Rainey v. Varner

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-1714

KYLE RAINEY,

Appellant

v.

BENJAMIN VARNER, Superintendent;

THE DISTRICT ATTORNEY OF THE COUNTY OF

PHILADELPHIA; and

THE ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA,

On Appeal from the District Court

for the Eastern District of Pennsylvania

(No. 01-cv-623)

District Judge: Honorable Timothy J. Savage

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Argued January 26, 2010

Before: FUENTES and FISHER, Circuit Judges;

and KANE,* District Judge.

(Opinion Filed: April 23, 2010)

George A. Bibikos, Esq. [ARGUED]

David R. Fine

K&L Gates LLP

Market Square Plaza

17 North Second Street, 18th Floor

Harrisburg, PA 17101

Attorneys for Appellant

Anne Palmer, Esq.[ARGUED]

Thomas W. Dolgenos, Esq.

Ronald Eisenberg, Esq.

Arnold H. Gordon, Esq.

Lynne Abraham, Esq.

District Attorney’s Office

Philadelphia County

3 South Penn Square

Philadelphia, PA 19107

*

Honorable Yvette Kane, Chief United States District

Court Judge for the Middle District of Pennsylvania, sitting by

designation.

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Attorneys for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

In 1994, Kyle Rainey, Nathan Riley, and two co-

conspirators robbed a jewelry store in Philadelphia. During the

robbery, Riley shot and killed the store owner. Following a

seven-day trial, the jury found Rainey guilty of first degree

murder, two counts of robbery, and other related charges. After

the jury deadlocked on whether to impose the death penalty for

first degree murder, the sentencing court imposed a mandatory

term of life in prison. Rainey seeks habeas relief contending

that his trial and appellate counsel were ineffective for failing

to challenge his first degree murder conviction on the ground

that the evidence was insufficient to prove his shared intent to

kill.

Because the evidence at trial was sufficient to prove

second degree murder and because a conviction for second

degree murder in Pennsylvania results in a mandatory life

sentence, the same sentence that Rainey is now serving, we

discern no prejudice under Strickland v. Washington, 466 U.S.

668, 694 (1984). Accordingly, we will affirm the District

Court’s denial of habeas relief.

I.

Rainey is currently incarcerated at a state correctional

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facility in Dallas, Pennsylvania. On June 1, 1994, Rainey

robbed Sun Jewelers with three co-conspirators: Nathan Riley,

Maurice Everett, and Darrell Wallace. Rainey, Riley, and

Everett approached the store together; Rainey remained outside

while Riley and Everett entered the store through the front door,

which was held open with a string. Bystander Al-Asim Abdul-

Karim was watching from across the street; the three men

caught his attention because of their “hurried” manner and

because Riley was wearing a long-sleeved jacket and gloves on

a warm day. According to the testimony of Mahlee Kang, one

of the proprietors of the jewelry store, after Riley and Everett

entered the store, Riley shouted “don’t move” and pointed a .38

caliber semi-automatic handgun at her. A few seconds later,

Riley aimed the gun at her husband, Sun Kang, and shot him in

the neck, killing him.

At some point after Riley and Everett entered the store,

Rainey lifted the string and closed the door, causing it to lock

automatically. It is contested, however, whether Rainey closed

the door before or after Riley shot Sun Kang. Abdul-Karim

testified that “as the door was closing, I could hear somebody

say ‘don’t move,’ and an individual . . . had his hand up in the

air with what appeared to be a pistol. And following that, I

heard a discharge of a weapon.” (Id. at 12) (emphasis added).

On direct examination, Mahlee Kang testified that “my husband

was lying on the floor . . . but the man took the string out and he

was closing the door.” (Id. at 106; see also id. at 146–47.) On

cross examination, however, defense counsel showed Mahlee

Kang a statement that she made to a detective shortly after the

robbery in which she said that Rainey “lifted the string and let

the door close, but he didn’t come in the store. I don’t know

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where he went after the door shut because that was when the

boy with the gun shot my husband.” (Id. at 147.)

Riley continued pointing the gun at Mahlee Kang while

Everett grabbed jewelry and put it in a bag. They left the store

and got into a blue car that was double-parked outside. Wallace

was the driver, and Rainey was in the back seat directly behind

Wallace. Abdul-Karim testified that he heard Rainey say “let’s

go” to Riley and Everett before they jumped into the car. (Id. at

16–17.) Wallace then drove away.

In a search of the jewelry store after the robbery, police

officers recovered a pair of handcuffs and a fired cartridge case

of a Federal brand “wad-cutter” type bullet. Bullet casings of

the same type and brand were found in Rainey’s bedroom during

a subsequent search. The search of Rainey’s home also turned

up a gold metal foil price tag matching those from the jewelry

store. At trial, the Commonwealth presented testimony from an

employee of an adult bookstore who recalled that shortly before

the date of the robbery, he sold Rainey handcuffs similar to

those found in the jewelry store.

In June 1994, Riley turned himself in to the police and

gave a statement to Detective Albert Maahs. In the statement,

he confessed to killing Sun Kang during the robbery and

inculpated Wallace and Everett. Riley did not mention Rainey

in his written statement, instead asserting that Wallace stood

outside the jewelry store door and acted as the getaway driver.

Specifically, Riley’s statement recounted that Wallace and

Everett pulled up in Wallace’s car and that Wallace told Riley

to get into the car. Wallace then handed Riley a gun and

informed him that they were going to rob a jewelry store.

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Wallace parked the car, and all three walked to the jewelry store

where Wallace instructed Riley and Everett to go inside and

closed the door behind them. Once inside the store, Everett told

Riley to shoot Sun Kang, and Everett collected jewelry. When

Riley and Everett saw Wallace’s car pull up outside, they exited

the store and got into the car; Wallace then drove away. Riley’s

statement also identified Wallace as the mastermind of the

robbery.

After additional investigation, the police obtained a

search warrant for Rainey’s home and an arrest warrant for

Rainey. Rainey fled from the police on more than one occasion

before they managed to arrest him. Following his arrest, Rainey

was charged with, among other things, first degree murder.

Before trial, Rainey’s counsel filed a motion to suppress and a

motion to sever his trial from that of his co-defendants. The

Court of Common Pleas denied both motions, and Rainey was

tried with Riley and Wallace.

At trial, Detective Maahs was called to testify regarding

Riley’s statement. Maahs testified that the written statement

was taken in the presence of Riley’s child advocate, Matthew

Blum. Maahs also recounted the contents of Riley’s written

statement, which had been redacted to avoid incriminating

Riley’s codefendants.

Riley testified in his own defense. His testimony at trial

contradicted portions of his written statement as well as other

prior statements that he made to Maahs. In particular, Riley

testified that he was forced to commit the robbery by Everett.

On the witness stand, Riley explained that he owed money to

Everett, who threatened to hurt him unless he participated in the

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robbery. In his earlier conversation with Maahs, Riley stated

that he had been threatened by Wallace, not by Everett. When

asked about this inconsistency at trial, Riley responded that he

had initially placed the blame on Wallace because he had been

afraid of Everett. Riley also testified that Rainey was not

involved in the robbery and that he had not mentioned Rainey’s

name to Maahs.

To impeach Riley, Wallace’s counsel recalled Maahs.

Maahs testified that after Riley finished giving his written

statement and some time elapsed, Maahs spoke with him a

second time. Riley’s mother was present during this

conversation. According to Maahs, Riley acknowledged that a

fourth person—Rainey—had been involved in the robbery.

Maahs recalled that Riley said that he was afraid of Rainey.

During this conversation, Riley clarified that some of the actions

that he had attributed to Wallace in his statement were actually

done by Rainey, who “ran the show.” (J.A. at 61.) In particular,

Riley said that Rainey planned the robbery, recruited Riley to

participate, handed Riley the gun, gave Everett the handcuffs,

closed the door of the store behind Riley and Everett, sold the

jewelry after the robbery, and divided the proceeds. Moreover,

Riley stated that he had accompanied Rainey to purchase the

handcuffs used in the robbery and identified the store where they

made the purchase. According to Maahs’s testimony, Riley

stated that Rainey had threatened him and that he would not put

anything about Rainey in writing.

On May 22, 1995, after a seven-day trial, the jury found

Rainey guilty of first degree murder, two counts of robbery,

aggravated assault, recklessly endangering another person,

conspiracy to commit robbery and/or murder, possessing an

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instrument of crime, and carrying a firearm in public. Pursuant

to the jury charge and the verdict slip, the jury, having found

Rainey guilty of first degree murder, did not enter a verdict with

respect to second or third degree murder. At the sentencing

stage, the jury deadlocked on whether to impose the death

penalty for the first degree murder conviction. On May 24,

1995, the trial court imposed the mandatory term of life

imprisonment for the murder conviction and deferred sentencing

on the remaining convictions. Rainey’s counsel filed a motion

for a new trial based on the denial of the motion to sever, which

was denied. Thereafter, the court formally imposed a life

sentence for the first degree murder conviction and a

consecutive term of six to twelve years for the remaining

convictions.

Represented by new counsel, Rainey appealed to the

Pennsylvania Superior Court. Appellate counsel raised six

claims but did not argue that trial counsel was ineffective or that

the evidence of Rainey’s shared intent to kill was insufficient to

sustain his conviction for first degree murder.1 The Superior

1

In ruling on one of Rainey’s claims—that the trial court

erred in allowing Maahs to testify as to Riley’s statement

implicating Rainey—the Superior Court evaluated the totality of

the evidence presented at trial. It held that “[t]he uncontradicted

evidence of guilt at trial was so overwhelming and the

prejudicial effect, if any, of [Maahs’s] testimony was so

insignificant by comparison, that it is clear beyond a reasonable

doubt that the error did not contribute to the verdict.” (J.A. at

340.) The Superior Court, however, was not presented with and

did not rule on the specific argument that the evidence of

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Court rejected all of Rainey’s claims and affirmed the judgment

of sentence. The Pennsylvania Supreme Court denied allowance

of appeal.

In October 1998, Rainey filed a pro se petition under the

Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.

Cons. Stat. Ann. §§ 9541–9546. The state court appointed

counsel to represent Rainey in the PCRA proceedings. Counsel,

however, filed a letter pursuant to Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. Ct. 1988) (en banc), claiming that

Rainey’s PCRA petition raised no meritorious claims (a “Finley

letter”). Counsel was permitted to withdraw, and Rainey

proceeded pro se. Rainey argued that his trial and appellate

counsel were ineffective for failing to challenge his first degree

murder conviction on the ground that the evidence was

insufficient to prove his shared intent to kill (the “layered

ineffectiveness claim”).2 The PCRA court concluded that

Rainey’s claims lacked merit and dismissed his petition. Rainey

appealed pro se to the Superior Court, which affirmed the denial

of relief. The Superior Court held that Rainey’s layered

ineffectiveness claim lacked merit and that his other claims had

been waived.

Rainey’s shared intent to kill was insufficient.

2

In presenting this argument, Rainey used the term

“weight of the evidence” rather than “sufficiency of the

evidence.” As we discuss more thoroughly below, given that

Rainey’s pro se petition must be construed liberally, Rainey

merely mislabeled his claim and fairly presented the sufficiency

issue to the state courts.

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Rainey timely filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of

Pennsylvania. Rainey advanced six claims for relief, including

the layered ineffectiveness claim. The case was referred to a

Magistrate Judge, who issued a Report and Recommendation

concluding that Rainey was entitled to habeas relief based on his

layered ineffectiveness claim. Specifically, the Magistrate

Judge concluded that (1) the evidence at trial was insufficient to

establish a shared intent to kill, (2) Rainey’s trial and appellate

counsel rendered deficient performance in failing to raise the

sufficiency claim, and (3) this deficient performance prejudiced

Rainey. With respect to prejudice, the Magistrate Judge

reasoned as follows:

In light of the lack of evidence of specific intent

in the instant case, [I] believe that there is a

reasonable possibility that the trial court would

have granted a new trial if counsel had argued that

the verdict of first degree murder was against the

weight of the evidence. As a result, [I] find that

Rainey[] was prejudiced by trial counsel’s

deficient performance. . . . Moreover, [I] believe

that if direct appellate counsel had raised and

fully briefed the [sufficiency of the evidence

issue], then there is a reasonable possibility that

the result of Rainey’s appeal would have been

different.

(J.A. at 31–33.) The Magistrate Judge recommended that

Rainey’s other claims be dismissed as procedurally defaulted.

The District Court appointed counsel to represent Rainey

and held oral argument. By Memorandum and Order dated

February 21, 2008, the District Court approved and adopted the

Report and Recommendation in part, rejected it in part, denied

the petition, and declined to issue a certificate of appealability.

Specifically, the District Court held that Rainey had properly

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exhausted his layered ineffectiveness claim, that there was

insufficient evidence of Rainey’s shared intent to kill, and that

his counsel rendered deficient performance in failing to

challenge the sufficiency of the evidence at trial or on direct

appeal. With respect to prejudice, however, the District Court

concluded that:

[Rainey] suffered no prejudice. . . . Although the

evidence may not have been sufficient to sustain

a first degree murder verdict, it was sufficient for

a second degree felony murder conviction. . . . He

was sentenced to life on the first degree murder

conviction, the same sentence he would have

received had he been convicted of second degree

murder.

(J.A. at 52–53.) Accordingly, the District Court held that

Rainey was not entitled to habeas relief on the ground of

ineffective assistance of counsel. The District Court adopted the

recommendation that Rainey’s other claims be dismissed as

procedurally defaulted and denied the habeas petition.

Rainey timely filed a Notice of Appeal. On April 17,

2008, he filed a pro se motion for a certificate of appealability.

We granted the certificate only as to the “layered ineffectiveness

of counsel claim.” (Id. at 55.) We permitted Rainey’s counsel

to withdraw and appointed present pro bono counsel.

II.

The District Court exercised jurisdiction over Rainey’s

petition for a writ of habeas corpus under 28 U.S.C. §§ 2241 and

2254. We have jurisdiction to review the District Court’s denial

of the writ pursuant to 28 U.S.C. §§ 1291 and 2253.

When reviewing a district court decision regarding a

petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254, “[w]e apply the same standards as the District Court, as

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mandated by the Antiterrorism and Effective Death Penalty Act

of 1996 (‘AEDPA’).” Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir.

2005). Section 2254(d) provides that:

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.

Moreover, “[a] federal habeas court must presume that a state

court’s findings of fact are correct. The petitioner bears the

burden of rebutting the presumption of correctness by clear and

convincing evidence.” Jacobs, 395 F.3d at 99 (citing 28 U.S.C.

§ 2254(e)(1)).

Under § 2254(d)(1), a state court decision is contrary to

Supreme Court precedent if the state court reached a

“‘conclusion opposite to that reached by [the Supreme] Court on

a question of law or if the state court decides a case differently

than [the Supreme] Court has on a set of materially

indistinguishable facts.’” Marshall v. Hendricks, 307 F.3d 36,

51 (3d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362,

413 (2000)). A state court decision is an unreasonable

application of Supreme Court precedent if the court: (1)

“identifies the correct governing legal rule from the Supreme

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Court’s cases but unreasonably applies it to the facts of the

particular case”; (2) “unreasonably extends a legal principle

from the Supreme Court’s precedent to a new context where it

should not apply”; or (3) “unreasonably refuses to extend that

principle to a new context where it should apply.” Gattis v.

Snyder, 278 F.3d 222, 228 (3d Cir. 2002) (citing Williams, 529

U.S. at 407). “The unreasonable application test is an objective

one—a federal court may not grant habeas relief merely because

it concludes that the state court applied federal law erroneously

or incorrectly.” Jacobs, 395 F.3d at 100 (citations omitted).

Ineffective assistance of counsel claims are “governed by

the familiar two-prong test set forth in Strickland v. Washington,

466 U.S. 668 (1984).” Shelton v. Carroll, 464 F.3d 423, 438 (3d

Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)).

For AEDPA purposes, the Strickland test qualifies as “clearly

established Federal law, as determined by the Supreme Court.”

Williams, 529 U.S. at 391. Under Strickland, a habeas petitioner

must demonstrate that: (1) counsel’s representation fell below

an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel’s error, the result

would have been different. 466 U.S. at 687. For the deficient

performance prong, “[t]he proper measure of attorney

performance remains simply reasonableness under prevailing

professional norms.” Id. at 688. This review is deferential:

A fair assessment of attorney performance

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s

perspective at the time. Because of the

difficulties inherent in making the evaluation, a

court must indulge a strong presumption that

counsel’s conduct falls within the wide range of

reasonable professional assistance . . . .

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Id. at 689.

Not every “error by counsel, even if professionally

unreasonable, . . . warrant[s] setting aside the judgment of a

criminal proceeding.” Id. at 691. “Even if a defendant shows

that particular errors of counsel were unreasonable, . . . the

defendant must show that they actually had an adverse effect on

the defense”; in other words, the habeas petitioner must show

that he was prejudiced by counsel’s deficient performance. Id.

at 693. To establish prejudice, “[t]he 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.” Id. at 694.

In assessing an ineffective assistance of counsel claim,

“the ultimate focus of inquiry must be on the fundamental

fairness of the proceeding . . . . In every case the court should be

concerned with whether . . . the result of the particular

proceeding is unreliable because of a breakdown in the

adversarial process that our system counts on to produce just

results.” Id. at 696.

III.

A. Exhaustion of the Layered Ineffectiveness Claim

We first address the Commonwealth’s argument that

Rainey failed to exhaust his layered ineffectiveness claim, in

which Rainey contends that his trial and appellate counsel were

ineffective for failing to challenge the sufficiency of the

evidence establishing a shared intent to kill. The

Commonwealth assserts that before the state courts, Rainey

contended that his counsel should have challenged the weight of

the evidence but did not make a sufficiency argument.

Following a review of Rainey’s filings and the decisions of the

PCRA courts, the District Court held that “the Pennsylvania

court was presented with and did consider Rainey’s

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ineffectiveness claim as implicating the sufficiency of the

evidence.” (J.A. at 46.)

Pursuant to 28 U.S.C. § 2254(b)(1)(A), the federal courts

may grant a state prisoner’s habeas petition only if the petitioner

“has exhausted the remedies available in the courts of the State.”

AEDPA’s exhaustion requirement mandates that the claim

“must have been ‘fairly presented’ to the state courts.”

Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting

Picard v. Connor, 404 U.S. 270, 275 (1971)). Fair presentation

“means that a petitioner must present a federal claim’s factual

and legal substance to the state courts in a manner that puts them

on notice that a federal claim is being asserted.” Id. at 725

(internal quotation marks & citations omitted). In other words,

the petitioner must afford the state system “the opportunity to

resolve the federal constitutional issues before he goes to the

federal court for habeas relief.” Zicarelli v. Gray, 543 F.2d 466,

472 (3d Cir. 1976) (en banc) (internal quotation marks &

citations omitted). Fair presentation by the petitioner to the state

courts is sufficient; the claims “need not have been considered

or discussed by those courts.” Swanger v. Zimmerman, 750 F.2d

291, 295 (3d Cir. 1984) (citations omitted).

To assess whether a pro se petitioner fairly presented

claims to the state courts, we will construe the pleadings

liberally. Cf. United States v. Otero, 502 F.3d 331, 334 (3d Cir.

2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). A

habeas corpus petition prepared by a prisoner without legal

assistance may not be skillfully drawn and should thus be read

generously. “It is the policy of the courts to give a liberal

construction to pro se habeas petitions.” United States ex rel.

Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)

(citation omitted).

The Commonwealth correctly asserts that a challenge to

the sufficiency of the evidence differs significantly from a

challenge to the weight of the evidence. Under Pennsylvania

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law, the “distinction between a determination of the weight of

the evidence, which allows the trial court to make an

independent assessment of the credibility of the prosecution’s

case, and a sufficiency determination, which confines the

reviewing tribunal to accepting the evidence produced by the

prosecution in the most favorable light, is well established.”

Commonwealth v. Vogel, 461 A.2d 604, 609 (Pa. 1983) (internal

citations omitted).

In Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000), the Supreme Court of Pennsylvania clarified the

differences between the two claims in some detail. The court

described a sufficiency claim in the following terms:

A claim challenging the sufficiency of the

evidence is a question of law. Evidence will be

deemed sufficient to support the verdict when it

establishes each material element of the crime

charged and the commission thereof by the

accused, beyond a reasonable doubt. Where the

evidence offered to support the verdict is in

contradiction to the physical facts, in

contravention to human experience and the laws

of nature, then the evidence is insufficient as a

matter of law. When reviewing a sufficiency

claim the court is required to view the evidence in

the light most favorable to the verdict winner

giving the prosecution the benefit of all

reasonable inferences to be drawn from the

evidence.

Id. (internal citations omitted). A weight claim, as the court

explained, differs from a sufficiency claim:

A motion for new trial on the grounds that the

verdict is contrary to the weight of the evidence,

concedes that there is sufficient evidence to

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sustain the verdict. Thus, the trial court is under

no obligation to view the evidence in the light

most favorable to the verdict winner. An

allegation that the verdict is against the weight of

the evidence is addressed to the discretion of the

trial court. . . . [T]he role of the trial judge is to

determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that

to ignore them or to give them equal weight with

all the facts is to deny justice.

Id. at 751–52 (internal quotation marks, footnote, and citations

omitted).

Given the significant differences between sufficiency and

weight claims, in order for Rainey to have exhausted his

sufficiency claim, he must have fairly presented that claim to the

Pennsylvania courts. Presentation of a weight claim would not

exhaust a sufficiency claim. Nevertheless, as Rainey was pro se,

his filings are to be read liberally. In his initial pro se Motion

for Post Conviction Collateral Relief, Rainey alleged that the

“[w]eight of the [e]vidence was [c]ontrary to the [v]erdict.”

(Commonwealth Supplemental Appendix (“Commw. S.A.”) at

148.) Yet, he explained further that “[t]he evidence failed to

establish that a shared specific intent to kill existed,” a statement

that sounds in sufficiency of the evidence rather than weight.

(Id.) In his Finley letter, counsel appointed to represent Rainey

characterized Rainey’s argument as a weight claim. In stating

the standard of review, however, counsel wrote as follows:

In determining whether a verdict is against the

weight of the evidence the court must view the

evidence and all reasonable inferences from it in

the light most favorable to the Commonwealth, as

the verdict winner, and determine whether

sufficient evidence was presented to prove each

element of the crimes the defendant was

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convicted of beyond a reasonable doubt.

(Id. at 154) (emphasis added) (citations omitted). This standard

is the correct standard for a sufficiency claim, not for a weight

claim.

The PCRA court titled the section of its opinion

addressing this claim “Weight of the Evidence.” (Id. at 160.)

In analyzing the claim, the court noted that “[o]n direct appeal,

the defendant did not raise the issue of the sufficiency or weight

of the evidence.” (Id.) It determined, however, that the

Superior Court analyzed the evidence of guilt and concluded

that it was overwhelming. (Id.) As a result, the PCRA court

was “thereby satisfied that the Superior Court had in fact viewed

the evidence and found it to be sufficient to support the verdict.”

(Id. at 161) (emphasis added). While this analysis is cursory, it

considers Rainey’s claim as one challenging the sufficiency of

the evidence.

In his pro se brief appealing the decision of the PCRA

court, Rainey cited the standard of review for weight claims.

The discussion that followed, however, while using the term

“weight,” actually contended that the evidence was not

sufficient to demonstrate that Rainey had a shared intent to kill.

Rainey argued that “the verdict was against the weight of the

evidence in that it was not shown [he] had a shared intent to kill

with the actual shooter.” (J.A. at 356.) He likewise contended

that “[a]n overview of the record instantly reveals that the

Commonwealth failed to establish beyond a reasonable doubt

that a shared specific intent to kill existed.” (Id. at 361.)

Whether the Commonwealth has shown or established the

existence of an element of a crime is an inquiry into the

sufficiency of the evidence, not its weight. Furthermore, Rainey

cited Commonwealth v. Bachert, 453 A.2d 931, 933 (Pa. 1982),

a case that lays out the test for sufficiency of the evidence.

Later in the argument, however, Rainey delineated the standard

of review for weight claims. (J.A. at 361) (“[T]he evidence

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need not be viewed in a light most favorable to the verdict

winner, and [the court] may evaluate the credibility of witnesses

by itself.”).

For a claim to be exhausted, the critical requirement is

fair presentation by the petitioner; the claim “need not have been

considered or discussed by [the state] courts.” Swanger, 750

F.2d at 295 (citations omitted). Accordingly, we base our

conclusion regarding exhaustion on what Rainey presented in

his filings, not on the way in which those filings were

interpreted by the state courts. Given that pro se petitions are to

be construed liberally, Rainey’s filings, while internally

inconsistent, can fairly be read as asserting a claim that his trial

and appellate counsel were ineffective for failing to challenge

the sufficiency of the evidence.3 In sum, we affirm the District

Court’s conclusion that Rainey’s PCRA filings fairly presented

the claim that his trial and appellate counsel were ineffective for

failing to litigate sufficiency of the evidence. Rainey thus

exhausted this claim before the state courts, and it is

appropriately before us on federal habeas review.

B. Ineffective Assistance of Counsel

Having concluded that Rainey exhausted his layered

ineffectiveness claim, we next address whether the state courts’

denial of this claim “was contrary to, or involved an

unreasonable application of, clearly established Federal law,” 28

U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented in

3

The Commonwealth responds that Rainey must have

been making a weight argument as he faulted both trial and

appellate counsel and only weight claims must be raised at trial

whereas sufficiency claims can be raised for the first time on

appeal. This argument is unpersuasive as it presumes that a pro

se litigant has an understanding of the intricacies of

Pennsylvania criminal procedure.

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the State court proceeding,” id. § 2254(d)(2). As previously

stated, a claim of ineffective assistance of counsel is assessed

under the familiar two-prong Strickland test. With respect to the

sequence of the two prongs, the Strickland Court held that “a

court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. . . . If it is easier

to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697. We believe this

to be the case here.

Accordingly, we turn first to the issue of whether Rainey

was prejudiced by his trial and appellate counsel’s failure to

challenge the sufficiency of the evidence of his shared intent to

kill. The District Court concluded that “where the defendant

was not the killer and where the evidence of shared intent is

lacking, counsel’s failure to challenge a first degree murder

conviction in a felony murder context is deficient.” (J.A. at

51–52.) Nevertheless, the District Court held that Rainey failed

to make out a claim for ineffective assistance of counsel under

Strickland as “the petitioner suffered no prejudice.” (Id. at 52.)

The District Court explained its reasoning as follows:

There was sufficient evidence to sustain a second

degree murder sentence which carries the same

sentence—life imprisonment. Had counsel

clearly raised a sufficiency of the evidence

objection, it is unlikely that the PCRA court and

the Superior Court would have vacated the

petitioner’s first degree murder conviction and

granted a new trial because the result was not

fundamentally unfair. Thus, the prejudice prong

is not met, and the state court’s decision was not

unreasonable.

(Id.) Accordingly, the District Court held that Rainey “was

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sentenced to life on the first degree murder conviction, the same

sentence he would have received had he been convicted of

second degree murder. Thus, he suffered no prejudice as a

consequence of any failure of counsel to raise the sufficiency

issue . . . .” (Id. at 52–53) (citation omitted).

In Clark v. Maggio, 737 F.2d 471, 475 (5th Cir. 1984),

the Fifth Circuit analyzed a fact pattern similar to that presented

in the instant case. Under Louisiana law, if a murder occurs in

the course of a robbery, it qualifies as first degree murder if the

offender has a specific intent to kill or to inflict great bodily

harm. Id. at 474–75. If such intent is lacking, the offense is

instead second degree felony murder. Id. at 475. Reviewing the

record, the court found no evidence that Clark possessed the

intent required for first degree murder; thus, his conviction for

that offense was unconstitutional. Id. Nevertheless, the court

declined to grant Clark’s habeas petition because there was no

prejudice:

Had the state court properly performed its

function, it would have directed a verdict for

Clark on the first degree murder charge and

submitted to the jury only the second degree

lesser-included offense [of felony murder]. There

was no evidence that Clark actually shot Sawyer,

but there was strong evidence that Clark

participated in the robbery attempt and provided

the means of escaping from the scene. This was

sufficient for the jury to have found him to be a

principal in the attempted robbery and thus guilty

of second degree murder for any killing that

resulted from the attempt. The sentence for that

offense would have been the same as the one

imposed on him. Because Clark has failed to

show that he suffered any prejudice, we find no

basis for granting a writ on the basis of

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insufficiency of the evidence.

Id. at 475–76 (footnotes omitted). In other words, the Clark

court held that no prejudice occurs if a petitioner was

wrongfully convicted of an offense for which there was

insufficient evidence but is serving the same sentence that he

would have been serving had he been properly convicted of the

offense for which there was sufficient evidence. Id. at 476;

accord Brown v. Collins, 937 F.2d 175, 182–83 (5th Cir. 1991)

(“Brown’s sentence for his conviction of aggravated battery . . .

would have been the same [as the sentence he is currently

serving], and therefore, he cannot demonstrate any constitutional

prejudice . . . .”).

The Clark case is directly applicable to the instant

appeal.4 Rainey was convicted of first degree murder, for which

he is serving a life sentence. The jury also convicted Rainey of

robbery. Assuming that the evidence presented at trial was

insufficient to establish a shared intent to kill, it was nonetheless

sufficient to establish the elements of second degree felony

murder. Rainey was convicted of robbery, and the evidence

clearly established that a death occurred during that robbery,

which is sufficient to prove second degree murder under

Pennsylvania law. See 18 Pa. Cons. Stat. Ann. § 2502(b) (“A

criminal homicide constitutes murder of the second degree when

it is committed while defendant was engaged as a principal or an

accomplice in the perpetration of a felony.”). Under

4

In Clark, which interpreted Louisiana law, the offense

for which there was sufficient evidence—second degree felony

murder—was a lesser included offense of the offense of

conviction. Under Pennsylvania law, which governs the instant

case, second degree felony murder is not a lesser included

offense of first degree murder. This difference, however, is

immaterial as the holding in Clark did not depend on the

relationship between the two offenses but instead on a

comparison between sentences.

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Pennsylvania law, “[a] person who has been convicted of

murder of the second degree shall be sentenced to a term of life

imprisonment.” 18 Pa. Cons. Stat. Ann. § 1102(b) (1995);

accord Castle v. Pennsylvania Bd. of Probation & Parole, 554

A.2d 625, 627 (Pa. Commw. Ct. 1989) (holding that a

conviction for second degree murder carries a mandatory life

sentence under Pennsylvania law). Accordingly, had Rainey

been retried and convicted of second degree murder, he would

have received the same sentence.

According to Rainey, he was prejudiced because his trial

and appellate counsel failed to challenge the sufficiency of the

evidence establishing his shared intent to kill. Had trial or

appellate counsel made such an argument and prevailed, Rainey

would have been granted a new trial. At this new trial, double

jeopardy would have prohibited Rainey from being tried for first

degree murder but not for second or third degree murder. See

Burks v. United States, 437 U.S. 1, 18 (1978); Ball v. United

States, 163 U.S. 662, 669 (1896). Rainey has not identified any

new argument or new evidence that he could have presented at

a second trial such that he would not have been convicted of

second degree murder.5 Thus, we have no reason to speculate

5

In arguing that he was prejudiced, Rainey relies heavily

on Everett v. Beard, 290 F.3d 500 (3d Cir. 2000), abrogated on

other grounds as recognized in Priester v. Vaughn, 382 F.3d

394 (3rd Cir. 2004). In Everett, as in the instant case, petitioner

was convicted as an accomplice in a robbery, during which the

other participants killed the proprietor of the store. Id. at 503.

Everett was charged with and convicted of first degree murder

and sentenced to life in prison. Id. At trial, “the state trial

judge, in charging the jury, said over and over again that Everett

could be found guilty of intentional [first degree] murder if his

accomplice intended to cause the death of the victim.” Id.

Counsel failed to object to the jury charge, and Everett filed a

habeas petition claiming ineffective assistance of trial counsel.

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otherwise.

This analysis demonstrates that even had Rainey’s

counsel challenged the sufficiency of the evidence, Rainey

would have received the same sentence that he is currently

The District Court denied Everett’s petition. Everett appealed,

and we reversed, concluding that counsel was ineffective for

failing to object to the jury instructions. With respect to

prejudice, we held that “but for the failure of counsel to object

to the jury instructions, there is more than a reasonable

probability that Everett would not have been convicted of first-

degree murder because there was no evidence that he possessed

the requisite specific intent to kill.” Id. at 515–16.

Rainey contends that Everett controls the outcome of the

instant appeal; we disagree. In Everett, in holding that the

petitioner was prejudiced by his first-degree murder conviction,

we did not address his sentence. Subsequent to our decision in

Everett, the Supreme Court has reemphasized in a number of

cases that prejudice under Strickland requires a showing of a

reasonable probability of a different result, that is, a different

sentence. See, e.g., Porter v. McCollum, — U.S.—, 130 S. Ct.

447, 453 (2009) (“Porter must show that but for his counsel’s

deficiency, there is a reasonable probability he would have

received a different sentence.”); Wong v. Belmontes, — U.S. —,

130 S. Ct. 383, 386 (2009) (“[T]o establish prejudice,

Belmontes must show a reasonable probability that the jury

would have rejected a capital sentence . . . .”); Wiggins v. Smith,

539 U.S. 510, 536 (2003) (“We further find that had the jury

been confronted with this considerable mitigating evidence,

there is a reasonable probability that it would have returned

with a different sentence.”). In light of these Supreme Court

cases, we are squarely addressing the issue of whether Rainey

would have received the same sentence even if his counsel had

challenged the sufficiency of the evidence. Thus, the instant

case is clearly distinguishable from Everett.

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serving—life imprisonment. To establish prejudice, Rainey

“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.”

Strickland, 466 U.S. at 694. Here, the result of the

proceeding—a life sentence—would have been the same had

counsel challenged the sufficiency of the evidence.

Accordingly, Rainey cannot show that he was prejudiced and

cannot prevail on his claim of ineffective assistance of counsel.

The District Court correctly concluded that Rainey did not suffer

prejudice from counsel’s failure to challenge the sufficiency of

the evidence, and we affirm.

With respect to Rainey’s remaining claims, the District

Court concluded that they were procedurally defaulted. Because

Rainey’s layered ineffectiveness claim, the sole claim before us,

fails on the prejudice prong, Rainey is not entitled to habeas

relief.6

IV.

For the foregoing reasons, we will affirm the District

Court’s denial of Rainey’s habeas petition.

6

Because we decline to grant Rainey’s habeas petition,

we need not address his contention that, were we to grant the

writ, double jeopardy would bar his retrial for first, second, and

third degree murder, making immediate release the only

appropriate remedy.

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