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ALBRECHT v. HORN

April 21, 2004.

ALFRED ALBRECHT, SR.
v.
MARTIN HORN, Commissioner, Pennsylvania Department of Corrections



The opinion of the court was delivered by: BRUCE KAUFFMAN, District Judge

MEMORANDUM AND ORDER

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.*fn1

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 Petioner's wife, mother and daughter, who had died from the combined effect of the heat, gases, and lack of oxygen. Commonwealth v. Albrecht, 511 A.2d 764, 766 (Pa. 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, 720 A.2d 693, 707 (Pa. 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 files, 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 (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.*fn2 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 I*fn3 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.*fn4 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 (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, 383 A.2d 174, 181 (Pa. 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, but instead were dismissed on procedural grounds. Accordingly, the first question before this Court is whether the Pennsylvania Supreme Court's decision to dismiss those claims renders them immune to examination on federal habeas corpus.

  Normally, out of concern for federalism and comity, a District Court will not hear argument on issues raised in a habeas petition that were procedurally defaulted at the state level. Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Bronshtein v. Horn, 2001 WL 767593, *4 (E.D. Pa. 2001). "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. . . . The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." Coleman, 501 U.S. at 732 (1991). This doctrine applies equally to procedural and substantive matters, meaning that it prevents federal courts from hearing the merits of cases where the petitioner failed to comply with a state procedural rule. Bronshtein, 2001 WL 767593 at *4. citing Wainwright v. Sykes, 433 U.S. 72, 82 (1977).

  Nonetheless, a habeas court will review questions of federal law decided by state courts so long as the state's decision does not rest on independent and adequate state grounds. Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001) ("A habeas court `will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment'"), quoting Coleman, 501 U.S. at 729. Here, the Pennsylvania Supreme Court rested its decisions upon Pennsylvania law. Albrecht II, 720 A.2d at 700, citing 42 Pa. Cons. Stat. § 9543(a)(3); see generally Szuchon, 273 F.3d at 325; Bronshtein, 2001 WL 767593, at *4. However, a careful review of the facts demonstrates that the procedural grounds upon which the Pennsylvania Supreme Court relied are not adequate. "A procedural rule is adequate only if it is firmly established, readily ascertainable, and regularly followed." Szuchon, 273 F.3d at 325. citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989). This standard is met where "(1) the state procedural rule speaks in unmistakable terms; (2) all appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor v. Walters, 96 F.3d at 683-84. See also Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989) (a state must demonstrate that in the "vast majority of cases" the rule is applied in a "consistent and regular" manner); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) (a state rule should be applied "evenhandedly to all similar claims"). The first two conditions are clearly met in this case. The state rule speaks in absolute terms and the Pennsylvania Supreme Court denied the petition on the grounds of procedural bar, which is considered a determination on the merits. See Harris v. Reed, 489 U.S. at 261-63.*fn5

  However, "[t]he Court of Appeals for the Third Circuit has [held] that the relevant moment for determining the adequacy of a state rule is `not . . . when the [Pennsylvania court] relied on it, but rather . . . the date of the waiver that allegedly occurred." Bronshtein, 2001 WL 767593 at *5, quoting Doctor, 96 F.3d at 684. See also Reynolds v. Ellingsworth, 843 F.2d 712, 725 (3d Cir. 1988) ("procedural default is determined by the waiver law in effect at the time of the asserted waiver") (internal quotations omitted). Thus, in cases where the waiver upon which the Pennsylvania Supreme Court based its decision predated the decision in Albrecht II, that Court's decision is not adequate to establish a procedural bar to federal examination of those claims on habeas review. Szuchon, 273 F.3d at 327 ("[S]uch a precedent setting use of a procedural bar indicates that the bar was not firmly established, readily ascertainable, and regularly followed at the time of the purported defaults."). Because Petitioner's was the first capital case since 1978 in which the Supreme Court enforced the PCRA waiver rules, it follows that the Supreme Court's consistent application of the PCRA waiver rules did not begin until after Petitioner had waived his arguments. Accordingly, this Court is not barred from considering Petitioner's claims on the merits despite the Pennsylvania Supreme Court's finding that they were procedurally waived.*fn6

  Thus, the Court will address Counts II, V, VI, VII, VIII, IX, and X on the merits. Because there is no decision of the Pennsylvania Supreme Court to which this court must defer for legal conclusions, the Court will review these claims de novo. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

  In Count I, Petitioner complains both that he is actually innocent and that the Pennsylvania courts wrongly denied him access to the funds necessary to hire an expert to prove this contention. The Commonwealth argues that the substantive aspect of Count I, that Petitioner is actually innocent, was waived, and that only Petitioner's claim that he should have been given funds to hire an expert was addressed on the merits by the Pennsylvania Supreme Court. However, the Court finds that no waiver occurred. Petitioner brought before the Pennsylvania Supreme Court the limited issue of whether he was improperly denied funds to retain a fire expert. Generally, this would operate as a waiver to the broader claim of actual innocence, as a Petitioner must fairly present his claims to the highest state court for its review. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). citing O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). However, the procedural bar will not be enforced where Petitioner can demonstrate cause and prejudice. Coleman, 501 U.S. at 750 ("In all cases in which a state prisoner has defaulted his federal claims in state court . . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice"). Here, Petitioner could not reasonably prove his case without expert testimony. Thus, by refusing Petitioner the funds to hire such an expert, the Pennsylvania courts prevented him from substantiating his claim that the Commonwealth's fire science evidence was erroneous. This Court is unwilling to enforce the "catch-22" of defaulting Petitioner for failing to make the case that an expert is needed while denying the funds necessary to hire one. Petitioner cannot reasonably be said to have waived his substantive argument simply because the state courts refused him the means of making it. Having eventually acquired the services of a competent expert and having demonstrated that fire science has indeed changed as he alleges, Petitioner will not be procedurally barred on this question. Accordingly, the Court will review Count I on the merits, de novo.*fn7 III. Legal Standard

 A. Federal Court Review of State Court Decisions

  "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

  In Williams v. Taylor, 529 U.S. 362, 404-05 (2000), the Supreme Court explained the two-part analysis set forth in 28 U.S.C. § 2254(d). Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to . . . clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). A state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Williams, 529 U.S. at 404-05.

  A state court decision involves an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle . . . to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407-08.*fn8

  The Court's role is not akin to that of an appellate court, reviewing errors. Bousely v. U.S., 523 U.S. 614, 621 (1998) ("[h]abeas review is an extraordinary remedy and `will not be allowed to do service for an appeal,'" quoting Reed v. Farley, 512 U.S. 339, 354 (1994) and Sunal v. Large, 332 U.S. 174, 178 (1947)); 39 Am.Jur.2d Habeas Corpus and Postconviction Remedies § 6. Likewise, the Court's purpose "is not to determine guilt or innocence of prisoner of crime charged." Id. This was made especially clear by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See Bell v. Cone, 535 U.S. 685, 693 (2002) ("[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law").

  Because this is not an appellate review of the Pennsylvania Supreme Court's decision, the Court must defer to the findings of fact reached by that Court whenever they are supported by probative evidence. Wright v. West, 505 U.S. 277, 302 (1992); Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Riley v. Taylor, 277 F.3d 261, 285 (3d Cir. 2001). This deference is not extended to questions of federal law or to mixed questions of federal law and fact. Thompson v. Keohane, 516 U.S. 99, 109-111 (1995). With respect to these latter questions, the Court may issue a writ of habeas corpus only if the Pennsylvania Supreme Court's decision is contrary to or an unreasonable application of federal law as determined by United States Supreme Court precedent. 28 U.S.C. § 2254(d); Mitchell v. Esparza, 124 S.Ct. 7, 10 (2003); Williams v. Taylor, 529 U.S. 362, 379 (2000); Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir. 2002).

 B. Ineffective Assistance of Counsel

  The standard for ineffective assistance claims was established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 689 (1984). Under Strickland, a Petitioner claiming ineffective assistance of counsel must demonstrate (1) that counsel's performance was deficient, i.e., falling below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his client. Id., 466 U.S. at 689-92. In examining the question of deficiency, "[j]udicial scrutiny of an attorney's performance must be highly deferential." Id., 466 U.S. at 689:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, 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.

  "[I]n considering claims of ineffective assistance of counsel, `[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.'" Burger v. Kemp, 483 U.S. 776, 794 (1987). citing U.S. v. Cronic, 466 U.S. 648 665, n.38 (1984). "To establish deficient performance, a petitioner must demonstrate that counsel's representation `fell below an objective standard for reasonableness.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003), quoting Strickland, 466 U.S. at 688. Reasonableness is considered within the context of "prevailing professional norms." Wiggins, 123 S.Ct. at 2536, quoting Strickland, 466 U.S. at 688.

  However, even constitutionally deficient performance by counsel does not mandate the issuance of a writ of habeas corpus unless prejudice is shown. In order to demonstrate prejudice, the defendant must also show that counsel's alleged errors "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. This in turn requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

  "It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied. In Strickland, the Supreme Court emphasized that a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Bruel v. Vaughn, 166 F.3d 163, 173 (3d Cir. 1999).

  The Pennsylvania Supreme Court's determination as to whether there was prejudice from counsel's deficiency is a decision on a mixed question of fact and law to which the Court must defer unless it is contrary to or an unreasonable application of United States Supreme Court precedent. 28 U.S.C. § 2254(d); Kane v. Kyler, 201 F. Supp.2d 392, 397, n. 9 (E.D. Pa. 2001).

 IV. Claims of Error During the Guilt Phase

  Petitioner's complaints can be divided into two categories: those alleging error at the guilt phase and those alleging error at the sentencing phase. The Court will address the former first, taking the Counts in order and then cumulatively. A. Count I

  In Count I, Petitioner argues that new developments in fire science prove his claim of actual innocence. Petition at ¶¶ 15-16. Particularly, he avers that the fire science evidence presented at his trial, introduced to show that arson could be the only cause of the fire, has since been shown to be inaccurate.

 Legal Standard

  It is axiomatic that the execution of an innocent person is constitutionally intolerable. According to Herrera v. Collins, 506 U.S. 390, 417 (1993):
[I]n a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.
Although Herrera does not specify the burden of proof that a petitioner must carry in order to meet the threshold showing, id. at 421 (O'Connor, J., concurring), it was suggested that "petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, `no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.'" Id. at 429 (White, J., concurring in the judgment) (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)). "If the petitioner asserts his actual innocence of the underlying crime, he must show `it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'" Calderon v. Thompson, 523 U.S. 538, 559 (1998), quoting Schlup v. Delo, 513 U.S. 298, 324 (1995); U.S. v. Garth, 188 F.3d 99 (3d Cir. 1999); Douglas v. Beard, 2002 WL 550474 (E.D. Pa. 2002); Woods v. Brennan, 2001 WL 1428343 (E.D. Pa. 2001). "In other words, the habeas petitioner must show that there probably would be a reasonable doubt." Herrera, 506 U.S. at 882 (Blackmun, J., dissenting). In order to meet this burden, the new evidence must foreclose the possibility of guilt, or at least of a guilty verdict. Woods, 2001 WL 1428343 at *3.
  Notably, the Court is not required to weigh the evidence:
[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Herrera, 506 U.S. at 401-02, quoting Jackson v. Virginia, 443 U.S. at 318-19.

  Moreover, "[this] exception is concerned with actual as compared to legal innocence." Woods, 2001 WL 1428343 at *2, quoting Calderon, 523 U.S. at 559. "`Actual innocence' means factual innocence, not mere legal insufficiency." Garth, 188 F.3d at 107. "Simply stated, `actual innocence' means that the person did not commit the crime.'" Id., citing Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir. 1992). The Supreme Court has often emphasized the narrow scope of the exception. See, e.g. Calderon, 523 U.S. at 559. "To be credible, a claim of actual innocence must be based on reliable evidence not presented at trial." Id. (internal quotations omitted).

 The New Evidence

  Petitioner has convincingly shown that the fire science evidence presented by the Commonwealth at his trial has since been discredited. At the evidentiary hearing before this Court on March 24, 2003, Petitioner called a qualified expert in fire science investigation. Transcript of Evidentiary Hearing, March 24, 2003 ("E.H.T. 3/24"), 25. He presented evidence that modern fire science considers the Commonwealth's trial evidence to be an unreliable basis upon which to conclude that a liquid accelerant necessarily was involved and that the fire could have been caused only by arson. In short, Petitioner's expert testified that the fire science evidence in this case was as consistent with an accidental fire — started in an upholstered chair in the living room as claimed by Petitioner — as with an accelerant fire intentionally started in either the kitchen or the living room. E.H.T. 3/24, 83. The ...


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