United States District Court, E.D. Pennsylvania
OPINION REPORT AND RECOMMENDATION, ECF NO. 17-ADOPTED
IN PART, REJECTED IN PART PETITION FOR WRIT
OF HABEAS CORPUS, ECF NO. 1-GRANTED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE.
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.
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
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
evidence at trial was as follows.
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.
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.
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.
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.
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.
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.
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.
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).
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
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)
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
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.
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).
ALVARADO'S OBJECTIONS TO THE R&R
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.
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.
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).
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.
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.
Exhaustion and Procedural Default
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.
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.
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).
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
[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
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.
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). 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. 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”).
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
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.”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
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
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.
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”). Because Alvarado cannot exhaust her
unexhausted claims, they are procedurally defaulted.
Martinez Exception to ...