485 F.3d 103 (3rd Cir. 2006), 04-9005, Albrecht v. Horn

Docket Nº:Martin HORN, Commissioner, Pennsylvania Department of Corrections, Appellant in No. 04-9005.
Citation:485 F.3d 103
Party Name:Alfred ALBRECHT, Sr., Appellant in No. 04-9006 v.
Case Date:November 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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485 F.3d 103 (3rd Cir. 2006)

Alfred ALBRECHT, Sr., Appellant in No. 04-9006


Martin HORN, Commissioner, Pennsylvania Department of Corrections, Appellant in No. 04-9005.

Nos. 04-9005, 04-9006.

United States Court of Appeals, Third Circuit.

Nov. 21, 2006.

Argued June 29, 2006.

Petition for Panel Rehearing Granted and Opinion Vacated April 10, 2007.

Submitted April 11, 2007 after Granting Panel Rehearing.

Filed April 19, 2007.

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Stuart B. Lev (Argued), Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, Counsel for Alfred Albrecht, Sr.

Michelle A. Henry, David W. Zellis, Stephen B. Harris (Argued), Colin D. Dougherty, Office of the District Attorney, Doylestown, PA, Counsel for Martin Horn, Commissioner, Pennsylvania Department of Corrections.

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Before: SLOVITER, AMBRO and COWEN, Circuit Judges.


COWEN, Circuit Judge.

Alfred Albrecht, Sr. was found guilty by a Bucks County, Pennsylvania, Court of Common Pleas jury of first degree murder, two counts of second degree murder, and arson for causing the death of his wife, his mother, and his daughter by setting the family home on fire on the morning of May 1, 1979. He was sentenced to death for the murder of his wife. He also received two life sentences for the second degree murder convictions for the deaths of his mother and daughter, and a sentence of ten to twenty years imprisonment for arson, each sentence to run consecutively to the other and the sentence of death.

In an order entered on April 21, 2004, the District Court granted a writ of habeas corpus and vacated the death sentence pursuant to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), because of an ambiguous jury instruction concerning whether mitigating circumstances had to be found unanimously. The District Court, applying Third Circuit precedent at that time, determined that Mills could be applied retroactively because it did not announce a new rule of constitutional law, Banks v. Horn, 316 F.3d 228 (3d Cir.2003) (addressing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Although we agree that a Mills violation occurred in Albrecht's case, subsequent to the District Court's granting the writ our decision in Banks was reversed by the United States Supreme Court in Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), which held that Mills announced a new rule of constitutional law that would not apply retroactively to any case, such as this one, that became final prior to Mills.

The Commonwealth did not argue the nonretroactivity defense in the District Court, but we hold that the defense was properly raised for the first time in the brief on appeal, with specific reliance upon Beard v. Banks, and thus it is not waived. Because the District Court did not have the benefit of the Supreme Court's 2004 Beard decision when it granted the writ on the basis of Mills, we will not reverse; instead, we will vacate the order granting the writ, and the matter will be remanded. On remand, the District Court should apply Teague's ban on retroactive application of new rules of constitutional law and deny relief on the Mills claim. The Court should consider the remaining sentencing-phase issues, which it initially denied as moot. The District Court's determination that the guilt-phase issues do not warrant habeas relief will be affirmed.

I. Background & Procedural History

On May 1, 1979, a neighbor saw smoke coming from the Albrecht home and called the fire department. When one of the firemen responding to the fire entered the burning structure he discovered the charred remains of Carolyn Albrecht, appellant's wife, Anita Albrecht, his seven-year-old daughter, and Marian Albrecht, his elderly mother. All three died as a result of the fire. Albrecht was arrested in January 1980 after the arson investigation was completed.

The Commonwealth sought to prove that the fire was arson, and that the identity of the arsonist could be inferred from the violence and hostility Albrecht had directed toward Mrs. Albrecht in the months before the fire. The trial court permitted the Commonwealth to introduce evidence that, in the seven months prior to the fire, Mrs. Albrecht had been physically abused

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by Albrecht, and that Albrecht was having an extramarital affair. Some of the abuse testimony was dramatic, such as testimony that Mrs. Albrecht had been burned about the head with a cigarette and had bald spots on her scalp where her hair had been yanked out.

We summarize that evidence here. Patricia Fullmer, a friend of Mrs. Albrecht's, testified that Albrecht ridiculed Mrs. Albrecht about her weight, and he admitted he had a girlfriend, Linda Bethman. Fullmer saw Mrs. Albrecht with her hair torn out and burn marks on her face. Fullmer testified:

She had a bruise on her chest about the size of a saucer, and she was kicked in the legs and she had bruises on her calf and he had banged her head against the refrigerator, and she said her head was numb so she didn't feel it when he burned her face with a cigarette.

Supp. App. 1990. Mrs. Albrecht's co-workers, Sara Joraskie and Bonita Waitl, also testified to seeing first-hand Mrs. Albrecht's battered appearance in the months before the fire.

Attorney Marc Steinberg represented Mrs. Albrecht and filed a Protection from Abuse Petition in the Court of Common Pleas of Bucks County. The state court issued a restraining order barring Albrecht from the house and directing him to refrain from abusing his wife for one year. On February 7, 1979, Steinberg again saw his client, and she complained that Albrecht had beaten her the night before. Steinberg testified that Mrs. Albrecht had black and blue marks on both her arms, a black eye, and bare spots on her scalp where her hair had been pulled out.

Carol and Terry Kuhns, neighbors, testified that, one day in January 1979, Mrs. Albrecht went to their home asking to be hidden in their basement because she was nervous and afraid. She told them she was not wearing her dentures because she was afraid Albrecht would hit her so hard she would swallow them. Carol Kuhns noticed black and blue marks on her face, neck, and legs, burn marks on her face, and bare spots on her scalp where hair had been pulled out of her head. Later that evening, Albrecht came over to the Kuhns' residence and demanded to be told the whereabouts of his wife. The Kuhns would not oblige by giving him that information. On February 1, 1979, Mrs. Albrecht again went to the Kuhns' residence; Terry Kuhns observed that she was battered and bruised, and had "blotches" of hair missing.

Valerie Cullingford, a bartender at Herb and Joyce's Park Tavern, where Albrecht drank, testified that, in December 1978, she observed Albrecht kissing and holding hands with a woman named Linda. Cullingford overheard Albrecht ask the woman to leave with him so he could "make a little love to her." Supp. App. 2032-33. Cullingford further testified that, the night before the fire, Albrecht came into the bar and drank five or six beers at a rate that seemed faster than usual. He complained about how he was having problems with his wife, and said that if she tried to remove him from the house again "he would sooner burn the god damn thing down." Supp. App. 2036-38.

George Weaver, a neighbor, testified that one day in January 1979 he overheard Albrecht talking in the Whitehorse Bar and referring to his wife as "that dumb bitch. I'm going to get her." Supp. App. 1637. Approximately seven months after the fire, Weaver again saw Albrecht at the Whitehorse Bar and overheard him say he was "glad it's over" and that he was "glad they're gone and that the house was burned." Supp. App. 1638-39.

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Larry Wimmer, a friend of Albrecht's, testified that Albrecht complained to him in April 1979, in Herb and Joyce's Park Tavern, that he was being forced to move out of his house because he had hit his wife, and that he would kill her if he could not get back into it. Within a month of the fire, Albrecht told Wimmer that "he had a good lawyer, he would get away with it, [and] nobody would prove it." Supp. App. 1975.

A few days prior to the fire, John Wheeler, an employee at Herb and Joyce's Park Tavern, observed Mrs. Albrecht with a bruise around her eye and heard Albrecht state he would rather burn down his house than let his wife have it. Prior to this conversation, Albrecht told Wheeler that if his wife gave him any trouble he would take care of her. Donald Weaver, one of Albrecht's neighbors, testified that, while at the Whitehorse Bar and two or three days before the fire, he heard Albrecht say he was going to go home and "shoot the old lady and burn the house down." Supp. App. 1578. Paul Serocki testified that, a few days before the fire and while at the Whitehorse Bar, he overheard Albrecht say he was going to burn down his house.

On the evening prior to the fire, Perkasie Borough police officer Barry Heckenswiler was summoned to the Albrechts' home in response to a call by Albrecht's fifteen-year-old son, Alfred Jr. Upon his arrival, Officer Heckenswiler smelled alcohol on Albrecht's breath and noticed his elderly mother sweeping up glass from a broken lamp. Mrs. Albrecht told Officer Heckenswiler that she and Albrecht had argued, that Albrecht had threatened to burn her dress, and that she wanted to go to a hospital or local psychiatric facility. Subsequently, the situation calmed and Officer Heckenswiler left.

The next morning all but...

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