Albrecht v. Horn, CIV.A.99-1479.

• Decision Date: 21 April 2004
• Docket Number: No. CIV.A.99-1479.,CIV.A.99-1479.
• Citation: 314 F.Supp.2d 451
• Parties: Alfred ALBRECHT, Sr. v. Martin HORN, Commissioner, Pennsylvania Department of Corrections
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 451

314 F.Supp.2d 451

Alfred ALBRECHT, Sr. v. Martin HORN, Commissioner, Pennsylvania Department of Corrections

No. CIV.A.99-1479.

United States District Court, E.D. Pennsylvania.

April 21, 2004.

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Billy H. Nolas, Robert Brett Dunham, Stuart B. Lev, Matthew C. Lawry, Philadelphia, PA, Charles Theodore Fritsch, Jr., Langhorne, PA, for Petitioner.

Colin David Dougherty, Conshohocken, PA, Heather A. Castellino, District Attorney's Office, Michele Kelly, Office of District Attorney Bucks City, Doylestown, PA, for Respondent.

MEMORANDUM AND ORDER

KAUFFMAN, District Judge.

Before the Court is the Petition of Alfred Albrecht, Sr. ("Petitioner") for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition will be granted with respect to Petitioner's sentence and denied with respect to his underlying conviction.¹

I. Background

On August 8, 1980, Petitioner was convicted by a jury of one count of first degree murder, two counts of second degree murder, and four counts of arson for the killing of his wife, his mother, and his daughter in a fire at the family's home. Answer to Petition for Writ of Habeas Corpus ("Answer") at 8. On May 2, 1983, in accordance with the jury's recommendation, Petitioner was sentenced to death.

At trial, the Commonwealth established that on May 1, 1979, at approximately 6:26 a.m., local fire departments responded to a residential fire at Petitioner's home in Perkasie, Bucks County. Answer at 1. When the fire was extinguished, they entered the house and found the bodies of Petitioner's wife, mother and daughter, who had died from the combined effect of the heat, gases, and lack of oxygen. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 766 (1986) ("Albrecht I"); Answer at 1, citing Trial Transcript ("T.T." 7/29/80, pp. 6-19). Petitioner's son survived by jumping out of a second story window. Answer at 1, citing T.T.s 7/22/80, 7/30/80.

Where Petitioner was when the fire started is disputed. Petitioner avers that he was in bed. This contention is supported by the testimony of his son, who said that he heard his father get out of bed after the fire had started. Petitioner's Post-Hearing Memorandum of Law, Exhibit 1, at 37. Petitioner is a smoker and claims that he inadvertently left a lit cigarette on the chair in the living room. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 707 (1998) ("Albrecht II"). Petitioner claims that he awoke smelling smoke and walked out of his first floor bedroom and into the living room, where he observed the raging fire. He then fled the house immediately and only when outside realized that his family was trapped inside. Petitioner was advised by a neighbor, a fireman, not to re-enter the house. Petitioner's Post-Hearing Memorandum, Ex. 1, at 50.

The Commonwealth, however, asserts that Petitioner started the fire in the kitchen, using gasoline as an accelerant. Answer at 15-16, citing T.T.s 7/23/80, 7/24/80, 7/25/80. According to Commonwealth fire experts, the presence of petroleum distillates in the wood under the kitchen floor, the presence of lead on various objects found at the scene, the presence of gasoline in the ceiling tiles, and the "blistering" and burn patterns found in the wood in the living room and kitchen demonstrated that the fire could not have been accidental and that a liquid accelerant (gasoline) was used to start the fire. Answer at 2, citing T.T.s 7/28/80, 7/31/80.

When police searched Petitioner's car, they found an empty gas can with Petitioner's fingerprints and soot on it. Answer at 2, citing T.T.s 7/24/80, 7/28/80. The soot was determined to contain gasoline. Answer at 3, citing T.T. 7/31/80. A local gas station employee testified that Petitioner had attempted to purchase gasoline for that can on the afternoon before the fire. Answer at 3, citing T.T. 7/31/80.

The Commonwealth also introduced evidence that Petitioner abused his wife physically and emotionally and that he had threatened to harm her in the weeks before her death. Albrecht I, 511 A.2d at 766-768. This evidence included testimony from his wife's attorney about Petitioner's alleged violation of a December 1978 Protection from Abuse Act order. Id., 511 A.2d at 767. It also included testimony from neighbors and friends who observed the physical manifestations of abuse, including bruises, missing clumps of hair, and cigarette burns on Petitioner's wife in the months preceding her death. Id.; Answer at 3-6. Neighbors further testified about a particular incident when Petitioner's wife took refuge from Petitioner at their house. Albrecht I, 511 A.2d at 767. The Commonwealth also offered testimony that Petitioner had at least one extramarital affair. Id. at 766; Albrecht II, 720 A.2d at 702.

The evidence at trial revealed that this pattern of abuse continued through the night before the fire, when Petitioner's son ran to the neighbors' house and related that his father was abusing his mother and threatening to burn the house down. Albrecht II, 720 A.2d at 704-705; Answer at 6, citing T.T. 7/30/80. The police were called and, upon investigation, found evidence of a recent fight. Albrecht I, 511 A.2d at 768; Answer at 6, citing T.T. 7/31/80. When questioned, Petitioner's wife told the police that he had threatened to burn her dress. Albrecht I, 511 A.2d at 768. Petitioner eventually demanded that the police leave. Answer at 6, citing T.T. 7/31/80.

The Commonwealth also introduced evidence regarding prior threats by Petitioner to burn down his house or to severely injure his wife. Albrecht I, 511 A.2d at 768. Finally, the Commonwealth introduced evidence that Petitioner showed little remorse following the fire and the deaths of his wife, mother and daughter. Answer at 6, citing T.T. 7/29/80.

On June 23, 1986, the Pennsylvania Supreme Court affirmed Petitioner's conviction and death sentence on direct appeal. Albrecht I, 511 A.2d at 764. The United States Supreme Court declined to issue a writ of certiorari on March 30, 1987. Albrecht v. Pennsylvania, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

Thereafter, Petitioner filed a pro se petition for post-conviction relief ("PCRA petition"). Commonwealth v. Albrecht, B.C.C.C. No.1980-00408 (docket sheet). On July 13, 1991, Petitioner, by appointed counsel, filed an amended PCRA petition seeking discovery, funds for investigation and expert witnesses, and an evidentiary hearing. Commonwealth v. Albrecht, B.C.C.C. No.1980-00408 (docket sheet). Petitioner's request for funds was denied, and the Pennsylvania Supreme Court denied his Petition for Extraordinary Review. Petition for Writ of Habeas Corpus ("Petition") at ¶ 4. Petitioner's amended PCRA petition was dismissed on January 24, 1996. Petition at ¶ 8. He appealed, and the Pennsylvania Supreme Court affirmed on November 23, 1998. Albrecht II, 720 A.2d at 710.

On March 24, 1999, Petitioner filed the present Petition for Writ of Habeas Corpus, alleging fourteen grounds for relief.² On April 28, 1999, this Court issued an Order staying Petitioner's execution until further order of Court.

II. Waiver and Procedural Bar

The parties agree that Counts III, IV, XI, XII, and part of Count I³ were addressed by the Pennsylvania Supreme Court on the merits and thus not waived by Petitioner. However, Respondent avers that Petitioner's claims in Counts II, V, VI, VII, VIII, IX, and X were waived at the state level and are therefore procedurally barred from review by this Court. Because the Supreme Court of Pennsylvania changed its long-standing practice of "relaxed waiver" on Petitioner's PCRA appeal, this Petition presents unique issues of waiver and procedural bar.

Respondent argues that Counts II, V, VI, VII, VIII, IX, and X were reviewed by the Pennsylvania Supreme Court and were found to have been waived by the failure to raise them, either on direct appeal or on PCRA review.⁴ It is not clear the extent to which Counts XIII, XIV, and the remainder of Count I were presented to the Pennsylvania Supreme Court, but the Supreme Court did not consider them either on direct appeal or on PCRA review.

The Pennsylvania Supreme Court concluded that the group of claims asserted in Counts II, V, VI, VII, VIII, IX, and X had been waived. Normally, unless Petitioner could show cause for and prejudice from his default at the state level, federal habeas review would be precluded. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Doctor v. Walters, 96 F.3d 675 (3d Cir.1996). Petitioner urges the Court not to treat any of the claims he raised at any level of direct or PCRA appeal as defaulted. He notes that from 1978 until the decision in his PCRA appeal, the Supreme Court of Pennsylvania recognized a "duty to transcend procedural rules" in capital cases. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 181 (1978). This perceived duty led to the doctrine of "relaxed waiver" in death penalty cases, which amounted to a "practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the petition to meet the appropriate procedural criteria." Banks v. Horn, 126 F.3d 206, 214 (3d Cir.1997). The Court often heard arguments that had not been raised in any of the lower court proceedings, or that were raised at one level, but not at all required levels. Jacobs v. Horn, 129 F.Supp.2d 390, 398 (M.D.Pa.2001).

This practice changed in 1998, when the Supreme Court issued its decision in this case on Petitioner's PCRA appeal. Albrecht II, 720 A.2d at 700 ("While it has been our `practice' to decline to apply ordinary waiver principles in capital cases, we will no longer do so in PCRA appeals.") (internal citations omitted). The Supreme Court found that Petitioner had waived a number of potential arguments by not raising them earlier. These claims were not addressed on the merits,...