Siehl v. Grace

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

3-25-2009

Siehl v. Grace

Precedential or Non-Precedential: Precedential

Docket No. 07-1568

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PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 07-1568

KEVIN C. SIEHL,

Appellant

v.

JAMES L. GRACE, Superintendent;

DISTRICT ATTORNEY OF CAMBRIA COUNTY,

David Tulowitzki; ATTORNEY GENERAL OF

THE STATE OF PENNSYLVANIA,

Thomas W. Corbett, Jr.

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civil Action No. 05-cv-00339J)

District Judge: Hon. Kim R. Gibson

Argued February 3, 2009

BEFORE: McKEE and STAPLETON, Circuit Judges,

and IRENAS,* District Judge

(Opinion Filed: March 25, 2009)

Lisa B. Freeland (Argued)

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Attorney for Appellant

David J. Kaltenbaugh (Argued)

Office of the District Attorney

200 South Center Street

Cambria County Court House

Ebensburg, PA 15931

Attorney for Appellees

OPINION OF THE COURT

*Hon. Joseph E. Irenas, Senior District Judge for the District

of New Jersey, sitting by designation.

2

STAPLETON, Circuit Judge:

Appellant Kevin C. Siehl was convicted of first degree

murder after a jury trial in a Pennsylvania state court. Following

unsuccessful direct appeal and post-conviction relief

proceedings, Siehl instituted this habeas corpus proceeding in

the District Court alleging ineffective assistance of trial and

appellate counsel. The District Court denied relief, and this

appeal followed. We will reverse and remand to the District

Court for an evidentiary hearing.

I.

On July 14, 1991, Christine Siehl’s landlord received

complaints that water was running out of the apartment building.

He entered Ms. Siehl’s apartment and found her body in the

bathtub with the shower running. She had multiple stab wounds

which resulted in her death. The time of death was estimated to

be between the hours of 11:00 p.m. on July 12 and 3:00 or 4:00

a.m. on July 13. Based on testimony from the mother of a

neighbor who heard commotion in the apartment at

approximately 1:30 a.m. on July 13, the Commonwealth argued

that she was killed at approximately that time.

The bathroom contained indications of a struggle

between the victim and the murderer, including blood on the

walls and floor, broken mirror pieces, and scattered cat litter.

There was no sign of forced entry. Potential suspects in the

criminal investigation were: (1) Kevin Siehl, who was married

to but living separately from the victim; (2) Frank Wills, with

whom the victim had been romantically involved while married

3

to Siehl; and (3) Robert Prebehalla, who told people of his

hatred for the victim. According to Sergeant Angelo

Cancelliere, Siehl became the prime suspect because a

fingerprint on the showerhead and a blood sample from the

scene were determined to match Siehl’s.

Siehl was arrested and charged with first degree murder,

third degree murder and involuntary manslaughter. Public

defenders David Weaver and Linda Fleming were appointed by

the trial court to represent Siehl. They promptly persuaded the

court to appoint a forensic expert to assist them in the defense

of their client. For reasons that will hereafter become clear, we

will refer to their chosen expert as “John Smith.” Smith

promptly provided counsel with a page and a half

“PRELIMINARY ANALYSIS,” “the purpose [of which was]

to give[] an explanation . . . as to how this crime was committed

and to explain certain items of physical evidence.” App. at 73.

He determined, after reviewing a photograph of the latent print

and the fingerprint card of Siehl, that the latent print from the

showerhead matched Siehl’s. Smith’s full discussion of the

print was as follows:

This print does match the rolled inked impression

on the finger print card bearing the name of Kevin

Charles Siehl. See lift photograph and finger

print card. It can be stated however, that the print

is an exceptionally clear print and not smudged,

as one would expect to find in a homicide

scenario such as this one. The other thing about

this print that is unusual, is that microscopic

examination of the shower head, where the print

4

was developed, shows no trace evidence of blood

which one would expect to find due to the nature

of the crime. It also can be stated that no time

frame can be placed on this print as to when it

was made. The alleged suspect, Kevin Siehl, had

access to this apartment prior to the commission

of the crime, therefore, the print could have been

made well before the homicide occurred.

App. at 75. Smith’s “PRELIMINARY ANALYSIS” did not

explain the basis for his preliminary conclusion that the print

belonged to Siehl. While it commented on three of the

bloodstain evidence items out of the eighty items tested, he did

not test the blood evidence and made no findings with respect to

the bloodstain which the Commonwealth would maintain was

consistent with Siehl’s blood. Smith did not prepare any other

reports, nor did he testify at trial.

During opening statements, the Commonwealth

emphasized that the fingerprint was Siehl’s, was a direct piece

of evidence that tied Siehl to the murder scene, and was in a

position which would indicate that Siehl was outside the shower

when the fingerprint was made. The prosecutor also told the

jury to pay attention to testimony regarding blood evidence

consistent with Siehl’s blood type found on the bathroom

doorframe.

At trial, Trooper Merril Brant testified that the latent

fingerprint on the showerhead matched that of Siehl, and that

the position of the print led him to conclude that it was not left

by someone showering, but rather was left by the murderer who

5

was standing outside the tub and directed the shower onto Ms.

Siehl’s body. Brant used the showerhead to demonstrate this

theory for the jury. Brant further testified that the print had not

yet started to deteriorate, and that therefore it must have been

left within 24-36 hours of when the victim was discovered.

Prior to this testimony, the jury was read a stipulation of the

parties that the fingerprint found on the showerhead belonged to

Siehl. Defense counsel did not present expert testimony to

counter Brant’s testimony regarding the timing and position of

the fingerprint.

At trial, Scott Ermlick, the state crime lab supervisor,

testified as a serological expert. Ermlick testified that one of the

twelve bloodstains recovered from the bathroom was consistent

with Siehl’s blood group markers, and that none of the blood

was consistent with those of Wills or Prebehalla. The stain,

which he testified was consistent with Siehl’s blood group

markers, was one of two small spatters found side-by-side on the

bathroom doorframe. He identified the other spatter as

consistent with Ms. Siehl’s blood group markers. Because the

sample was small, no DNA or follow-up testing could be

performed. Defense counsel did not present expert testimony to

counter Ermlick’s findings.

Siehl presented an alibi defense. His father and brother,

with whom he was living at the time, and his parents’ neighbor

all testified. They stated that Ms. Siehl dropped Siehl off at his

parents’ home at approximately 1:30 a.m. on July 13, and then

drove away while Siehl remained at his parents’ home for the

remainder of the evening.

6

Siehl was convicted of first degree murder. The jury

unanimously decided that a life sentence would be imposed.

Siehl then retained new counsel, Terry Despoy, who represented

him on direct appeal. The Pennsylvania Superior Court affirmed

the judgment of conviction. A petition for allowance of appeal

to the Pennsylvania Supreme Court was denied.

Siehl next filed a petition for post-conviction relief in the

Court of Common Pleas. With new counsel in that proceeding,

he raised and sought an evidentiary hearing on the issues of (1)

whether trial counsel were ineffective for stipulating that the

fingerprint belonged to Siehl and for failing to secure the

assistance of a competent forensic expert at trial, and (2)

whether appellate counsel was ineffective for not raising those

issues on appeal. In response to the Commonwealth’s argument

that Siehl had waived his claims of ineffective assistance of trial

counsel by failing to raise them on direct appeal, Siehl insisted

that this was a situation involving ineffective assistance of

appellate counsel as well and, thus, “layered claims of

ineffectiveness.” He argued that under Commonwealth v.

Sawyer, 512 A.2d 1238 (Pa. Super. Ct. 1986), he was entitled to

an evidentiary hearing on the ineffectiveness of both trial and

appellate counsel. The Court rejected this argument and

concluded that Siehl’s claims of ineffectiveness of trial counsel

had been waived by his failure to raise them on direct appeal.

The Court agreed to an evidentiary hearing limited to only two

issues: one not here relevant and the competence of Smith.

At the first evidentiary hearing, trial attorney Fleming

testified only on direct examination by Siehl. She testified that

she did not recall whether Smith tested either the blood or the

7

fingerprint evidence. She also testified that Smith did not

prepare a report for counsel prior to trial, and that she did not

recall whether Smith was an expert in serology. Fleming’s

direct testimony was cut off by the Court because it concluded

that counsel was addressing the prohibited ineffective assistance

of counsel issues. Accordingly, the Commonwealth was not

afforded an opportunity to cross-examine her. A second

evidentiary hearing was held at which the Court again cut short

Siehl’s evidence. It declined to hear any testimony from

Professor Herbert Leon MacDonell, a highly credentialed

forensic expert.1 Siehl was, however, permitted to make an

offer of proof. The proffer summarized MacDonell’s affidavit

in which he opined that: (1) the developed latent fingerprint

from the showerhead did not come from Siehl; (2) Brant’s

1

Professor MacDonell has taught college level criminalistics

– i.e., “application of science to the investigation of crime which

is primarily concerned with the examination of physical

evidence and how it can be used to reconstruct prior events” –

since 1960. App. at 41. He is a Fellow in the American

Academy of Forensic Science and a past chairman of the

Criminalistics Section of that Society. He has testified as an

expert in forensic disciplines in thirty-five states and five

foreign countries. He was a member of a select committee of

the International Association for Identification which produced

a report promulgating minimum requirements for “friction ridge

identification,” a report that has been accepted by every major

identification bureau in the world. App. at 43. Professor

MacDonell is certified by the International Association of

Identification as a Senior Crime Scene Analyst.

8

fingerprint deterioration theory was incorrect, and it was

impossible to determine how long the print had been on the

showerhead; (3) the two small blood spatter stains came from

the same source and the probability of the two having come

from two different individuals was “so unlikely that for all intent

and purpose it is an impossibility” (App. at 52); and (4) Smith

was not qualified in any field of forensic science, including

fingerprint identification and bloodstain pattern interpretation,

to testify as an expert.2 The Court denied relief and Siehl filed

an appeal raising the same issues of ineffective assistance of

trial and appellate counsel. The Superior Court of Pennsylvania

affirmed.

The Superior Court addressed the merits of Siehl’s

ineffective assistance of trial counsel claims. It recognized the

validity of the concept of “layered” ineffective assistance of

2

Professor MacDonell’s affidavit indicates that Smith had

been a student of his and that Professor MacDonell was familiar

with his work in this and other cases. His critique of Smith’s

work went far beyond disagreement with Smith’s analysis and

conclusions. He pointed out, for example, that Smith’s

curriculum vitae described his “current occupation” as a

“Forensic Reconstruction Consultant” and indicated that this

title is “not recognized as a forensic discipline by any forensic

organization” of which Professor MacDonell was aware. App.

at 46. Professor MacDonell’s affidavit also expressed his

opinion that Smith had “repeatedly overstated his qualifications

to such a degree that his errors are far beyond simple

carelessness.” App. at 50.

9

counsel claims, but it had no occasion to express an opinion on

the waiver issue.3 It recognized that the controlling principles

were those endorsed by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). With respect to the claim

that counsel was ineffective for stipulating that the fingerprint

on the showerhead belonged to Siehl, the Superior Court

assumed arguendo that the print was not Siehl’s but concluded

that counsel had a reasonable basis for making the stipulation

and that Siehl had failed to establish prejudice. Specifically, the

Court found:

3

Given its conclusion that there was no ineffective assistance

of trial counsel, the Superior Court impliedly determined that

there was no ineffective assistance of appellate counsel for

failing to contend the contrary. The respondent has not argued

before us that Siehl’s ineffective assistance of trial counsel

issues have been conclusively determined to have been waived.

There appears to be no dispute that these ineffective assistance

of trial counsel claims were not raised on Siehl’s behalf on

direct appeal. However, if it is ultimately determined that

Siehl’s ineffective assistance of trial counsel claims have merit,

it is likely that a similar determination will be made with respect

to the claims regarding appellate counsel, in which event there

would be no waiver under Pennsylvania’s “layering of

ineffective assistance” line of cases, see Commonwealth v.

Duffey, 855 A.2d 764, 768 (Pa. 2004), and no procedural default

by virtue of the doctrine of cause and prejudice. See Murray v.

Carrier, 477 U.S. 478, 488-89 (1986) (ineffective assistance of

counsel is a cause for procedural default).

10

[T]he record reflects that counsel had a

reasonable basis for making the stipulation. The

record reflects that Appellant did not deny, at that

time, that the fingerprint was his. Thus, trial

counsel had a reasonable basis for making this

stipulation as part of his strategy.

[Moreover] we observe that no prejudice

has been demonstrated. The murder victim was

Appellant’s ex-wife or estranged wife, in whose

apartment Appellant often visited. A police

officer testified that Appellant told the police that

‘he showered there [at Christine’s apartment]

many times and that his fingerprints would be all

over the place.’ . . . Thus, even before his arrest,

Appellant had explained the presence of his

fingerprints in the victim’s apartment. Appellant

fails to establish prejudice due to the stipulation

because, if trial counsel had not made the

stipulation, there is no probability that the

outcome of the trial would have been different.

App. at 24-25 (citation omitted).

With respect to the claim that counsel was ineffective

because they did not obtain a qualified forensic expert to assist

them at trial, the Court determined only that Siehl could not

demonstrate prejudice:

The record is clear that Appellant was a frequent

visitor to the apartment and that his fingerprints

11

were throughout the apartment. Appellant fails to

demonstrate that a challenge to the fingerprint

evidence or the retention of a qualified forensic

expert would have affected the outcome of the

trial.

App. at 25.

Thereafter, Siehl instituted this habeas proceeding in the

District Court. The Magistrate Judge’s Report and

Recommendation addressed the merits of Siehl’s ineffective

assistance of trial counsel claims and recommended denial of the

petition and of a certificate of appealability because Siehl failed

to show that the state court’s adjudication of the claims was

contrary to or an unreasonable application of clearly established

federal law. The District Court adopted the Report and

Recommendation, and this appeal followed.

This Court granted the following certificate of

appealability:

The application for a certificate of appealability is

granted as to these issues: whether appellant’s

Sixth Amendment right to effective assistance of

counsel was violated (1) where trial counsel

stipulated that the fingerprint on the showerhead

belonged to the appellant without having the

assistance of a qualified fingerprint expert to

examine the fingerprint and render a competent

scientific opinion; (2) where he did not have

qualified forensic experts in fingerprint

12

identification and bloodstain pattern analysis to

assist him; and (3) where post-trial and appellate

counsel failed to raise the issue of trial counsel’s

ineffectiveness for stipulating to the fingerprint

without having the assistance of a qualified

fingerprint expert to examine the finger print and

render a competent scientific opinion. The parties

also should address whether the Pennsylvania

Superior Court’s determination of these Sixth

Amendment issues was based on an unreasonable

application of Strickland v. Washington, 466 U.S.

668 (1984), or on an unreasonable determination

of the facts, see 28 U.S.C. § 2254(d)(1), (2), and

whether appellant is entitled to a hearing in the

district court on these issues, Campbell v.

Vaughn, 209 F.3d 280, 287 (3d Cir. 2000).

App. at 98-99.

II.

Under the Anti-Terrorism and Effective Death Penalty

Act (“AEDPA”), habeas relief on behalf of a person in custody

pursuant to a judgment of a state court cannot be granted with

respect to any claim that was adjudicated on the merits in state

court proceedings unless the decision is contrary to, or involves

an unreasonable application of, clearly established federal law,

or is 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). AEDPA thus limits a federal court’s authority

to grant habeas relief when a state court has previously

13

considered and rejected the federal claim on the merits.

“Under the ‘unreasonable application’ clause [of §

2254(d)], a federal habeas court may grant the writ if the state

court identifies the correct legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Jermyn v. Horn, 266 F.3d 257,

281-82 (3d Cir. 2001) (quoting Williams v. Taylor, 529 U.S.

362, 407 (2000)). In determining whether the state court

unreasonably applied Supreme Court precedent, the question is

whether the state court’s application of federal law was

objectively unreasonable, not whether the application was, in the

judgment of the federal habeas court, erroneous or incorrect. Id.

at 282.

“Sixth Amendment claims of ineffective assistance of

counsel are governed by Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which qualifies as

clearly established Federal law, as determined by the Supreme

Court of the United States.” Taylor v. Horn, 504 F.3d 416, 430

(3d Cir. 2007) (internal quotation marks and citation omitted).

According to Strickland, a court deciding an ineffectiveness

claim must “determine whether, in light of all the circumstances,

the identified acts or omissions [of counsel] were outside the

wide range of professionally competent assistance.” 466 U.S.

at 690. Since Strickland, the United States Supreme Court and

this Court have emphasized the necessity of assessing an

ineffectiveness claim in light of all the circumstances. See

Taylor, 504 F.3d at 430; Jacobs v. Horn, 395 F.3d 92, 107 (3d

Cir. 2005) (citing Supreme Court and Third Circuit cases).

14

Under Strickland, a petitioner must also show that

counsel’s deficient performance prejudiced the defense. See

Taylor, 504 F.3d at 430. This requires a defendant to show

“‘that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.’” Id. (quoting Strickland, 466 U.S. at 694).

III.

We must now determine (1) whether the Pennsylvania

Superior Court’s rejection of Siehl’s ineffective assistance of

trial counsel claims involved an unreasonable application of

Strickland, and (2) if so, whether Siehl’s proffer of evidence,

including the MacDonell report, together with the other

evidence of record, entitles Siehl to an evidentiary hearing on

those claims in the District Court.

A. The Superior Court Decision

The Superior Court found as a fact that, at the time

counsel stipulated regarding the fingerprint on the showerhead,

Siehl “did not deny . . . that the fingerprint was his.” App. at 24.

We, of course, must and do accept that finding. In the Court’s

view, this meant that counsel had a “reasonable basis” for

making the stipulation. Id. at 24. The reasonableness of this

view, and the Court’s further view that there was no prejudice

from the stipulation and from the failure to secure an expert to

assist at trial, depends on the soundness of a single proposition

– Siehl’s failure to challenge Brant’s identification of the

fingerprint cannot have prejudiced Siehl because he “was a

frequent visitor to the apartment and . . . his fingerprints were

15

throughout the apartment.” App. at 25. This foundational

proposition was not an objectively reasonable one, however,

because it wholly ignored the core of the Commonwealth’s case

which trial counsel were well aware of from the preliminary

hearing, the pretrial proceedings, and the Commonwealth’s

opening statement.

The forensic evidence core of the Commonwealth’s case

was such that the failure to challenge it would likely lead the

jury to conclude not just that Siehl had on some occasion been

in the bathroom, but also that (1) he had been in the victim’s

bathroom within 24 hours of the discovery of the fingerprint; (2)

he had stood outside and beside the tub and directed the

showerhead toward the place where the victim’s body was found

lying in the tub; (3) during his violent struggle with the victim

in the bathroom, his blood and hers spattered together on the

bathroom doorframe; and (4) none of the 20 items in the

bathroom that tested positive for blood was consistent with the

blood of the two other suspects.

While trial counsel cross-examined the Commonwealth’s

forensic evidence witnesses, they did so without the advice of a

forensic expert, and the defense countered with no forensic

evidence of its own. Indeed, counsel failed to seek additional

forensic assistance even after Smith’s “preliminary analysis” had

alerted them to the fact that Brant’s crucial 24 hour print aging

testimony was probably unsound.

In short, given the Commonwealth’s expected testimony

regarding the age and position of the print, and the position and

character of the blood samples found in the apartment, any

16

decision to stipulate that the print was Siehl’s without an

intention to counter that expected testimony was ineffective

because it effectively admitted that he was the murderer. Thus,

assessing the ineffective assistance claim in light of all the

circumstances, we conclude that the Superior Court’s

application of Strickland in this case was not objectively

reasonable and that the District Court was entitled to review the

record de novo.

B. The Case for an Evidentiary Hearing

An adequate record upon which to evaluate trial

counsels’ performance in this case has not yet been developed.

Accordingly, a final judgment about their performance cannot

be rendered at this time. We can and must make a judgment,

however, about whether Siehl has shown enough to entitle him

to an opportunity to create the necessary record. This involves

two issues: (1) whether this is a situation in which AEDPA bars

an evidentiary hearing in the federal habeas proceeding; and (2),

if not, whether Siehl has proffered sufficient evidence to

demonstrate that “a new hearing would have the potential to

advance the petitioner’s claim.” Campbell v. Vaughn, 209 F.3d

280, 286-87 (3d Cir. 2000).

“AEDPA and uniform case law interpreting it provide

that if the habeas petition ‘has diligently sought to develop the

factual basis of a claim for habeas relief, but has been denied the

opportunity to do so by the state court, [AEDPA] will not

preclude an evidentiary hearing in federal court.’” Id. at 287

(quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.

1998)). Here, Siehl has shown that he diligently sought and was

17

denied an evidentiary hearing on the relevant issues before the

Court of Common Pleas in his post-conviction relief proceeding.

While this would not be a sufficient showing for purposes of

AEDPA if the waiver issue had been finally resolved against

him, we conclude that this was a sufficient showing given that

Siehl may be able to show that there was no waiver because

appellate counsel was ineffective in failing to raise the

ineffectiveness of trial counsel on direct appeal.4

Turning to the second issue, we also conclude that Siehl

has shown enough to demonstrate that an evidentiary hearing

would have the potential to advance his claim to habeas relief.

The record evidence and the evidence tendered by Siehl,

including the MacDonell report, if credited, would suggest that

he received ineffective assistance of counsel and that “‘there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of [his trial] would have been different,’” i.e.,

a probability “‘sufficient to undermine confidence in the

outcome.’” Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999)

(quoting Strickland, 466 U.S. at 694). This prima facie showing

is sufficient to entitle him to an evidentiary hearing in the

District Court if through no fault of his own he was unable to

establish the necessary record in the state courts.

Counsel’s duty to investigate does “not force defense

lawyers to scour the globe,” and limited investigation is

reasonable where counsel has good reason to think further

investigation would be wasteful. Rompilla v. Beard, 545 U.S.

4

See supra note 3.

18

374, 383 (2005). Here, even if counsel may have had good

reason to think that further investigation as to the identity of the

print would be wasteful,5 they apparently did not have good

reason to think that further expert opinion on the timing of the

print would not be helpful. Moreover, because Smith’s

preliminary report did not address the bloodstain evidence that

was said to implicate Siehl, it would appear unreasonable that

counsel had no expert opinion regarding that bloodstain

evidence, the only other physical evidence linking Siehl to the

murder. Although counsel’s strategic choices made after full

investigation are “virtually unchallengeable,” Strickland, 466

U.S. at 690, in the absence of some explanation not found in the

current record, the strategic choices of counsel here would

appear to have been made without a full investigation. If so,

they were not reasonable in light of the circumstances and facts

known to counsel at the time.

5

We say “may have had” because Siehl insists that what little

assistance trial counsel received from Smith contained numerous

red flags which should have led them to realize that he was not

competent to express an opinion on the origin of the fingerprint.

With the hindsight benefit of MacDonell’s report, the red flags

were indeed numerous. Even without that report, however,

some of those red flags were sufficiently noticeable that further

inquiry into counsels’ use and consideration of Smith’s

“preliminary analysis” is clearly appropriate. As we have noted,

that analysis contained no comparative analysis of the

fingerprints, set forth conclusory findings with no scientific

explanation or discussion, and failed to discuss the allegedly

incriminating blood evidence.

19

Based on the current record, we find the situation before

us much like that presented to the Sixth Circuit Court of Appeals

in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). There, the

state maintained that Richey had deliberately set fire to a house,

using accelerants, thereby occasioning the death of a child.

There were no eyewitnesses, and there was some evidence

suggesting that the fire was caused by careless smoking.

Accordingly, the state’s scientific evidence of arson was

fundamental to its case. Counsel retained an expert to evaluate

that scientific evidence, and the expert advised that he agreed

with the opinions of the state’s experts. Counsel accordingly did

not challenge the state’s scientific evidence of arson. The Court

found his performance deficient:

The scientific evidence of arson was thus

fundamental to the State’s case. Yet Richey’s

counsel did next to nothing to determine if the

State’s arson conclusion was impervious to attack.

True, Richey’s counsel retained [an expert] to

review the State’s arson evidence, so this case

does not exemplify that most egregious type,

wherein lawyers altogether fail to hire an expert.

But the mere hiring of an expert is meaningless if

counsel does not consult with that expert to make

an informed decision about whether a particular

defense is viable.

***

Having been simply served up with [the expert’s]

flat agreement with the State, and not having

20

known either what [the expert] did to arrive at his

conclusion or why he came out where he did,

[counsel] was in no position to make this

determination.

Id. at 362, 363.

Siehl’s prima facie case is also sufficient to suggest that

an evidentiary hearing would enable him to demonstrate a

reasonable probability that, but for the ineffectiveness of trial

counsel, the result of his trial would have been different. As

Siehl stresses, the only direct evidence placing him at the scene

of the murder at the relevant time was the fingerprint and

bloodstain evidence, and the Commonwealth’s evidence with

respect to those matters, in the absence of contradictory

evidence, was strongly supportive of Siehl’s guilt. MacDonell’s

evidence would establish that competent counsel, through Smith

or another expert retained to supplement his limited assistance,

would have been able to show that the showerhead fingerprint

evidence simply did not place Siehl at the scene at the relevant

time. MacDonell’s testimony would also indicate that

competent counsel would have been able to undermine the

Commonwealth’s bloodstain evidence by showing that the

bloodstain Ermlick identified as consistent with Siehl’s blood

came from the same source as the bloodstain identified by him

as coming from the victim. Undermining the Commonwealth’s

only direct evidence would also have fortified Siehl’s alibi

defense and underlined the fact that the Commonwealth offered

very little in the way of motive.

IV.

21

We will reverse the judgment of the District Court and

remand for an evidentiary hearing on Siehl’s ineffective

assistance of counsel claims identified in our certificate of

appealability.

22