The opinion of the court was delivered by: BRUCE 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
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.
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
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
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
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,
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
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
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
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.'
"[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.
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.
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
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
(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
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
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 ...