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Alvarado v. Wetzel

United States District Court, E.D. Pennsylvania

July 10, 2019

CYNTHIA ALVARADO Petitioner,
v.
JOHN E. WETZEL, Secretary of the Pennsylvania Dept. of Corrections, et al., Respondents.

          OPINION REPORT AND RECOMMENDATION, ECF NO. 17-ADOPTED IN PART, REJECTED IN PART PETITION FOR WRIT OF HABEAS CORPUS, ECF NO. 1-GRANTED

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Cynthia Alvarado is serving a life sentence following a Pennsylvania state conviction for robbery and second degree murder. Alvarado was the getaway driver following the robbery of a drug dealer during which a bystander was shot and killed. The prosecution tried her on an accomplice liability theory. Following direct appeal and postconviction proceedings in Pennsylvania state court, Alvarado filed a petition for habeas corpus before this Court under 28 U.S.C. § 2254. A Report and Recommendation (R&R) has been prepared and Alvarado has filed objections, ECF No. 22.

         Alvarado's first claim in her petition involves the trial judge's written response to a question from the jury during deliberations concerning accomplice liability. Alvarado argues that the judge's response suggested that the jury could convict her on an accomplice liability theory based on the actus reus element alone without any finding that Alvarado had the mens rea, or intent element, necessary for accomplice liability. Alvarado contends that the judge's instruction relieved the prosecution of its burden of proving her intent and therefore violated her federal due process rights and that her trial counsel was ineffective for failing to object to this constitutional error.

         The Court finds that this claim entitles Alvarado to habeas relief on her claim of ineffective assistance of trial counsel. Her claim is procedurally defaulted because, even though she raised the ineffectiveness of trial counsel during her postconviction proceedings, she did not raise ineffectiveness based on the due process argument she now presents in her habeas petition. However, Alvarado's claim meets the Martinez v. Ryan exception because the Court concludes that her postconviction counsel was ineffective for failing to recognize and argue the due process issue and trial counsel's ineffectiveness for failing to object to a due process violation. Because the Court finds that Alvarado's first claim entitles her to a new trial, it does not address her second claim, alleging ineffective assistance of trial counsel on a different basis.

         II. FACTUAL AND PROCEDURAL BACKGROUND[1]

         On July 15, 2010, following a jury trial before the Honorable M. Teresa Sarmina in the Court of Common Pleas of Philadelphia County, Alvarado was found guilty of second degree murder and robbery. Alvarado was tried jointly with her cousin and boyfriend, co-defendant Oscar Alvarado. Commonwealth v. Alvarado, No. CP-51-CR-1257-2009, slip op. at 1 (C.P. Phila. Apr. 19, 2011). Following her conviction, Alvarado was sentenced to a mandatory term of life imprisonment for the second degree murder conviction; the robbery conviction merged with the second degree murder conviction for purposes of sentencing. Id.

         The evidence at trial was as follows.

         At approximately 4:20 p.m. on October 21, 2008, the victim, Marta Martinez, was shot and killed by Alvarado's co-defendant Oscar Alvarado at the Fairhill Square Park located in Philadelphia. N.T. 7/13/10, at 188.

         Earlier that same afternoon, at approximately 3:00 p.m., Alvarado and Oscar Alvarado had purchased Xanax from a person in the park, which is well-known for the illegal sale of prescription medication. N.T. 7/12/10, at 97, 102; N.T. 7/13/10, at 200. Alvarado drove Oscar Alvarado to the park. While Oscar Alvarado was in the park purchasing the pills, Alvarado waited across the street in her car, a red Honda Civic. N.T. 7/12/10, at 92; 7/13/10, at 202. While waiting, Alvarado encountered a childhood friend, Maiced Beltran. N.T. 7/12/10, at 92-95. Alvarado offered Ms. Beltran a ride, which she accepted. When Oscar Alvarado returned with the drugs, they each ingested multiple Xanax pills. Id. at 96.

         The trio spent an hour driving to various locations, with Alvarado driving, Oscar Alvarado sitting in the passenger seat, and Ms. Beltran and Alvarado's one-year old daughter sitting in the back seat. N.T. 7/13/10, at 202. At some point during this time, Oscar Alvarado pulled a gun out from underneath his seat and showed it to Alvarado and Ms. Beltran. At approximately 4:00 p.m., the trio decided to obtain more Xanax and returned to the park. N.T. 7/12/10, at 104-08. At some point during this time, Alvarado drove to the park and parked nearby. Upon arriving, Ms. Beltran suggested to Oscar Alvarado that he try to “get a play, ” meaning to get extra pills in addition to the number for which they paid. Id. at 110-11. As Oscar Alvarado began to walk away from the car and into the park to get the drugs, Alvarado called him back and stated, “Cuz, you know, you know what to do. You know, if they don't give you a play, just pull that shit out.” Id. at 112. Ms. Beltran understood this to mean that Alvarado was suggesting to Oscar Alvarado that he use his gun. Id. at 114. Ms. Beltran became upset at Alvarado for making this statement and began yelling at her. Id. at 113-15. Oscar Alvarado then left the vehicle and walked into the park. Id. at 115. The victim, a homeless woman, was standing near the parked vehicle.

         Oscar Alvarado approached a male drug dealer in the park, pulled the gun out of his waistband, stuck it in the drug dealer's midsection, and took a bottle of Xanax that the drug dealer was holding in his hand. N.T. 7/9/10, at 65-71; N.T. 7/13/10, at 202. Oscar Alvarado turned around and began walking back to the vehicle. The drug dealer began yelling, “He robbed me!” and this was repeated by other people in the park, including the victim. Some people started following Oscar Alvarado, who turned towards the people following him, and then began to run towards the car. Oscar Alvarado entered the front passenger side of the vehicle. N.T. 7/9/10, at 71-74; N.T. 7/12/10, at 115-19. The victim approached the vehicle and attempted to look into the driver's side window. N.T. 7/9/10, at 80-81. Oscar Alvarado reached across the driver's seat and shot the victim through the partially open driver's side window. Id. at 80-84; N.T. 7/12/10, at 131-32, 214. Oscar Alvarado then opened the passenger door, reached over the hood of the car, and fired two to three more shots into the park. N.T. 7/9/10, at 84-85; N.T. 7/12/10, at 32, 125-26, 218; 7/13/10, at 200. Oscar Alvarado got back into the car and said, “Pull off, pull off.” N.T. 7/13/10, at 200. Alvarado then drove away from the park and exclaimed: “That's why he loves me. That's why we ride or die.” N.T. 7/12/10, at 129.

         As the three individuals left the park, they ingested more Xanax from the bottle they had stolen from the drug dealer. N.T. 7/12/10, at 136-37. The group drove to various locations, including Alvarado's father's house, where Alvarado traded the Honda Civic for her father's red Dodge pickup truck. Id. at 141-42; 7/13/10, at 203. After leaving that house, the group purchased a vial of the drug angel dust. N.T. 7/12/10, at 140-41. The group ended their journey at Alvarado's apartment. Id. at 144-45; N.T. 7/13/10, at 118.

         Approximately four hours later, Police Officer Michaeleen Christy received a radio call that the shooter and driver were located inside Alvarado's apartment. As Officer Christy approached the location, a female matching the description of the driver opened the front door. N.T. 7/7/10, at 33-34. This female, Alvarado, was placed inside the police vehicle at the location at approximately 8:30 p.m. Id. at 35. While in the police car, Alvarado called Police Officer Goodwin over to the car and made several statements to him regarding her involvement in the crime. N.T. 7/13/10, at 120-21, 124, 128-29. Alvarado also was positively identified by another eyewitness to the shooting, Maria Schermety, while Alvarado was detained in the police car.

         At trial, the judge instructed the jury four times concerning accomplice liability. The judge gave an instruction before the jury began deliberating and then twice more during deliberations when the jury asked for clarification. The final instruction responded to a written question from the jury: “Does aiding after a crime in itself constitute accomplice liability?” N.T. 7/15/2010, at 8 (emphasis in original). After discussing the question with counsel, the trial court concluded that the correct answer to the question was “It could, ” and sent a written answer to that effect. N.T. 7/15/10, at 9-13.

         After the jury convicted her, Alvarado, still represented by her trial counsel, filed a direct appeal from the judgment raising only one issue: “Did the trial court commit legal error by instructing the jury that she could be convicted under the accomplice theory solely by aiding after the crime had been committed?” Commonwealth v. Alvarado, 53 A.3d 933 (Table), No. 3289 EDA 2010, slip op. at 5 (Pa. Super. Ct. June 19, 2012). On June 19, 2012, the Superior Court of Pennsylvania affirmed the judgment of sentence. The Supreme Court of Pennsylvania denied Alvarado's request for review. Commonwealth v. Alvarado, No. 151 ET 2012 (Pa. Oct. 5, 2012) (Table).

         Alvarado filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Counsel was appointed and filed an amended PCRA petition. Alvarado raised two issues:

1. Trial counsel was ineffective for failing to object to the court's response to a question regarding accomplice liability sent out by the jury during deliberations.
2. Trial counsel was ineffective for failing to object when the court responded to the jury's question in writing.

Commonwealth v. Alvarado, No. CP-51-CR-1257-2009, slip op. at 2, 6 (C.P. Phila. May 14, 2014). On May 14, 2014, the PCRA court dismissed the PCRA petition as meritless. Id. The Superior Court of Pennsylvania affirmed the dismissal on February 19, 2015. Commonwealth v. Alvarado, 2015 WL 5787528, No. 1923 EDA 2014 (Pa. Super. Ct. Feb. 19, 2015). On June 30, 2015, the Supreme Court of Pennsylvania denied Alvarado's request for review. Commonwealth v. Alvarado, 117 A.3d 1280 (Pa. 2015) (Table).

         Alvarado filed the instant counseled habeas petition on June 29, 2016, ECF No. 1, and a Memorandum of Law in Support of the Habeas Petition on August 18, 2016, ECF No. 5. In her habeas petition, Alvarado asserts two grounds for habeas relief:

1. Trial counsel was ineffective for failing to properly object to the Court's written response to a jury question which allowed the jury to find petitioner guilty even if she was solely an accessory after the fact.
2. Trial counsel was ineffective for failing to impeach Maiced Beltran, the state's main witness, with the fact that she had an open felony criminal case at the time of her testimony.

Petition ¶12.

         Alvarado also requests discovery and an evidentiary hearing. Pet.'s Memo. of Law at 28-30, ECF No. 5. Respondents filed a response on April 3, 2017, arguing that the petition should be denied because Alvarado's claims are procedurally defaulted and/or meritless. ECF No. 11. Alvarado filed a reply on May 19, 2017. ECF No. 16.

         III. LEGAL STANDARD

         When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process”). “District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 Fed.Appx. 142, 147 (3d Cir. 2016). The district court “may accept, reject, or modify, in whole or in part, the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C) (2009).

         IV. ALVARADO'S OBJECTIONS TO THE R&R

         The R&R recommends that Alvarado's petition be denied with respect to both claims she presents. Alvarado objects to the R&R's determinations with respect to both claims. Because the Court determines that Alvarado is entitled to relief on her first claim, it addresses her objections only with respect to that claim.

         Alvarado objects to the Magistrate Judge's conclusion that her claim based upon her trial counsel's failure to object to the judge's written supplemental jury instruction does not entitle her to relief. In her petition, Alvarado argues that her trial counsel provided ineffective assistance because he did not object to the trial court's written response to a jury question that allowed the jury to find Alvarado guilty of second degree murder solely as an accessory after the fact. Pet.'s Memo. of Law 19-20, ECF No. 5. Alvarado raises a related due process challenge as an “alternative” to her ineffective assistance claim and argues that the trial court's written answer violated her due process rights because it allowed the jury to convict her of second degree murder on an accomplice liability theory without finding all the necessary elements. Petition ¶ 12, ECF No. 1; Pet.'s Reply 6, ECF No. 16. Alvarado explains that she “wishes to preserve an independent claim” based on a due process violation. Pet.'s Memo. of Law 22.

         The R&R recommends rejecting Alvarado's ineffective assistance of counsel claim based on the jury instruction issue. The R&R notes that the Pennsylvania appellate court's decision that the trial court's written supplemental jury instruction complied with state law is binding on habeas review and that the jury instructions as a whole correctly explained all the principles of accomplice liability under Pennsylvania law. R&R 19, 23. Therefore, Alvarado's trial counsel was not ineffective by not objecting to a proper jury instruction as contrary to Pennsylvania law. R&R 24. Regarding Alvarado's due process argument, the R&R states only that:

counsel would have had no basis to object to the instructions on federal due process grounds. In particular, to show that the jury instructions on accomplice liability were unconstitutional, petitioner must demonstrate that, taken as a whole, they “relieved the state of the necessity of proving an element of the offense as required by federal law or to have deprived the petitioner of a defense the state had to afford him under federal law.” Petitioner has not made this showing.

R&R 24 (citation omitted).

         Alvarado further develops her due process argument in her objections to the R&R. She argues that the trial court's written response to the jury's question allowed the jury to find her guilty of second degree murder on an accomplice liability theory without finding the required mens rea element. Pet.'s Objs. 2-3, ECF No. 22. By telling the jury that aiding after a crime “in itself” can establish accomplice liability, the trial court's written supplemental instruction relieved the prosecution of its burden of proving that Alvarado had the intent to promote or facilitate the robbery, a necessary element of accomplice liability. Id. By failing to object to this constitutional error, Alvarado's trial counsel rendered ineffective assistance. Id.

         This Court believes that Alvarado's due process argument warrants further analysis and therefore writes separately to resolve Alvarado's objections. Ultimately, the Court concludes that Alvarado is entitled to relief on her ineffective assistance of counsel claim based on her trial counsel's failure to object to a due process violation.

         A. Exhaustion and Procedural Default

         Alvarado presents two separate claims relating to the trial court's written response to the jury's question about accomplice liability: (1) a freestanding due process claim that the trial court's instruction relieved the prosecution of its burden of proving every element of the charged offense beyond a reasonable doubt, and (2) a claim that her trial counsel was ineffective for failing to object to the due process violation.

         Respondents contend that Alvarado did not exhaust the due process argument because she did not raise it in the state court and therefore the claim is now procedurally defaulted. Resp. in Opp. 16 n.4, ECF No. 11. Alvarado responds that she presented the due process argument on direct appeal of her conviction in the Pennsylvania Superior Court and cites sections of her direct appeal brief that she claims raised the due process issue. Pet.'s Reply 5-6 and n.2.

         Habeas relief “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State, ” meaning a state prisoner must “fairly present” his claims in “one complete round of the state's established appellate review process, ” before bringing them in federal court. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process.”); see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The exhaustion requirement is grounded on principles of comity to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

         A petitioner has exhausted a federal claim only if he or she presented the “substantial equivalent” of the claim to the state court. Picard, 404 U.S. at 278. To satisfy this requirement, a petitioner must “fairly present” the 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.” Robinson v. Beard, 762 F.3d 316, 328 (3d Cir. 2014); see Baldwin v. Reese, 541 U.S. 27, 29 (2004); see McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). “It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made, ” Anderson v. Harless, 459 U.S. 4, 6 (1982), as the petitioner “must have communicated to the state courts in some way that [the petitioner was] asserting a claim predicated on federal law.” McCandless, 172 F.3d at 261. The Third Circuit has interpreted this requirement liberally and has identified four ways in which a defendant may “fairly present” a federal claim to a state court, beyond explicit reference to the federal Constitution:

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, “include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.”

Evans v. Court of Common Pleas, Delaware Cnty., Pa., 959 F.2d 1227, 1232 (3d Cir. 1992) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)).

         Alvarado did not fairly present her due process claim to the Pennsylvania courts as an independent claim. She contends that she did and cites in support a section of her brief on direct appeal, where she raised the single issue of “whether the trial court commit[ted] legal error by instructing the jury that she could be convicted under an accomplice liability theory solely by aiding after a crime had been committed[.]” Commonwealth v. Alvarado, 53 A.3d 933 (Table), No. 3289 EDA 2010, slip op. at 5 (Pa. Super. Ct. June 19, 2012). Alvarado argues that the following section of her direct appeal brief fairly presented her federal due process argument:

The Court committed legal error and Appellant was convicted of these charges because the Court's response to this question permitted the jury to find Appellant guilty as an accomplice based solely on her aiding Mr. Alvarado after he committed the robbery and the murder. An alleged accomplice aiding a principal after the principal has committed a crime is not, “in itself, ” sufficient to establish accomplice liability. Rather all of the other requisite elements for accomplice liability must also be proven, including knowledge than an offense has been committed, intent to promote or facilitate the commission of the offense and soliciting, commanding, encouraging or requesting its commission. Thus, the Court's response gave the jury the option of convicting Appellant based on an invalid and inadequate understanding of accomplice liability.

Pet.'s Reply 6 n.2 (emphasis in original).[2] This single paragraph did not fairly present the federal due process basis of Alvarado's claim. Nowhere in Alvarado's direct appeal brief did she reference the federal Due Process Clause. Moreover, she did not cite any federal cases but cited only Pennsylvania cases decided on the grounds of Pennsylvania substantive criminal law.[3] Nor did she reference the concept of due process or any other general constitutional concepts; instead, she argued only that the trial court “committed legal error” and that the jury convicted her “based on an invalid and inadequate understanding of accomplice liability.” See McCandless, 172 F.3d at 262 (holding that petitioner had not fairly presented federal claim to state courts where he cited only state cases addressing state evidence law and did not mention the terms “constitution, ” “due process, ” or even “fair trial”).

         Alvarado's argument on direct appeal resembles the petitioner's argument in Keller v. Larkins, 251 F.3d 408, 414-15 (3d Cir. 2001). In that case, the petitioner challenged the admission of certain evidence at trial on state direct appeal but cited only state cases based on state law and argued in terms of Pennsylvania evidence law. Id. at 414. The petitioner did not mention either the federal Constitution or any judicial decision based on federal constitutional law and made only passing references to the concept of a “fair trial” in his briefs before the state courts. Id. As a result, the Third Circuit Court of Appeals held that the petitioner had not fairly presented his federal due process claim to the Pennsylvania courts. Id. at 415.

         Similar to the petitioner's state court arguments in Keller, Alvarado's state court briefs contain no arguments that would have given the Pennsylvania Superior Court notice of her federal due process claim. Moreover, like the Pennsylvania courts that reviewed the petitioner's conviction in Keller, the Pennsylvania Superior Court “understandably confined its analysis to the application of state law” in resolving Alvarado's direct appeal. Id. (quoting Duncan, 513 U.S. at 366). The Pennsylvania Superior Court found that Alvarado had waived her challenge to the trial court's jury instruction and observed that “even if [Alvarado] had not waived this issue, her argument would fail for the reasons set forth by the trial court in its Rule 1925(a) opinion.”[4]Commonwealth v. Alvarado, 53 A.3d 933 (Table), No. 3289 EDA 2010, slip op. at 10 and n.3 (Pa. Super. Ct. June 19, 2012). Alvarado therefore did not fairly present her freestanding due process claim to the state courts.

         Nor did Alvarado fairly present the due process issue as a basis for an ineffective assistance of counsel claim on collateral review. Alvarado did present a claim that her trial counsel provided ineffective assistance for failing to object to the written supplemental jury instruction in her PCRA petition. However, Alvarado based her argument on state law, claiming that the trial court “committed legal error” and her trial counsel should have objected because “the law clearly provides that one cannot be held criminally liable for acts committed after a crime has occurred.” Pet.'s PCRA Brief, at 16. Again, Alvarado made no reference to the concept of due process, the United States Constitution, or constitutional concepts, and cited no federal cases or Pennsylvania cases addressing federal constitutional law.

         Although she raised ineffective assistance of trial counsel for failing to object to the jury instruction, she did not raise the federal basis of that objection that her trial counsel allegedly overlooked. For purposes of exhaustion in state court, not all ineffective assistance of counsel claims are created equal. A claim of ineffective assistance of counsel is not fairly presented if a petitioner raised an ineffectiveness claim in state court that alleged counsel was ineffective for a different reason. See Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir. 1986) (holding that state prisoner had not fairly presented his ineffective assistance of counsel claim based on alleged failure of counsel to protect prisoner's juvenile status for purposes of federal habeas petition where ineffective assistance of counsel claim presented to state courts related to counsel's advice on guilty plea and explanation of plea bargain); Holloway v. Zimmerman, No. CIV. A. 86-3138, 1990 WL 29656, at *2 n.9 (E.D. Pa. Mar. 16, 1990) (“In Gibson the Third Circuit held that the petitioner could not use a sixth amendment ineffective assistance of counsel claim to encompass all allegations of ineffectiveness.”) (collecting cases). Thus, Alvarado did not exhaust her claim that her trial counsel was ineffective for failing to raise the due process objection.

         Alvarado did not fairly present her due process claim or her claim that her trial counsel was ineffective for failing to object to the alleged due process violation in Pennsylvania state court; therefore, she did not exhaust these claims. She cannot now go back and exhaust those claims in a subsequent PCRA petition because the time for her to bring a new PCRA petition has expired. See 42 Pa. C.S. § 9545(b)(1) (requiring a PCRA petition to be filed “within one year of the date the judgment becomes final”).[5] Because Alvarado cannot exhaust her unexhausted claims, they are procedurally defaulted.

         B. The Martinez Exception to ...


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