmore alleges and what the pre-existing state-court record shows—“cannot be
characterized as the product of strategic judgment.” Gray, 878 F.2d at 711. Without first
investigating Johnson’s bias, trial counsel lacked the facts necessary to reasonably
determine whether impeaching Johnson’s bias was appropriate. After all, if trial counsel
investigated so little (if at all) that he did not even know whether Johnson previously
arrested Whitmore, see App. 177, trial counsel could not have plausibly determined that
the value of impeaching Johnson’s bias would be outweighed by the potential prejudice
Whitmore might suffer by opening the door to his criminal history.
35 Strickland, 466 U.S. at 694.
36 Id.

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totality of the evidence at trial: ‘a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.’”37
Whitmore argues that his counsel’s failure to investigate Johnson’s bias caused
prejudice because, with information obtained through an investigation, trial counsel could
have impeached Johnson, who he argues was a critical witness for the Commonwealth.
The Commonwealth responds that Whitmore overstates the value of Johnson’s testimony
and that impeaching Johnson would have opened the door to Whitmore’s prior bad acts,
which would have proved prejudicial to Whitmore.
Officer Johnson’s testimony was critical. Although Johnson did not testify that he
saw Whitmore with the gun or that he saw Whitmore hide the gun, Johnson was the only
witness who testified about Whitmore’s close proximity to the firearm at the Hawthorne
incident,38 which the Commonwealth presented as the weapon definitively used in the
shooting where Andrew Sliwinski was wounded and Scott Sliwinski was killed.39 No
37 Gray, 878 F.2d at 711 (quoting Strickland, 466 U.S. at 696).
38 See App. 175 (Johnson’s testifying that he went to the bushes near where
Whitmore was standing and “observe[d] a silver gun”).
39 See App. 291–92 (Andrew Sliwinski describing the shooting); App. 318
(Commonwealth emphasizing that Whitmore was “arrested with a gun”); App. 319
(Commonwealth arguing that Whitmore “was found with th[e] murder weapon just three
blocks away” from where the Sliwinski shooting occurred); App. 319–20
(Commonwealth telling the jury that “[y]ou know that this was the gun” and “[y]ou
know, based on the evidence that this is what killed Scott Sliwinski”).

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other witness testified about Whitmore’s proximity to the firearm.40 In fact, the testimony
underscores the importance of the firearm to the Commonwealth’s case. Even after
interviewing JL and NP—the two juvenile witnesses who identified Whitmore as the
Sliwinski shooter—the police did not apply for an arrest warrant until “some other
information came forward later on.”41 The “other information” was that “[Whitmore] had
been arrested with th[e] weapon.”42
Notwithstanding Johnson’s testimony, the Commonwealth argues that impeaching
his credibility would not have changed the jury’s verdict because this case primarily
relied on the testimony of the two juvenile eyewitnesses. But those eyewitnesses,
important as they were, testified inconsistently with one another. NP said that he saw
Whitmore with a silver gun, but JC said he saw Whitmore with a black gun. And
although NP consistently identified Whitmore as the shooter, JC testified that the shooter
looked like Whitmore “but [he] couldn’t really tell.”43 These identifications are not
overwhelmingly supportive of the jury’s verdict. Without Johnson’s testimony
connecting Whitmore to the firearm, there is a reasonable probability that the jury would
40 See, e.g., App. 178–79 (Detective Hopkins testifying that he recovered the
firearm, but never mentioning Whitmore); App. 179–95 (Officer Weitman testifying only
about his ballistics examination of the firearm); App. 296 (Detective Bamberski, who was
not present at Whitmore’s arrest, testifying without personal knowledge that Whitmore
was arrested with a gun).
41 App. 296.
42 Id.
43 App. 269.

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not have convicted Whitmore.
The Commonwealth argues, however, that Whitmore’s trial counsel could not
have meaningfully exposed Johnson’s alleged bias without opening the door to
Whitmore’s prior bad acts, including an occasion when Johnson previously arrested
Whitmore for narcotics. But besides the prosecutor’s comment at sidebar (which is not
evidence), nothing in the record shows that Johnson previously arrested Whitmore and, if
so, whether the arrest led to a conviction. Moreover, a prior arrest for narcotics would
have only a minimal effect, if any, on the jury’s perception of Whitmore, who NP and JC
already described as a drug dealer. The Commonwealth also argues that on re-direct,
Johnson might have testified that, just before Whitmore’s arrest on Hawthorne Street,
Kevin Lucas and Whitmore shot at each other. But Johnson’s testimony alone supports
this assertion—no one other than Johnson heard Lucas’s version of events, and Lucas
later recanted. Without more, we cannot say that impeaching Johnson would have hurt
Whitmore’s case more than helping it. Accordingly, Whitmore has shown that he was
prejudiced by his trial counsel’s alleged deficiency.
In light of the foregoing analysis, Whitmore has established a prima face case of
ineffective assistance. At the very least, a “hearing would have the potential to advance
the petitioner’s claim.”44 Yet, the Superior Court overread the record to foreclose habeas
44 Morris, 633 F.3d at 196 (quoting Campbell v. Vaughn, 209 F.3d 280, 287 (3d
Cir. 2000)).

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relief. Although Whitmore “cannot show that the Superior Court applied Strickland
unreasonably to the non-existent factual record, he has shown that it unreasonably held
his allegations meritless under Strickland even if they were true.”45 So, the Superior
Court should have remanded for a hearing. And because Whitmore never got the state
evidentiary hearing he sought, he should have gotten such a hearing in federal court. The
District Court erred by not giving him one.
Therefore, we will vacate and remand to the District Court for a hearing.
45 Fooks, 96 F.4th at 599.

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Whitmore v. Superintendent, Forest SCI, No. 22-2237
PHIPPS, Circuit Judge, dissenting.
The theory behind Keith Whitmore’s habeas petition seeking relief from his
convictions for first-degree murder, attempted murder, aggravated assault, carrying a
firearm without a license, and possession of an instrument of a crime, is that Dennis
Johnson, the police officer who found the gun alleged to be the murder weapon, was
motivated to link the weapon to Whitmore because he did not like Whitmore dating his
niece. At first, that bad-motive or bias theory sounds promising, as does Whitmore’s Sixth
Amendment claim that his counsel was ineffective for not exploiting Johnson’s bias at trial.
See Order, ECF No. 10 (3d Cir. May 24, 2023) (granting a certificate of appealability “as
to [Whitmore’s] claim that counsel rendered ineffective assistance by failing to impeach
Officer Dennis Johnson regarding his personal bias toward [Whitmore]” (emphasis
added)). The Majority Opinion buys into that argument, expands it (beyond the scope of
the certificate of appealability) to include a failure to investigate Johnson’s alleged bias,
and concludes that the District Court erred by denying an evidentiary hearing to Whitmore
to develop an ineffective-assistance-of-counsel claim for failure to investigate.
That chain of reasoning is flawed. It was objectively reasonable for Whitmore’s
counsel not to investigate Johnson’s bias more thoroughly because the introduction of any
evidence of Johnson’s bias at trial would be highly likely to backfire. The options for
introducing evidence of Johnson’s bias – through cross-examination of Johnson or through
the direct testimony of his niece, another witness, or even Whitmore himself – would open
the door and allow the prosecution to use otherwise inadmissible evidence to rehabilitate
Johnson’s credibility. Those rehabilitation efforts could include justifying Johnson’s
alleged dislike of Whitmore dating his niece. And with the door open, the prosecution

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could seek to elicit that Johnson’s bias was based on his opinion that Whitmore had bad
character – or worse, that his bias was based on Whitmore’s prior arrests and convictions.
When viewed through the lens of the two elements of a Sixth Amendment
ineffective-assistance-of-counsel claim – deficient performance and prejudice – Whitmore
cannot make the requisite prima facie showing for an evidentiary hearing, and without one,
his habeas petition was correctly denied. See Fooks v. Superintendent, Smithfield SCI,
96 F.4th 595, 598 (3d Cir. 2024) (explaining that § 2254(d)(1) evidentiary hearings are not
“automatic” but instead require a habeas petitioner to present a prima facie case on the
merits of his claim). See generally Strickland v. Washington, 466 U.S. 668, 687 (1984).
As to performance, courts are reluctant to second-guess strategic decisions of
counsel. See id. at 691 (“[A] particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.”). Yet, for Whitmore to win requires just that, questioning and
doubting the objective reasonableness of not investigating Johnson’s alleged bias despite
the potential for any impeachment of Johnson on bias grounds to do far more harm than
good. Even more, such a hearing is unnecessary since it is objectively reasonable for
counsel to try – sometimes at great cost – to avoid placing evidence of a criminal
defendant’s bad character or criminal history before the jury, and impeaching Johnson on
bias grounds would open the door to those lines of inquiry. See Lesko v. Sec’y Pa. Dep’t
of Corr., 34 F.4th 211, 238 (3d Cir. 2022) (recognizing the “potentially catastrophic risk”
associated with opening the door to evidence of a criminal defendant’s criminal history).
Thus, even if Whitmore’s allegations of his counsel’s nonfeasance – not investigating and
not impeaching – were presumed true, they were objectively reasonable based on the
preexisting state-court record, so no evidentiary hearing was needed. See Cullen v.

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Pinholster, 563 U.S. 170, 181 (2011) (announcing the general principle that “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits”); cf. Fooks, 96 F.4th at 598 (articulating an exception to the
Pinsholster principle “when the state court has denied the petitioner a hearing because it
thought that he would lose even if his allegations were presumed true”). Accordingly,
based only on the performance prong, the District Court did not abuse its discretion in
denying an evidentiary hearing or err as a matter of law in denying Whitmore’s § 2254
habeas application.1
For similar reasons, the prejudice prong is unmet. Further investigation alone or
even further investigation coupled with a successful impeachment of Johnson would not
have a “reasonable probability” of changing the outcome of the trial. Strickland, 466 U.S.
at 694; see also Ellison v. United States, 120 F.4th 338, 340 (3d Cir. 2024), cert. denied,
145 S. Ct. 1963 (2025). Again, impeaching Johnson on bias grounds would open the door
to the reasons for Johnson’s bias, and those could easily have had greater persuasive force
with the jury than successful proof of Johnson’s bias. In addition, Johnson was not the
only witness the prosecution called to prove that Whitmore was the shooter – there were
also the two juvenile eyewitnesses. While their testimony was not airtight, they did
corroborate Johnson’s association of Whitmore with the gun. So even if defense counsel
had investigated Johnson’s bias and impeached Johnson at trial on those grounds, there
was corroboration of Johnson’s testimony and independent grounds for the jury to have
1 The Majority Opinion reaches the opposite conclusion by characterizing Whitmore’s
challenge to his counsel’s performance as a “complete failure to investigate.” United States
v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). But the Supreme Court’s pronouncement
continues to govern: “strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690–91. And as explained, even
crediting Whitmore’s account, his attorney’s decisions not to investigate Johnson’s bias or
to impeach him were objectively reasonable.

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convicted Whitmore. Altogether, there is not a reasonable probability that further
investigation of Johnson’s potential bias or even impeachment of Johnson on bias grounds
would have altered the outcome of trial. Without a prima facie case of prejudice, no
evidentiary hearing was needed, and Whitmore’s habeas application was correctly denied.
See Fooks, 96 F.4th at 598.
For these reasons, I respectfully dissent.

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