Rainey v. Varner

• Decision Date: 23 April 2010
• Docket Number: No. 08-1714.,08-1714.
• Citation: 603 F.3d 189
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Kyle RAINEY, Appellant v. Benjamin VARNER, Superintendent; The District Attorney of the County of Philadelphia; and The Attorney General of the State of Pennsylvania.

603 F.3d 189

Kyle RAINEY, Appellant v. Benjamin VARNER, Superintendent; The District Attorney of the County of Philadelphia; and The Attorney General of the State of Pennsylvania.

No. 08-1714.

United States Court of Appeals, Third Circuit.

Argued January 26, 2010.

Opinion Filed April 23, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George A. Bibikos, Esq. Argued, David R. Fine, K & L Gates LLP, Harrisburg, PA, 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, Philadelphia, PA, Attorneys for Appellees.

Before: FUENTES and FISHER, Circuit Judges; and KANE,^* District Judge.

OPINION OF THE COURT

FUENTES, Circuit Judge:

In 1994, Kyle Rainey, Nathan Riley, and two coconspirators 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, we will affirm the District Court's denial of habeas relief.

I.

Rainey is currently incarcerated at a state correctional 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 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. 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 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 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...