NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT



                                     No. 14-1541


                                MICHAEL RAINEY,

                                                Appellant

                                          v.

       SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
     SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT
       GRATERFORD; THE DISTRICT ATTORNEY OF THE COUNTY OF
       PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
                          PENNSYLVANIA


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                        (District Court No.: 2-10-cv-00891)
                     District Judge: Honorable Paul S. Diamond


                               Argued on July 12, 2016

                         (Opinion filed: September 27, 2016)

              Before: SMITH, JORDAN, and RENDELL, Circuit Judges

Ayanna Williams, Esquire (Argued)
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106

             Counsel for Appellant
Ryan Dunlavey, Esquire (Argued)
Susan E. Affronti, Esquire
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

              Counsel for Appellees



                                       O P I N I O N*


RENDELL, Circuit Judge:

       In 1991, Michael Rainey was convicted of first-degree murder in the Philadelphia

Court of Common Pleas after a joint trial with his co-defendant George Williams. Rainey

contends that his Sixth Amendment right to confront the witnesses against him was

violated during his trial when the prosecution introduced an out-of-court statement given

by Williams, who did not testify at trial. The statement was redacted to replace Rainey’s

name with an “X.” Rainey seeks habeas relief, claiming that this redaction was

inadequate and that the use of the statement violated the Sixth Amendment, as established

by Bruton v. United States, 

(1968) and Richardson v. Marsh, 

(1987). We agree but, nevertheless, conclude that Rainey is not entitled to relief, as the

error did not have a substantial and injurious effect on the verdict. Rainey also contends

that his trial counsel was constitutionally deficient for failing to move for a severance of




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                              2
his trial from Williams’s. We find that any such error on counsel’s part did not prejudice

Rainey. We will therefore affirm the District Court’s denial of Rainey’s habeas petition.

                                      I. Background

       Rainey and Williams were each charged with first-degree murder for their roles in

the death of 72-year-old Carroll Fleming. Fleming’s son found him lying face-down on

the porch to the house they shared. Carroll Fleming was taken to the hospital where he

was pronounced dead. A medical examination of Fleming’s body revealed that the cause

of his death was a shotgun wound to his back.

       Rainey, Williams, and a third individual, Alvin Morgan, were arrested and

charged with murder. Morgan accepted a plea deal before trial, agreeing to plead guilty to

third-degree murder in exchange for his testimony against Rainey and Williams. Rainey

and Williams were tried together.

                                          a. Trial

       At the joint trial, two key eyewitnesses testified as to Rainey’s role in the murder:

Morgan and Kevin Lewis, a neighborhood acquaintance of Rainey, Morgan, and

Williams. Lewis testified first. He testified that on December 7, 1989, he was walking

home from his cousin’s house when he came upon Rainey, Morgan, and Williams, who

were walking down Sprague Street. He saw that the three were talking among themselves

and heard that the conversation involved “something about money.” A264. Lewis began

talking with Williams. Williams told Lewis that “he was going down the street with

[Rainey],” A264, and that he “[j]ust wanted his money.” A265. Lewis then handed



                                             3
Williams a broken .25 gun so that he could use it to scare the person from whom

Williams wanted money.

       Lewis testified that Williams took the broken gun and continued walking down the

street with Rainey and Morgan. Lewis watched the three arrive at “the house,” where

Morgan stood a bit back on the sidewalk and Rainey and Williams stood on the porch.

A272. Lewis saw Rainey approach the door to the house, and Lewis then heard Rainey

“ask[] for his money.” A272-73. He saw Rainey kick the door to the house. Lewis then

saw “sparks” come from Rainey’s long black leather trench coat and heard a sound like a

gunshot. A273, 283. After the shot, Lewis turned away and “started walking up the street

fast” away from the commotion. A273.

       Lewis also testified that when he later saw Rainey in custody, Rainey confronted

him about his cooperation with the investigation. Specifically, Lewis testified that Rainey

“said why did I dime on him. Dime means tell on him.” A313.

       On cross examination, Lewis was asked about an earlier statement in which he

said he saw Williams, not Rainey, knocking on the door. Lewis explained “I was scared,

you know, and I—my story wasn’t straight. I am going to come out and tell the truth and

I am going to tell what happened. I don’t want no problem. That’s what I’m trying to

say.” A324. Lewis also affirmed that the government had suggested to him that if he did

not “say the right thing”—in the words of Rainey’s counsel—he “could be held to be part

of some type of conspiracy because [he] let somebody hold [his] gun and the gun went

and got involved in some kind of a incident.” A319.



                                             4
       The prosecution next called Morgan. Morgan, who was 14 at the time of the

shooting, was 16 when he testified. He had not yet been sentenced in connection with his

guilty plea to third-degree murder, but he knew that his minimum possible sentence

would be 5-10 years and his maximum possible sentence would be 25-50 years. He

testified that he had known Rainey (who was four years older) for years and, prior to the

shooting, would spend time with him every day. He had also known Williams for years

but would see him less frequently than he would see Rainey.

       Morgan testified that on the evening of December 7, 1989, he was with Rainey at

Rainey’s house. Rainey told Morgan that earlier he had been out buying alcohol and saw

a man pull out “a lot of money.” A337. After this conversation, Rainey brought out a

sawed-off shotgun and began “playing with it. He had it in his hand, pulling the trigger.”

A339. Later that night, Williams arrived at the front porch of Rainey’s house. Rainey and

Williams began talking, and Morgan heard Rainey say “if he had to shoot somebody he

was going to shoot them.” A341. Rainey then went back in the house and came back

outside, this time walking with one leg remaining stiff and his hand holding that leg.

Morgan observed that Rainey was wearing a long black trench coat. Rainey and Williams

began to walk down the street and Morgan followed.

       Morgan testified that he then saw Lewis walking the opposite way along the street.

Williams and Rainey talked briefly with Lewis, and Lewis gave “something shiny” to

Williams. A345. Williams, Rainey, and Morgan then continued down the street; Lewis

continued in the opposite direction.



                                             5
       Rainey and Williams then crossed the street away from Morgan. Morgan saw

Rainey take the shotgun out of his pants and put something “yellow, like a shell,” into the

shotgun. A347.

       Morgan testified that Williams then walked up on the porch of the house and

knocked on the door. When nobody answered, Williams kicked the door and the door

came open. A man came running out of the house, and Williams pulled the gun on him.

Williams pulled the trigger, and the gun clicked but did not fire. Then Rainey, standing

“[j]ust off the porch,” shot the man in the back. A350. Rainey was about three feet away

and shot the gun only once. The man fell on the porch. Williams told Rainey to “check

his pockets.” A353. Morgan heard police sirens shortly after the shot, however, and

began to run, as did Rainey and Williams before they had checked the man’s pockets.

Morgan saw Rainey throw the gun onto the roof of a school.

       Morgan testified that he saw Rainey the next day on Rainey’s porch. Rainey “said

the man was dead.” A357. Then a week later Morgan saw the shotgun again at Rainey’s

house. Rainey “said he was going to break it up and throw it in a pond. . . . Because it had

a murder on; because he killed somebody with it.” A357.

       Morgan also testified that Rainey had made several attempts to dissuade him from

cooperating with the investigation and prosecution. Morgan had received letters from

Rainey that encouraged Morgan to “do [his] part” meaning, according to Morgan, that

Rainey “wanted [him] to blame it on [Williams].” A394. Morgan also said that one letter

from Rainey had a number for a person named “Capon,”—Capon and Rainey were “like

best friends,” A396—and when Morgan called Capon, Capon told him to “blame it all on

                                             6
[Williams].” A395. On the day Morgan testified, when he saw Rainey and Williams in

their cells outside the courtroom, they told him to “[p]lead the Fifth.” A359. Morgan also

testified that Rainey had also told two other potential witnesses (Jonathon and Philip,

who had been at Rainey’s house with him and Morgan the day of the shooting) that “if

anybody asks any questions, tell them that George [Williams] shot the man.” A372.

       The prosecution’s next witness after Morgan was Detective Joseph Walsh of the

Philadelphia Police Department. Detective Walsh testified about the arrest of Williams

and how Williams was taken to into an interview room and read his Miranda rights.

Williams then agreed to make a statement. As Detective Walsh was preparing to read the

transcript of the interview with Williams to the jury, Rainey’s counsel objected and the

lawyers and the judge met at sidebar. At sidebar, the lawyers and the judge agreed that

Rainey’s name should be redacted from the transcript and replaced with “X.”

       Detective Walsh then read the transcript of Williams’s interview to the jury.

Williams said in the transcript that he and “X” and others were standing in front of “X’s”

house when “X” said, “Let’s go stick somebody up.” A411. “X” went into his house and

came out wearing a long black trench coat and with a rifle down his pant leg, which

caused him to walk with a limp.

       The statement then read:

       Then we got to a house and “X” told me to knock on the door, but I said
       “no.” Then “Eyeball” [Morgan] started to knock on the door, and that was
       when “X” pulled out the gun. Then the old man said, “who is it?” and “X”
       hollered out, “open the door.” Then the old man said, “We ain’t got
       nothing.” And “Eyeball” started to knock on the door again and told the old
       man, and the old man came rushing out, and when he came rushing out,
       “Eyeball” stepped out in the street and the old man came straight to me, and

                                             7
        I ducked. “X” was behind the old man, and “X” just shot him in the back.
        The old man fell face forward towards me. And I was so scared I just ran.

A412.

        Detective Walsh continued reading the transcript, which detailed the aftermath of

the shooting. Williams was asked about his subsequent contact with “X,” and Williams

described having a conversation with “X” at his house three days later. Detective Walsh,

reading the transcript of the interview of Williams, read:

        Question: “Was there anyone with you when you had this conversation
        with X?”
        Answer: My brother-in-law, his name is Mike Williams, Black male, 23.
        He lives in West Philly around that movie, the Capitol.”
        ...
        “I can get his phone number from my grandmother.”
        Question: “Did you see Mike any other time since the murder?”

A416.

        At this point, Rainey’s lawyer objected. The prosecutor said, “Detective, review

that. You may have read a typ[o].” A416. Detective Walsh corrected himself, saying,

“Excuse me. ‘Did you see “X” any other time since the murder?’” A416. Detective

Walsh then continued reading the statement.

        After Detective Walsh’s direct examination ended, Rainey’s counsel at sidebar

again raised his objection about the Detective saying “Mike” instead of “X.” Rainey’s

counsel requested a mistrial. Rainey’s counsel contended that the Detective’s having

corrected his mistake and replaced “Mike” with “X” made clear that “X” was referring to

Michael Rainey. The prosecutor contended that a mistrial was unnecessary and that a




                                             8
curative instruction could mitigate any prejudice from Detective Walsh’s mistake in

reading “Mike” rather than “X.”

       The trial judge announced that he intended to issue a curative instruction that the

jury was to disregard Detective Walsh’s reading of the “typewritten mistake.” A424.

Rainey’s counsel objected to this instruction, contending that such an instruction would

call more attention to the mistake and further prejudice his client. The judge, positing that

the jury believed the mistake to have been a typo, therefore did not issue a curative

instruction and denied the mistrial.

       The prosecution also presented several witnesses to describe the investigation of

the crime scene and body. Officer Ross Barnes testified that the plexiglass on the door to

Fleming’s house had been displaced. The medical examiner testified that he found a fatal

shotgun wound on the left side of Fleming’s back. There were also barrel imprints on

Fleming’s back, indicating that the “shotgun was pressed right up against [Fleming’s]

back when it was fired.” A446. There were no signs of a struggle. The examiner found a

slug and cup in Fleming’s heart. A firearms expert testified that the slug and cup, as well

as a yellow plastic shell and four lead fragments that were recovered from the scene, were

fired from a 20-guage shotgun.

       Rainey presented three character witnesses in his defense. His sister testified that

he had a reputation for being a truthful, law-abiding citizen. Rainey also presented two

neighbors who had each known him for 10-11 years. They each testified that he had a

reputation for being a truthful, law-abiding citizen.



                                              9
        During closing arguments, Rainey’s lawyer argued that the evidence did not

support a first-degree murder conviction, because neither of the two eyewitnesses offered

any testimony about premeditation. He argued that the eyewitnesses only described a

murder during the course of a robbery, which would only be second-degree murder. He

also argued that the witnesses were unreliable and inconsistent. Rainey’s counsel noted

the deals that Morgan and Lewis had received in exchange for their testimony, arguing

that such deals made them less reliable as witnesses. He pointed out that Lewis and

Morgan gave inconsistent testimony as to whether Rainey was on the porch or at the

bottom of the steps to the porch. He argued that if Rainey had been standing at the bottom

of the steps to the porch, as Morgan testified, Rainey could not have shot Fleming, who

was on the porch, as the medical evidence was that the shotgun had been placed against

the back of Fleming before being fired.

        The Prosecutor’s closing statement first recapped the evidence against Rainey.

The prosecutor then said:

        Two things the statement by George Williams consider this when you
        consider the evidence against George Williams. George Williams told
        Detective Walsh and Duffy and then Detective Piree that they said “Let’s
        go stick somebody up[,”] “and then X went in his house and young boy did
        too that left me and eyeball outside th[e]n ‘X’ came out and he had changed
        his coat.[”] When he came out he was wearing a long black leather coat
        corroborative of what Alvin Morgan testified to. [“]I saw the rifle he had it
        like down his pants leg.[”]

A551.

        Rainey’s counsel objected and, at sidebar, moved for a mistrial because the

prosecutor “said to this jury that the description of ‘X’ being in a black leather coat is


                                              10
corroborative of what Alvin Morgan says and Alvin Morgan said Michael Rainey was in

a leather coat.” A552. The trial judge agreed that the prosecutor had indirectly identified

who “X” was. The judge even told the prosecutor that he “blew the case for the

Commonwealth.” A553. The judge then adjourned the court for the day.

       The trial judge met with counsel in chambers and announced his decision not to

declare a mistrial but instead to instruct the jury that the statement by Williams could

only be used against Williams. The judge believed that such an instruction would “cure

any inferences that there might be some reference to Mr. Rainey by indirection.” A571.

       The prosecutor continued with his closing statement. He argued that there was

sufficient evidence of premeditation to convict Rainey of first-degree murder. The

prosecutor argued:

       There was no struggle with Michael Rainey. Michael Rainey put the gun to
       the back of [Carroll] Fleming and pulled the trigger and shot him in the
       back. This is not a gun going off subsequently in a struggle when no one
       anticipated it. This was a gun that was loaded moments before with the
       [intent] to use it. Placed in the back of a person and shot. That is not second
       degree murder I submit to you ladies and gentlemen. . . . Based on the
       evidence [that] is murder in the first degree and intentionally premeditated
       whether he had it fully formed in his mind back in the house to kill or just
       formed it when he pushed the gun forth.

A 582-83.

       The judge then charged the jury. The judge instructed that Williams’s statement

was redacted because the law instructs that “if a statement is made by a person, that

statement can only come in against that person.” A599. The judge instructed that the

statement could not be used “against anybody at trial except Mr. Williams.” A600.



                                             11
       The jury then began deliberations. During deliberations, the jury sent a message to

the court, which read, “We would like to hear George’s statement to homicide detectives

as to the conversation between George and ‘X’ in front of ‘X’s’ house and as to the

people down the street.” A630. However, the statement was not available, as the court

reporter who had transcribed the statement was out ill. The jury was instructed to rely on

their best recollections of the evidence.

       Four hours later, the jury reached a verdict against both defendants, finding

Williams guilty of murder in the second degree and Rainey guilty of murder in the first

degree.

                                 b. Post-Trial Proceedings

       Rainey appealed his conviction. His appeal reached the Supreme Court of

Pennsylvania, which issued an opinion in March 1995. See generally Commonwealth v.

Rainey (Rainey I), 

(Pa. 1995). Rainey argued that his trial counsel was

constitutionally ineffective in failing to obtain a mistrial after the alleged Bruton

violations. See 

The Supreme Court denied that claim, noting that trial counsel

did object and move for a mistrial, and, at any rate, Rainey’s rights under Bruton were

not violated. See 

n.5. Moreover, the Supreme Court found any such error

harmless. See 

raised several claims in a petition under the Pennsylvania Post-

Conviction Relief Act (PCRA). His petition was denied, and he appealed that ruling to

the Pennsylvania Supreme Court. In 2001, Rainey’s case was remanded for a more

detailed PCRA opinion. See Commonwealth v. Rainey (Rainey II), 

, 942

                                              12
(Pa. 2001). His petition was again denied and he again appealed to the Pennsylvania

Supreme Court. In July 2007, his appeal was denied in relevant part. See generally

Commonwealth v. Rainey (Rainey III), 

(Pa. 2007). 1 The Pennsylvania

Supreme Court rejected Rainey’s argument that he was entitled to relief because of the

introduction of Williams’s redacted statement. 

The court also denied Rainey’s

argument that trial counsel was ineffective in not moving to sever his trial from

Williams’s. 

The court reasoned that severance was not likely to be granted,

given the interests favoring joint trials, and that any prejudice was harmless given the

overwhelming evidence against Rainey. 

       Rainey filed a petition for a writ of habeas corpus in the Eastern District of

Pennsylvania. He raised three issues: (1) his Sixth Amendment rights were violated by

the use of Williams’s redacted statement; (2) his counsel was ineffective in not moving to

sever his trial from Williams’s; and (3) his rights under Batson v. Kentucky, 

(1986), were denied. The District Court rejected all three claims and did not issue a

certificate of appealability.

       Our Court granted a certificate of appealability on two issues: (1) whether the

District Court erred in denying Rainey’s claim that his rights under the Confrontation

Clause were violated; and (2) whether the District Court erred in denying Rainey’s claim

that his counsel performed ineffectively by failing to sever his trial from his Williams’s.



       1
          The court did grant Rainey’s appeal as to an aspect of the penalty phase of his
capital trial. 

His case was remanded for resentencing, and the prosecution did
not seek the death penalty on remand.
                                             13
                                       II. Discussion

       Rainey argues that he is entitled to relief because his Sixth Amendment right to

confront witnesses against him was violated by the introduction and use of Williams’s

out-of-court statement, and because his counsel was ineffective in failing to timely move

to sever his trial from Williams’s. We ultimately agree with the Commonwealth that both

alleged errors were harmless under the deferential Brecht standard of review.

                                    a. Legal Framework

       We review the District Court’s conclusions de novo, applying the same legal

standard that the District Court should have applied. Brown v. Wenerowicz, 

,

627 (3d Cir. 2011). Accordingly, we review the state-court decisions under the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 

under 28 U.S.C. § 2254 must have first exhausted his state-court

remedies. 28 U.S.C. § 2254(b)(1)(A). In doing so, he must have “fairly presented” his

claim for relief to the state courts before a federal court can award relief on that claim.

See Nara v. Frank, 

, 197-98 (3d Cir. 2007). If a claim has been fairly

presented to the state courts, we must then, under AEDPA, determine whether the state

court reached a decision on the merits of a claim. See Collins v. Sec’y of the Pa. Dep’t of

Corr., 

, 544 (3d Cir. 2014). If, as here, the state court adjudicated the claim

on its merits, we give substantial deference to that decision, reversing it only if was

“contrary to, or involved an unreasonable application of, clearly established Federal law

as determined by the Supreme Court of the United States,” or where the state-court



                                              14
decision involves an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-

(2).

       Even if a petitioner can demonstrate that his constitutional rights were violated, he

will still only be entitled to relief if the error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 

, 623,

(1993). In addition to applying the Brecht standard, we must also examine the state

court’s application of the harmless error standard from Chapman v. California, 

, 24 (1967), which applies on direct appeal and requires the government to show an

error was harmless beyond a reasonable doubt. See Davis v. Ayala, 

, 2197

(2015). (citing 

). In reviewing the state court’s application of the

Chapman standard, we apply AEDPA deference and ask only whether the state court was

unreasonable in finding that the error was harmless beyond a reasonable doubt. See 

The Supreme Court has clarified that the Brecht standard “subsumes” AEDPA

deference. 

a court need not formally apply both Brecht and Chapman, it

also cannot merely disregard the state court’s conclusions, as “AEDPA nevertheless sets

forth a precondition to the grant of habeas relief.” See 

marks

omitted).




                                               15
                              b. Confrontation Clause Claim

       1. Merits

       We conclude that, because the Commonwealth’s evidence and arguments so

obviously and inescapably identified Rainey as “X,” it was unreasonable for the state

courts to find that the right announced in Bruton had not been violated. 2

       As an initial matter, we disagree with the Commonwealth’s position that Rainey

did not fairly presented his Bruton claim the state courts. The Commonwealth argues that

Rainey needed to specify that the Bruton and Marsh cases alone—that is, without

reliance on Gray, see supra note 2—entitled him to relief. But the Commonwealth is

reading the exhaustion requirement too narrowly. To fairly present a claim, a petitioner

need only “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.” McCandless v.

Vaughn, 

, 261 (3d Cir. 1999). Indeed, a “petitioner need not have cited

       2
         It would be even clearer under the law as currently established that Rainey’s
rights under the Confrontation Clause were violated. See generally Gray v. Maryland,

, 197 (1998) (holding that a co-defendant’s statement “which substituted
blanks and the word ‘delete’ for the [defendant’s] proper name, falls within the class of
statements to which Bruton’s protections apply.”). On habeas review, however, with,
perhaps, limited exceptions that do not apply here, we are limited to the question of
whether the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States” at the time that the state court rendered its decision on the merits.
Greene v. Fisher, 

, 43-44 (2011). Here, Rainey’s decision became final on
direct review prior to the rule in Gray being announced. On collateral review, the
Pennsylvania Supreme Court held that Gray represented a new rule of law that could not
be applied retroactively to Rainey. Rainey 

. Rainey does not
challenge this ruling. Thus, we cannot rely on the rule established in Gray when
examining whether Rainey is entitled to relief. Cf. 

(“The Third
Circuit thus correctly held that Gray was not ‘clearly established Federal law’ against
which it could measure the Pennsylvania Superior Court’s decision.”).
                                             16
‘book and verse’ of the federal constitution” to have fairly presented a claim—let alone

have cited the correct Supreme Court case law. See 

to “reliance on

pertinent federal cases,” a petitioner can also fairly present a claim through “assertion of

the claim in terms so particular as to call to mind a specific right protected by the

Constitution;” or “allegation of a pattern of facts that is well within the mainstream of

constitutional litigation.” 

. Here, Rainey not only alleged a factual

pattern well within the mainstream of Confrontation Clause litigation, he also specifically

invoked the Confrontation Clause as well as Bruton and Marsh. See Initial Brief of

Appellant at 16, Rainey III, 

(Pa. 2007) (Nos. 468 & 469 CPA), 

, at *16 (citing Bruton and Marsh for the propositions, respectively, that the

admission of a codefendant’s extra-judicial statement inculpating the defendant violates

the Sixth Amendment and that the Confrontation Clause is violated if the co-defendant’s

statement is not redacted to remove all reference to the defendant). This was more than

sufficient to put the state court on notice of his Confrontation Clause claim and we find

that Rainey fairly presented his claim to the state courts. See 

. 3

       In assessing Rainey’s claim, the state courts were unreasonable in concluding that

his rights under the Confrontation Clause, as established by Bruton, had not been

violated. By the time that Williams’s statement was introduced at trial, the jury had


       3
         Indeed, the Pennsylvania Supreme Court, in denying Rainey’s PCRA appeal,
acknowledged these arguments and found several of them to have been previously
litigated. See Rainey 

. This finding by the Pennsylvania Supreme
Court that these arguments were previously litigated “provides strong evidence that the
claim has already been given full consideration by the state courts and thus is ripe for
federal adjudication.” Cone v. Bell, 

, 467 (2009) (emphasis in original).
                                             17
already heard from Lewis and Morgan. Both had testified that: (1) Rainey, Morgan, and

Williams were the participants; (2) that Rainey was wearing a black leather trench coat;

and (3) that Rainey was the shooter. Morgan had further testified that Rainey had, at his

house, formulated the plot to rob Fleming and had used a sawed-off shotgun to shoot

Fleming. Thus, by the time the statement from Williams was entered into evidence, there

could have been no ambiguity as to the identity of the trench coat-wearing, shotgun-

wielding “X,” who planned the crime at his house, and then, alongside Williams and

Morgan (whose names were not redacted), went to Fleming’s house and shot Fleming.

Even if there were any remaining doubt as to “X’s” identity, all such doubt was surely

erased after (1) Detective Walsh broke the redaction and identified “X” as Mike; and (2)

the prosecutor argued that the jury could use the statement’s description of “X” to

corroborate Morgan’s description of Rainey.

       This went far beyond what the Supreme Court found permissible in Marsh. In

Marsh, the statement at issue had been redacted to “eliminate not only the defendant’s

name, but any reference to his or her 

; see also Greene v.

Palakovich, 

, 106 (3d Cir. 2010), aff’d sub nom. Greene v. Fisher, 

(2011) (finding no Bruton violation where “consistent with Bruton and Marsh, all

references to the other defendants by proper name or nickname had been removed”).

Here, on the other hand, “X” was the main focus of Williams’s statement. Moreover, in

Marsh, unlike here, the statement only implicated the defendant due to the fact that after

the statement was introduced, the defendant herself testified and, by inference, implicated

herself in the statement. Here, the prosecution itself introduced testimony that made

                                            18
obvious the identity of “X” before the statement was introduced, and then, in closing

argument, the prosecution again connected “X” to Rainey.

       Given that there was no escaping the conclusion here that “X” was Rainey, the

jury could not have been expected to follow the instruction not to use Williams’s

statement against Rainey. Cf. 

(“[W]ith regard to such an explicit

statement the only issue is, plain and simply, whether the jury can possibly be expected to

forget it in assessing the defendant’s guilt; whereas with regard to inferential

incrimination the judge’s instruction may well be successful in dissuading the jury from

entering onto the path of inference in the first place, so that there is no incrimination to

forget.”); 

(“Despite the concededly clear instructions to the jury

to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context

of a joint trial we cannot accept limiting instructions as an adequate substitute for

petitioner’s constitutional right of cross-examination. The effect is the same as if there

had been no instruction at all.”). We therefore conclude that the Pennsylvania Supreme

Court was unreasonable in concluding that the use of Williams’s statement here was not a

violation of Rainey’s clearly established Confrontation Clause rights.

       2. Harmless Error

       Notwithstanding our determination that the use of Williams’s statement here

violated Rainey’s right to confront the witnesses against him, however, we must still

determine whether those errors can be considered harmless. We conclude they were.

       When determining whether a Confrontation Clause error was harmless we

examine several factors, including “the importance of the witness’ testimony in the

                                              19
prosecution’s case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.” Delaware v. Van Arsdall, 

, 684 (1986). Weighing

these factors, we ultimately ask if we are left with “grave doubt about whether [the error]

had substantial and injurious effect or influence in determining the jury’s verdict.” See

–98 (internal quotation marks omitted).

       Here, although Williams’s statement was important to the prosecution’s case, we

nevertheless find the error harmless because the evidence of Rainey’s guilt was so

overwhelming and because Williams’s statement was largely cumulative of the other

evidence presented.

       Rainey argues that only Williams’s statement provides evidence of the specific

intent needed for a first-degree murder conviction. We, however, agree with the

Commonwealth that, absent Williams’s statement, there was still overwhelming evidence

that Rainey shot Fleming after having formed a specific intent to kill him. Cf.

Commonwealth v. Mikell, 

, 569 (Pa. 1999) (“To establish murder in the first

degree, the Commonwealth must prove, inter alia, that the defendant specifically

intended to kill, which fact is established by proof of premeditation and deliberation.”).

As the Commonwealth notes, “[a] specific intent to kill may be proven by circumstantial

evidence and can be inferred from the defendant’s use of a deadly weapon on a vital part

of the victim’s body.” 

Morgan’s testimony was clear that Rainey,

after announcing that he would be willing to “shoot somebody,” A341, and within

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moments after loading a yellow shell into his sawed-off shotgun, fired a single shot,

unprovoked, into Fleming’s back at close range. Cf. Commonwealth v. Randolph, 

, 1281 (Pa. 2005) (finding that the firing of a gun into a victim’s back qualified

as use of a deadly weapon on a vital part of the victim and was sufficient evidence of a

specific intent to kill). This account was corroborated by the medical examiner’s

testimony that the shotgun was first pressed against Fleming’s back and then fired and

that there were no signs of a struggle. It was corroborated also by the firearms expert’s

testimony that the projectiles and debris found in and around Fleming’s body, including a

yellow shell, came from a shotgun.

       Morgan’s account was also consistent with Lewis’s testimony that it was Rainey

who fired the only shot. Rainey argues, however, that Morgan’s and Lewis’s accounts

were inconsistent and unreliable and therefore relatively weak evidence of specific intent.

We disagree. Although the two accounts differ as to whether it was Rainey or Williams

who knocked on the door, and as to whether Rainey was standing on the porch or at the

bottom of the porch when he fired the shotgun, they agree as to the fundamentals:

Rainey, Williams, and Morgan planned to rob Fleming; Fleming’s door was kicked in;

Williams’s gun was inoperable; Morgan stood back from the house and witnessed the

events; and, most crucially, Rainey fired the only shot. Both Morgan and Lewis also

testified that Rainey had confronted them and encouraged them not to cooperate with the

investigation or prosecution. Their accounts corroborated each other and were further

corroborated by the investigatory evidence, including the displaced plexiglass from the

door and the aforementioned medical and firearms evidence. Lewis and Morgan were

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both, therefore, powerful witnesses, despite the deals they received in exchange for their

testimony.

           Because Williams’s statement added next to nothing new to the overwhelming

evidence of Rainey’s guilt, we find that the Bruton violation did not have “substantial and

injurious” effect on the jury’s verdict, and the Pennsylvania Supreme Court did not act

unreasonably in finding that the error was harmless beyond a reasonable doubt. We will

therefore affirm the judgment of the District Court, and, consistent with the judgment of

every court to consider the issue, find that the use of Williams’s statement was harmless

error. 4

                            c. Ineffective Assistance of Counsel Claim

           Rainey also urges that his attorney was constitutionally ineffective in failing to

move to sever Rainey’s trial from Williams’s. This claim lacks merit for essentially the

reasons explained by the District Court and the state courts. To find in Rainey’s favor we

would need to find that his counsel’s performance fell below an objective standard of

reasonableness in failing to move for a severance, and that, but for this failure, there is a

reasonable probability that the outcome of Rainey’s trial would have been different. See

Strickland v. Washington, 

, 687 (1984). Leaving aside the first prong—the

reasonableness of counsel’s decision not to seek a severance—we do not think that,

           4
        Rainey notes that the jury requested to review Williams’s statement again and
argues that it shows that the jury was placing substantial weight on the statement. But this
conclusion does not necessarily follow. First, the jury requested “the conversation
between George and ‘X’,” A630, which suggests that they were respecting the redaction
and not seeking to use the statement against Rainey. Secondly, the more plausible
explanation for the request is that the jury wanted to use it to try and determine whether
Williams had formed an intent to shoot Fleming.
                                                 22
absent trial counsel’s error, there was a reasonable probability that Rainey would have

been found not guilty. First, the trial court was unlikely to grant the motion to sever. Cf.

United States v. Voigt, 

, 1095 (3d Cir. 1996) (holding that even “finger-

pointing and blame-shifting among coconspirators do not support a finding of mutually

antagonistic defenses” necessitating a severance of trials). More fundamentally, however,

as we have discussed, the evidence establishing Rainey’s guilt was overwhelming, and he

would have been convicted regardless of whether he was tried jointly with Williams or

separately. See Breakiron v. Horn, 

, 147 n.18 (3d Cir. 2011) (“Strickland

prejudice and Brecht harmless error are essentially the same standard.”).

                                        III. Conclusion

       For the foregoing reasons we will affirm the District Court’s denial of Rainey’s

petition for a writ of habeas corpus.




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