United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
Paul Alvarado, a federal inmate proceeding pro se,
has filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The government
filed a response, asking that the petition be denied, to
which Alvarado has replied. After reviewing the record, the
court concludes that Alvarado's § 2255 motion must
was named in a one-count indictment charging him with
knowingly and intentionally distributing a mixture and
substance containing a detectable amount of heroin, and
further charging that serious bodily injury and death
resulted from the use of such substance, all in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C). These charges
stem from the March 29, 2011 death of Eric Thomas from a drug
16, 2013, after a four day trial, the jury returned a guilty
verdict against Alvarado on the charge of knowingly and
intentionally distributing a mixture or substance containing
a detectable amount of heroin on or about March 29, 2011. The
jury further found that the government proved beyond a
reasonable doubt that death resulted from the use of heroin
distributed by Alvarado on or about March 29, 2011. During
the course of its deliberations, the jury twice asked the
court to furdier explain what "results from" means,
which the court, without objection of counsel, declined to
do, following the Seventh Circuit's opinion in United
States v. Hatfield, 591 F.3d 945 (7th Cir. 2010). At the
time the jury sought clarification, Burrage v. United
States, 571 U.S. 204 (2014), which ultimately provided
that clarification, was still eight months off.
§ 2255 petition focuses first on this issue, claiming
that his trial counsel was ineffective for failing to object
to the court's decision not to further explain
"results from" in response to the jury's
questions. Alvarado's second claim also relates to
causation, arguing that he was legally, factually, and
actually innocent of the charge of distributing heroin mat
was the independent or but-for cause of Thomas' death.
Alvarado argues that it was a combination of Xanax and heroin
that killed Thomas, and that, at most, heroin was a
contributing cause. Following Burrage, Alvarado
argues that the contributory role played by the heroin was
legally insufficient to establish but-for causation required
for the enhanced statutory penalty. Lastly, Alvarado argues
that his trial counsel was ineffective for failing to argue
that prosecution was racially motivated, denying him due
process and equal protection of the laws.
respect to Alvarado's first claim, because the Fourth
Circuit held that the district court's decision not to
clarify or reinstruct the jury on the meaning of the term
"results from" was not erroneous, it cannot be said
that counsel's failure to object to that ruling
constituted deficient performance under Strickland v.
Washington, 466 U.S. 668 (1984). See Pruett v.
Thompson, 996 F.2d 1560, 1577 (4th Cir. 1993) ("We
are of opinion that it is not ineffective assistance of
counsel to fail to offer additional or different instructions
if the ones given by the trial court are proper. This
question [of ineffective assistance of counsel] is easily
resolved here because the instruction given was
proper."); Briley v. Bass, 750 F.2d 1238,
1242-44 (4th Cir. 1984) (dismissing petitioner's claim
that his counsel was ineffective for failing to object to a
jury instruction that the court already found to be proper);
Moore v. United States, 934 F.Supp. 724, 731 (E.D.
Va. 1996). For counsel's performance to qualify as
constitutionally deficient, Alvarado must show "that
counsel made errors so serious that [he or she] was not
functioning as the 'counsel' guaranteed [to] the
defendant by the Sixth Amendment." Strickland,
466 U.S. at 687. "[A] court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy." Id. at 689.
court chose to limit its instruction to the language of the
statute, concerned that any attempt at further
"clarification" of "results from" would
exacerbate the jury's confusion. United States v.
Alvarado, 816 F.3d 242, 248 (4th Cir. 2016), cert
denied. 137 S.Ct. 492 (2016). The record indicates
that Alvarado's counsel shared what the Fourth Circuit
described as the district court's "legitimate
concern," and therefore she decided not to object to the
jury's application of the ordinary meaning of
"results from." Id. at 244, 248. Her
decision not to object to the instruction, made after
conferring with both the court and government, is precisely
the sort judgment call informed by strategic considerations,
Le., potential confusion of the jury, that courts must accord
high deference. See United States v. Mason, 774 F.3d
824, 830 (4th Cir. 2014).
Supreme Court's holding in Burrage v. United
States, on which Alvarado relies for his ineffectiveness
claim, further supports the court's finding that it was
reasonable for counsel not to object given the aforementioned
risk of confusion. 571 U.S. 204 (2014). In Burrage,
the Supreme Court held that the "ordinary, accepted
meaning" of "results from" clearly imposes a
"but-for" causation requirement. Id. at
210-11. Though decided after the case sub judice,
Burrage suggests that it was reasonable for counsel
to conclude that the statutory language alone implied the
appropriate but-for causation requirement, and that further
explanation was unwarranted. In sum, it was reasonable for
counsel not to object to the court's instruction, which
comported with controlling law, where she believed the risk
of obfuscating the ordinary meaning of "results
from" outweighed the notional benefits of an additional
instruction. This is all the more true given that past
efforts to clarify the same or similar language were either
unsuccessful or deemed ill-advised. See e.g.,
United States v. Hatfield, 591 F.3d 945 (7th Cir.
2010) (holding that the trial court improperly refused to
strike portion of jury instruction as a confusing gloss on
the statutory term "results from"); United
States v. Walton, 207 F.3d 694, 698 (4th Cir. 2000) (en
banc) ("[W]e remain convinced that attempting to explain
the words 'beyond a reasonable doubt' is more
dangerous than leaving a jury to wrestle with only the words
themselves."). The case law in existence at the time of
trial and potential for further confusion militated against
the court's providing an additional instruction, and by
extension, supported counsel's decision not to raise an
objection to the same. Thus, Alvarado cannot show that his
counsel's decision not to object to the court's
instructions amounted to "incompetence under
'prevailing professional norms.'" Premo v.
Moore, 562 U.S. 115, 122 (2011).
Alvarado satisfy Strickland's prejudice prong,
which requires a showing that had counsel not made the
alleged error, there is a substantial, not just conceivable,
likelihood of a different result. Harrington v.
Richter, 562 U.S. 86, 112 (2011) (citing
Strickland. 466 U.S. at 693-94)). In light of the
evidence adduced at trial, Alvarado can make no such showing.
The Fourth Circuit found not only that "[t]here was no
evidence in this case that would allow a jury to find that
heroin was only a nonessential contributing cause of
Thomas' death," but also that "[t]he
only evidence presented was that, but for the
heroin, death would not have resulted."
Alvarado, 816 F.3d at 248-49. In other words,
"in the context of the record in this case,
Burrage does not help Alvarado." Id.
at 249. Indeed, as the Fourth Circuit noted, Dr. Suzuki, the
only witness to testify on causation, stated in no uncertain
terms, "it's the heroin in [Thomas'] blood . . .
that caused his death," and "without the heroin,
[Thomas] doesn't die." Id. Therefore,
rather than there being a substantial likelihood that the
result would have been different had the jury received an
explicit but-for instruction, the evidence strongly suggests
that, to the contrary, there is a substantial likelihood that
the result would have been the same. See e.g..
Wave v. Townley, 871 F.2d 18, 21 (4th Cir. 1989)
("In light of the overwhelming evidence introduced at
trial. . . .[defendant] cannot show that "there is a
reasonable probability that, but for counsel's
unprofessional [error], the result of the proceeding would
have been dfferent." (citation omitted)).
short, because the Fourth Circuit has held that district
court's decision not to reinstruct the jury on the
meaning of "results from" was not error, Alvarado
cannot establish that counsel's failure to object or
insist upon an addtional instruction constitutes ineffective
assistance. Nor can he establish Strickland's
prejudice prong, as the Fourth Circuit held that the record
was unambiguous that the heroin distributed by Alvarado was
the but-for cause of Thomas' death. Id. at 249.
Objection or not, the Fourth Circuit held on direct
review that the district court's decision not to
reinstruct the jury was correct. Under these circumstances,
the claimed failure to object to a legal ruling approved by
the court of appeals on direct review cannot support an
ineffective assistance of counsel collateral challenge.
second claim regarding actual innocence is foreclosed by the
Fourth Circuit's opinion on direct appeal. Specifically,
the Fourth Circuit ruled as follows:
We affirm. First, we conclude that, because there was no
evidence in the record that Thomas could have died without
the heroin, the jury's verdict was necessarily consistent
with the Supreme Court's requirement of but-for
causation. As a result, the district court's decision not
to elaborate on the meaning of the statutory results-in-death
language did not amount to an abuse of discretion, ...