On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 99-cv-01479). District Judge: Honorable Bruce W. Kauffman.
The opinion of the court was delivered by: Cowen, Circuit Judge
BEFORE: SLOVITER, AMBRO and COWEN, Circuit Judges.
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 (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 (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 (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 non-retroactivity 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 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.
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 Albrecht and his son were dead from a fire. Alfred Jr. escaped the fire by jumping out of a second story window. As described by the state Supreme Court, "soon after the firemen had the blaze under control, the Fire Marshall [sic] and state police roped off the property for investigation purposes. Included in the roped-off area was a driveway in which a car was parked approximately fifteen feet from the house with the keys in the ignition. This vehicle, along with another vehicle parked in the roped-off area, were later found to be registered" to Albrecht. Commw. v. Albrecht, 511 A.2d 764, 768 (Pa. 1986).
On May 2, 1979, the morning after the fire, Albrecht "allow[ed] investigators to search his premises for the purpose of determining the cause of the fire." Id. Later that day, Alfred Jr. "was questioned by the State Fire Marshall [sic] regarding the whereabouts of any gas cans on the premises." Id. Alfred Jr. showed the Marshal a can located in the garage that "obviously had not been used in some time." Id. The Marshal then asked Alfred Jr. "if he knew of any other gas cans," to which Alfred Jr. "replied, 'There's a hydraulic oil can in the trunk of my father's car.'" Id. At the Marshal's request, Alfred Jr. "removed the keys from the ignition and opened the trunk where the can was located." Id. This can, which usually held hydraulic oil for Albrecht's paving machine, had soot on it, and tested positive for gasoline. Importantly, a local gas station employee testified at the trial about Albrecht's attempt to purchase gasoline to put in a can the day before the fire.
To further prove that the fire was arson, the Commonwealth presented the testimony of the Fire Marshal and fire expert, Trooper William York. York testified that the fire started in the kitchen, and that it was started by igniting gasoline that had been poured on the floor. He believed this to be true
[b]ecause of the char patterns on the walls, the char patterns on the floor, the char patterns on the doorway between the kitchen and the livingroom [sic] . . . , the low burning . . . at the various locations in the room . . . , the terrific damage to the refrigerator, the meltdown of the inside of the refrigerator, the char on the underside of the table and the char on the underside of the chairs.
The defense presented the testimony of fire expert, Professor Paul Kacznarczik, whose theory was that the fire started in the living room accidentally as a result of a cigarette left to smolder in an upholstered chair for a lengthy period. Kacznarczik explained that the living room was "preheated for a considerable length of time. There was a lot of unburned gases in there from the pyrolyzed solid furniture such that when the air came in [from the front door being opened], these gases being above their auto-ignition temperature, they just exploded . . . ." Supp. App. 2761. He described the fire as a "flash over type of a fire." Supp. App. 2763.
Kacznarczik disputed Trooper York's conclusion about the use of a liquid accelerant, testifying that:
Well, as I said before, there was not a very big fire in the house. There was a lot of damage but it's relatively a small fire considering what could have happened. If gasoline were used, they would have lost the house. That's my opinion. If the fire had started in the kitchen, that fire load being all wood and it was [a] really roaring ongoing fire, they wouldn't have been able to blanket it down that quickly plus the fact that the chimney effect over by the stairway, that fire would have definitely been up to the second floor with that drafting up the stairway. The fire was not really that much of a rolling fire in the kitchen.
Alfred Jr. testified on behalf of his father that he heard a slat fall from his father's bed upstairs and thus believed that his father got out of bed after the fire started. However, his testimony also helped to establish the damaging fact that the can found in Albrecht's trunk immediately after the fire, which tested positive for gasoline, was normally used for hydraulic oil, and only a week before the fire, it had no gasoline in it. This contradicted Albrecht's testimony that gasoline had been in the hydraulic oil can (instead of hydraulic oil) for a month before the fire. Alfred Jr. also testified that, the day before the fire, his father hit his mother and threatened to burn her dress, and he found it necessary to summon the police.
Albrecht testified, and although he denied setting the fire, and denied trying to purchase gasoline the day before the fire, he admitted that he "smacked" Mrs. Albrecht in the face and "pulled some of her hair" when asked by the prosecutor if he was responsible for his wife's February 1979 injuries. Supp. App. 2558-60.
The jury convicted Albrecht on all counts after a trial that lasted nearly three weeks. A capital sentencing proceeding was conducted immediately following the verdict. The Commonwealth rested on its trial evidence at sentencing, while Albrecht presented the testimony of a psychiatric expert, Dr. Robert Sadoff. The jury found that the sole aggravating factor, Albrecht knowingly created a grave risk of death to another person in addition to the victim during the commission of the offense, 42 Pa. Cons. Stat. Ann. § 9711(d)(7), outweighed the mitigating factors established to the jury's satisfaction, which were three: no significant history of prior criminal convictions, 42 Pa. Cons. Stat. Ann. § 9711(e)(1), extreme mental or emotional disturbance, (e)(2), and "good worker," (e)(8) (catchall).
On direct appeal, the state Supreme Court affirmed the judgment of sentence. Albrecht, 511 A.2d 764. Albrecht's petition for writ of certiorari to the United States Supreme Court was denied on March 30, 1987. Albrecht filed a petition under the state post-conviction relief act, 42 Pa. Cons. Stat. Ann. §§ 9541-9546 (West 1998 and Supp. 2005), in the Bucks County Court of Common Pleas, which the trial court denied. The state Supreme Court affirmed. Commw. v. Albrecht, 720 A.2d 693 (Pa. 1998).
Albrecht filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in United States District Court for the Eastern District of Pennsylvania in 1999, raising the Mills claim, an innocence claim, and numerous other sentencing and guilt-phase claims. The Commonwealth submitted an answer, and with respect to the Mills claim it did not assert a non-retroactivity defense. The District Court conducted an evidentiary hearing, primarily on the innocence claim, at which Richard L. Custer, a forensic fire protection engineer, testified. The District Court granted Albrecht's habeas petition on the basis of Mills and vacated the death sentence. Albrecht's guilt-phase claims, and a newly added claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), all were denied with prejudice.*fn1 Because the Court found that the Mills claim required that Albrecht's sentence be vacated, it did not reach the other sentencing claims, which were denied as moot.*fn2
II. Jurisdiction & Standard of Review
The District Court granted a certificate of appealability on the Mills issue and all claims it had denied with prejudice. The Commonwealth has appealed the Mills determination, and Albrecht has cross-appealed, limiting his appeal to the following seven guilt-phase grounds for relief: (1) he is actually innocent and the presentation of inaccurate fire science expert testimony at his trial violated due process; (2) the prosecutor failed to disclose, or failed to timely disclose, exculpatory witness statements in violation of Brady and/or trial counsel was ineffective for failing to make effective use of timely disclosed statements; (3) trial counsel was ineffective for failing to request a limiting instruction with respect to the evidence of spousal abuse, and the absence of such an instruction violated due process; (4) admission of Mrs. Albrecht's statements to her physician, her attorney, and two other women, concerning the source of her physical injuries, violated the Confrontation Clause, and trial counsel was ineffective for failing to object to admission of the Kuhns' recollection of Alfred Jr.'s statement; (5) appellate counsel was ineffective for failing to challenge the trial court's ban on attorney-client consultation just prior to and during cross-examination; and (6) the cumulative prejudice from the many errors denied him his constitutional right to due process.*fn3 At oral argument, Albrecht's counsel confined his remarks to the most substantial and serious issues presented by this appeal: the Mills and innocence issues, and the claim that trial counsel was ineffective for failing to request a limiting instruction with respect to the evidence of spousal abuse.
We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We conduct a plenary review of the District Court's legal conclusions and review its factual conclusions for clear error. Whitney v. Horn, 280 F.3d 240, 249 (3d Cir. 2002). Our review is also plenary as to the District Court's determinations regarding exhaustion and procedural default, and non-retroactivity.
The District Court granted relief on Albrecht's claim that the sentencing instructions given to the jury were defective under Mills v. Maryland, 486 U.S. 367. The Court concluded that our opinion in Banks v. Horn, 271 F.3d 527 (3d Cir. 2001), rev'd on other grounds, 536 U.S. 266 (2002), compelled the conclusion that the instructions given in Albrecht's case were unconstitutionally ambiguous with respect to whether mitigating factors must be found unanimously. The District Court reasoned that the jury instruction at Albrecht's trial emphasized jury unanimity in close proximity to the mitigating circumstances clause. In addition, the instructions emphasized the difference between the relative burdens of proof for showing aggravating circumstances and mitigating circumstances, but did not mention any differences in the unanimity requirements. Identical language was used in the Banks case, in which we found that these two elements were likely to create confusion in a juror's mind.
The Commonwealth has appealed this decision. Because the Mills claim has unquestionable merit, we will discuss it in detail. Ultimately, however, and even though Albrecht can successfully overcome all of the other habeas procedural hurdles, we are obliged to sustain the Commonwealth's appeal because "Teague's non-retroactivity principle acts as a limitation," Banks v. Beard, 542 U.S. at 412, on our power to grant habeas corpus relief to a state prisoner such as Albrecht whose conviction became final before Mills was decided.
1. Exhaustion & Procedural Default
The Mills claim falls into a group of claims raised by Albrecht's initial state post-conviction counsel but abandoned by replacement post-conviction counsel prior to the trial court's decision denying post-conviction relief. The initial public defender appointed to the case filed an amended post-conviction petition, raising seventy-two claims of error. He withdrew, and replacement post-conviction counsel explicitly waived all but three issues, including the Mills issue. Albrecht, 720 A.2d at 698. On appeal to the state Supreme Court, new appellate post-conviction counsel, the Center for Legal Education, Advocacy and Defense Assistance, raised the Mills issue, and, anticipating a waiver problem, argued that replacement post-conviction counsel was ineffective for abandoning the claim at the trial court level.
The state Supreme Court would not consider the Mills claim on the merits, holding for the first time that Pennsylvania's "relaxed" waiver doctrine no longer applied in capital post-conviction appeals. Albrecht, 720 A.2d at 700. Finding that there were adequate safeguards to ensure the fairness of verdicts in capital cases, and that the relaxed waiver doctrine impeded the goal of finality of judgments, the Court held that: "Henceforth, a PCRA petitioner's waiver will only be excused upon a demonstration of ineffectiveness of counsel in waiving the issue." Id.
With respect to replacement post-conviction counsel's having abandoned the Mills claim, the state Supreme Court held that the relief available "to an appellant for a claim that PCRA counsel's judgment was exercised in a legally ineffective manner is an evaluation of the claims prior counsel has foregone for a determination of ineffectiveness." Id. at 701 (citing Commw. v. Travaglia, 661 A.2d 352, 367-68 (Pa. 1995)). The Court would grant relief only if Albrecht could show that "counsel's conduct, by action or omission, was of questionable legal soundness; that the conduct complained of had no reasonable basis designed to effectuate [his] client's interest; and that counsel's conduct had an adverse effect on the outcome of the proceedings." Id. (quoting Commw. v. Clark, 710 A.2d 31, 35 (Pa. 1998)). The Court did a prejudice analysis of the Mills issue, and concluded that replacement post-conviction counsel's conduct in abandoning it in the trial court did not constitute ineffective assistance. Id. at 706.
Thus, there was a state procedural default with respect to the Mills issue insofar as it was abandoned at the trial court level, O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (habeas petitioner must show that he fairly presented federal claim at each level of state court system), and the state Supreme Court held that it was waived. However, the claim is not barred due to a procedural default, Coleman v. Thompson, 501 U.S. 722, 752-54 (1991), because a defaulted claim may be reviewed in federal habeas upon a showing that the procedural rule applied was not "independent" and "adequate." See Harris v. Reed, 489 U.S. 255, 260-61 (1989).
A state rule provides an independent and adequate basis for precluding federal review of a claim if the "rule speaks in unmistakable terms[,] all state appellate courts refused to review the petitioner's claims on the merits[, and] the state courts' refusal [was] consistent with other decisions," that is, the procedural rule was "consistently and regularly applied." Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). Whether the rule was firmly established and regularly applied is determined as of the date the default occurred, and not as of the date the state court relied on it, id. at 684, because a petitioner is entitled to notice of how to present a claim in state court, Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
The waiver rule applied for the first time on November 23, 1998 in Commonwealth v. Albrecht, 720 A.2d 693, is not independent and adequate as to Albrecht. Harris, 489 U.S. at 260-61. Albrecht committed his default either when he failed to raise the Mills issue on direct appeal, or, at the latest, when replacement post-conviction counsel abandoned the issue, which occurred some time before the post-conviction petition was denied on January 24, 1996. Albrecht, 720 F.3d at 698. Either way, the default occurred before the state Supreme Court held on November 23, 1998 in his case that the relaxed waiver doctrine no longer applied in capital post-conviction appeals.
At the time of Albrecht's direct appeal, and at the time replacement post-conviction counsel abandoned the Mills issue, the state Supreme Court was still applying the relaxed waiver rule. The "unforgiving" waiver rule was not "consistently and regularly applied" at the time of Albrecht's default. Doctor, 96 F.3d at 683-84. Cf. Bronshtein v. Horn, 404 F.3d 700, 708-09 (3d Cir. 2005), cert. denied, 126 S.Ct. 1320 (2006) (Pennsylvania post-conviction statute of limitations not firmly established nor regularly applied until November 23, 1998, at the earliest, when Commonwealth v. Albrecht, 720 A.2d 693 (1998), was decided).*fn4 Accordingly, neither the exhaustion nor procedural default doctrines bars consideration of the Mills claim.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits federal habeas relief on any claim "adjudicated on the merits in state court proceedings," unless that adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). However, the "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to grant the writ if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of a petitioner's case, or if it unreasonably refuses to extend that principle to a new context where it should apply. Williams v. Taylor, 529 U.S. 362, 407-08 (2000); see also Bell v. Cone, 535 U.S. 685, 694 (2002). A federal habeas court may not issue the writ simply because it concludes in its independent judgment that the state court applied clearly established law incorrectly. Williams, 529 U.S. at 410. "Rather, that application must also be unreasonable." Id.
The state Supreme Court did not, of course, address the Mills issue on the merits in the ordinary sense; instead, it examined the merits in the context of the prejudice prong of an ineffective assistance of post-conviction counsel claim, Albrecht, 720 A.2d at 701 n.8. Albrecht does not argue that this issue may be reviewed de novo under these circumstances, nor would such an argument have merit. The state Supreme Court identified the correct governing legal principle, id. at 706, and then purported to apply it, which constitutes an adjudication on the merits sufficient for purposes of the statute. Cf. Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (deference under AEDPA does not even require citation to Supreme Court cases), cert. denied, 543 U.S. 1093 (2005). We turn then to whether the state courts unreasonably applied Mills.
3. The Mills Standard & Merits Analysis
In addition to establishing that Albrecht had no significant criminal history and was a worker of good character, the defense established through the testimony of a psychiatrist that Albrecht was under extreme mental or emotional disturbance at the time of the offense. In Mills v. Maryland, 486 U.S. 367, the Supreme Court vacated a death sentence after concluding that there was a "substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Id. at 384. The Court held that the Constitution prohibits states from requiring jurors to find mitigating factors unanimously. See McKoy v. North Carolina, 494 U.S. 433, 444 (1990); Mills, 486 U.S. at 374-75.
Two years later, the Supreme Court decided Boyde v. California, 494 U.S. 370 (1990), and established a test for reviewing an ambiguous jury instruction. Id. at 380. "[A] petitioner's Mills claim alleging juror confusion as to unanimity must be examined under Boyde to determine whether there is a reasonable likelihood (as opposed to merely a possibility) that jurors have applied the challenged instruction in a way that prevents the consideration of constitutionally relevant mitigating evidence." Hackett v. Price, 381 F.3d 281, 291 (3d Cir. 2004), cert. denied, 544 U.S. 1062 (2005).
We examined instructions in Frey v. Fulcomer, 132 F.3d 916, 923-24 (3d Cir. 1997), a pre-AEDPA case, and Banks, 271 F.3d at 547-48, an AEDPA case, and found Mills violations in both. Without question, Frey and Banks compel a conclusion that the instructions given in Albrecht's case were constitutionally infirm.*fn5 A side-by-side comparison of the ...