                                                                                                                           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Precedential or Non-Precedential: Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Siehl v. Grace" (2009). 2009 Decisions. Paper 1618.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1618


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                      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
