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

-1-
 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.

-2-
 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

-3-
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

-4-
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.

-5-
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

-6-
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

-7-
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

-8-
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.

-9-
 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

-10-
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

-11-
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

-12-
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 . . . .

-13-
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

-14-
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

-15-
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

-16-
 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

-17-
 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

-18-
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.

-19-
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

-20-
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

-21-
 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.

-22-
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.

-23-
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.

-24-
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.

-25-