The opinion of the court was delivered by: Kauffman, J.
Now before the Court for the second time 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.
I. BACKGROUND AND PROCEDURAL HISTORY
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.*fn1 Later on the same day, following a sentencing hearing, the jury recommended a sentence of death. Trial Tr. 8/8/80, pp. 82--83. On May 2, 1983, in accordance with the jury's recommendation, Petitioner was sentenced to death.
On June 23, 1986, the Pennsylvania Supreme Court affirmed Petitioner's conviction and death sentence on direct appeal. Commonwealth v. Albrecht ("Albrecht I"), 511 A.2d 764 (Pa. 1986). 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 state post-conviction relief pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA") and subsequently filed an amended PCRA petition with the assistance of counsel ("Amended PCRA Petition"). Petitioner soon acquired new counsel, who entered a filing on his behalf that expressly waived all but three claims in the Amended PCRA Petition. See Commonwealth v. Albrecht ("Albrecht II"), 720 A.2d 693, 698 (Pa. 1998). The lower PCRA court dismissed the Amended PCRA Petition on January 24, 1996. See id. Petitioner appealed with the assistance of another new counsel (his third on PCRA review), and the Pennsylvania Supreme Court affirmed on November 23, 1998. See id. at 698, 710.
On March 24, 1999, Petitioner filed the instant Petition for Writ of Habeas Corpus, alleging fourteen grounds for relief. On April 28, 1999, the Court issued an Order staying Petitioner's execution until further order of Court. Following briefing and an evidentiary hearing, the Court ruled on the Petition on April 21, 2004. See Albrecht v. Horn ("Albrecht III"), 314 F. Supp. 2d 451 (E.D. Pa. 2004). The Court first denied all of Petitioner's claims concerning the guilt phase of his trial, including his claim of actual innocence. See id. at 463--82. The Court then granted relief based upon Count XI of the Petition, in which Petitioner claimed that the sentencing-phase jury instructions were ambiguous as to whether mitigating factors must be found unanimously, in violation of Mills v. Maryland, 486 U.S. 367 (1988).*fn2 See Albrecht III, 314 F. Supp. 2d at 484--85; see also Mills, 486 U.S. at 384 (holding unconstitutional Maryland's sentencing-phase jury instructions where the instructions created "a substantial probability that reasonable jurors . . . well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular [mitigating] circumstance").
The Court applied Mills retroactively on collateral review based upon the Third Circuit's decision in Banks v. Horn, 316 F.3d 228, 235 (3d Cir. 2003), which held that Mills did not introduce a "new rule" for purposes of the retroactivity analysis required by Teague v. Lane, 489 U.S. 288 (1989).*fn3 See Albrecht III, 314 F. Supp. 2d at 484--85. On June 24, 2004, only a few months after this Court issued its Albrecht III decision, the United States Supreme Court reversed the Third Circuit's retroactivity analysis in Banks by a five-to-four decision in Beard v. Banks, 524 U.S. 406 (2004). The five-justice majority held that because it is "clear that reasonable jurists could have differed as to whether" prior Supreme Court precedent compelled the Mills decision, Mills constituted a new rule, and could not be applied retroactively on collateral review. Id. at 414, 416--20.
The Third Circuit issued its opinion in the instant matter on April 19, 2007, and, on the basis of the Supreme Court's Banks decision, vacated this Court's grant of relief on Petitioner's Mills claim. See Albrecht v. Horn ("Albrecht IV"), 485 F.3d 103, 109 (3d Cir. 2007). The Third Circuit affirmed this Court's judgment in all other respects and remanded with instructions to deny relief on the Mills claim and to reach the remaining sentencing-phase issues.*fn4 See id.
Petitioner again petitioned the U.S. Supreme Court for writ of certiorari, which was denied on January 7, 2008. See Albrecht v. Beard, 128 S.Ct. 890 (2008).
In Count XIII of the Petition, Petitioner contends that his trial and appellate counsel were ineffective for failing to present and properly litigate all of the issues raised in the Petition.*fn5 See Pet. ¶¶ 234--237. In his supplemental brief, Petitioner asserts specifically that his counsel at trial and on direct appeal were ineffective for failing to raise the mitigation unanimity issue.*fn6 See Pet. Supp. Mem. of Law Following Remand ("Pet. Supp. Mem.") 38--46; see also Resp. Supp. Mem. of Law Following Remand ("Resp. Supp. Mem.") 9--11. For the reasons that follow, the Court will grant relief on Count XIII based on Petitioner's assertion that his counsel on direct appeal was ineffective for failing to raise the mitigation unanimity issue.*fn7 Because the Court will grant relief on this ground, it will not reach the remaining sentencing-phase issues in Count XIII, including the contention that trial counsel was ineffective for failing to raise the mitigation unanimity issue, nor will the Court reach any of Petitioner's other outstanding claims for relief.
Procedural default is a threshold issue that must be considered before any review of the merits of a claim. See, e.g., Nobles v. Johnson, 127 F.3d 409, 419--20 (5th Cir. 1997); Smith v. Dixon, 14 F.3d 956, 962 (4th Cir. 1994). Respondent argues that because Petitioner's claims are procedurally defaulted, the Court is barred from proceeding. See Resp. Supp. Mem. 1--3. If a state's procedural rules bar a petitioner from seeking further relief in the state courts, this absence of an available state corrective process is known as a procedural default. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Claims deemed procedurally defaulted typically may not be considered by federal courts. See id. However, if the state procedural rule barring a claim was not "independent" and "adequate," the federal court may proceed to consider the merits of the claim. See Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)).*fn8
In the instant matter, the Pennsylvania Supreme Court in Albrecht II held that most of Petitioner's claims were waived at the PCRA appellate stage as a result of his trial-stage PCRA counsel's decision to waive all but three claims in the Amended PCRA Petition.*fn9 See Albrecht II, 720 A.2d at 698--701. This Court held that it must reach the waived claims on the merits despite Petitioner's procedural default because the state waiver rule was not adequate and independent at the time it was applied to Petitioner.*fn10 See Albrecht III, 314 F. Supp. 2d at 458--61. The Third Circuit affirmed that holding. See Albrecht IV, 485 F.3d at 114--16, 136--37.
Respondent specifically contends that Petitioner is procedurally barred from review by this Court because he failed to present the state courts a fair opportunity to address a number of the claims raised in the Petition. See Resp. Supp. Mem. 1--3. If Respondent is correct as to the instant contention that appellate counsel was ineffective for failing to raise the mitigation unanimity issue, the Court would be unable to reach the claim's merits.*fn11 The Pennsylvania Supreme Court did not explicitly refer in its PCRA opinion to the instant contention. Therefore, the Court must determine whether the instant contention was presented to but implicitly deemed waived by the Pennsylvania Supreme Court, in which ...