Han Lee v. Superintendent Houtzdale SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 14-3876
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HAN TAK LEE

v.

SUPERINTENDENT HOUTZDALE SCI;
DISTRICT ATTORNEY MONROE COUNTY;
ATTORNEY GENERAL PENNSYLVANIA

Superintendent Houtzdale SCI;
District Attorney Monroe County,
Appellants
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-08-cv-01972)
District Judge: Honorable Martin C. Carlson
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Argued on June 18, 2015

Before: AMBRO, FUENTES,
and GREENBERG, Circuit Judges
 (Filed: August 19, 2015)

Mark S. Matthews, Esq.
Matthew J. Bernal, Esq. (Argued)
Monroe County District Attorney’s Office
Monroe County Courthouse
610 Monroe Street, Suite 126
Stroudsburg, PA 18360
Counsel for Appellants

Peter Goldberger, Esq. (Argued)
Pamela A. Wilk, Esq.
50 Rittenhouse Place
Ardmore, PA 19003-2276
Counsel for Appellee
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OPINION
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AMBRO, Circuit Judge

Appellee Han Tak Lee was convicted of murdering his
daughter based primarily on scientific evidence that, as the
Commonwealth now concedes, is discredited by subsequent
scientific developments. Lee thus filed a § 2254 habeas
petition claiming his conviction violated due process. The
District Court granted habeas relief, and we affirm.

2
I. Background1

Mr. Lee’s daughter, Ji Yun Lee, suffered from severe
mental illness throughout her life, experiencing both suicidal
and homicidal ideation. She lived with her family in New
York during the summer of 1989. In the early morning of
July 28, police officers found Lee retrieving personal items
from the street that his daughter had thrown out the window.
The officers entered the house and found Ji Yun in a manic
state, arguing with family members who were urging her to
take her medications. The officers observed no evidence of
violence against her.

At the suggestion of his pastor, Lee took his daughter
the same day to Camp Hebron, a religious retreat in Monroe
County, Pennsylvania. Her erratic behavior continued. Soon
after arriving, Ji Yun went for a walk and returned several
hours later soaking wet, having jumped into a body of water.
Later that day, she became agitated and had to be physically
restrained. A few hours after midnight, a fire began in the
Lees’ cabin. Han Tak Lee escaped, but his daughter died.

The Commonwealth charged Lee with arson and
murder. During an eight-day trial, it relied heavily on fire-
science and gas-chromatography evidence to argue that Lee
intentionally set the fire to kill his daughter. The defense
countered that she set the fire as a suicidal act. Lee was
convicted on both charges and sentenced to life imprisonment
without the possibility of parole.

On direct appeal, the Superior Court of Pennsylvania
remanded for an evidentiary hearing on ineffective-

1
We discussed the background of this case in greater detail in
our prior opinion. See Lee v. Glunt, 667 F.3d 397, 400–03
(3d Cir. 2012).

3
assistance-of-counsel claims. During that hearing, the Court
also received evidence about developments in the field of fire
science that, according to a prior panel of our Court,
“provided ample reason to question the reliability of the arson
investigation.” Lee v. Glunt, 667 F.3d 397, 401 (3d Cir.
2012). The trial court nonetheless denied Lee’s claims, the
Superior Court affirmed, and the Pennsylvania Supreme
Court denied appeal.

In 1995 Lee filed a pro se post-conviction petition in
state court. The Commonwealth did not comply with the
court’s order to respond, and the petition remained pending
until 2001 when the attorney who is now representing Lee
filed leave to amend the petition. He submitted an amended
petition in 2005, arguing that (1) Lee was entitled to a new
trial because of newly discovered and exculpatory scientific
evidence, and (2) appellate counsel was ineffective on direct
appeal by failing to raise a claim of after-discovered
exculpatory evidence. The Court of Common Pleas denied
the petition for post-conviction relief, the Superior Court
affirmed, and the Supreme Court of Pennsylvania denied
appeal.

Lee filed a § 2254 habeas petition in the District Court
for the Middle District of Pennsylvania, claiming that (1) his
conviction violated due process because it was based on
inaccurate and unreliable evidence and (2) his continued
incarceration also lacked the due process due him because
newly developed scientific evidence showed he was probably
innocent.2 The District Court denied Lee’s petition and
request for an evidentiary hearing because “claims of actual
innocence based on newly discovered evidence are never
grounds for federal habeas relief absent an independent

2
The Commonwealth conceded that Lee exhausted state
court remedies. See Lee, 667 F.3d at 402.

4
constitutional violation.” Lee v. Tennis, No. 08-1972, 2010
WL 3812160, *5 (M.D. Pa. Sept. 22, 2010).

A panel of our court reversed on appeal. Explaining
that Lee’s petition raised a due-process claim rather than a
free-standing innocence claim, Lee, 667 F.3d at 403 n.5, we
ordered the District Court to grant discovery and then
reconsider whether to hold an evidentiary hearing. Id. at
404–07 & n.7. We instructed that Lee “must show that the
admission of the fire expert testimony undermined the
fundamental fairness of the entire trial because the probative
value of [the fire expert] evidence, though relevant, is greatly
outweighed by the prejudice to the accused from its
admission.” Id. at 403 (citation and internal quotation marks
omitted, alteration in original). We also implied that habeas
relief should be denied if there is “ample other evidence of
guilt.” Id. at 407 n.13 (quoting Albrecht v. Horn, 485 F.3d
103, 126 (3d Cir. 2007)).

On remand, Magistrate Judge Carlson held an
evidentiary hearing and issued a Report & Recommendation
(R&R) finding that “the admission of the fire expert
testimony undermined the fundamental fairness of the entire
trial” because the “verdict . . . rest[ed] almost entirely upon
scientific pillars which have now eroded.” Lee v. Tennis, No.
08-1972, 2014 WL 3894306, at *15–16 (June 13, 2014)
[hereinafter R&R]. It also found that the Commonwealth
failed to show other “‘ample evidence’ of guilt upon which
the jury could have relied.” Id. at *18 (quoting Albrecht, 485
F.3d at 126).

Along with a two-page memorandum, the
Commonwealth filed three objections to the R&R before the
District Court:

5
 1. [It] underplayed the strength of
the Commonwealth’s case in general.
2. [It] overstated the importance of
the differences between the
spectrographs for Lee’s pants and shirt,
and the jug and the glove found at the
fire scene.
3. []Lee has not been exonerated by
the new fire science evidence.

App. E. at 1–3.

The District Court rejected the third objection because,
as explained in our prior opinion in this case, Lee’s due-
process claim does not require a showing of innocence. Lee
v. Tennis, No. 08-1972, 2014 WL 3900230, *5 (M.D. Pa.
Aug. 8, 2014) (citing Lee, 667 F.3d at 403 n.5). In addition,
the Court rejected the first and second objections because the
Commonwealth failed to identify with specificity any legal or
factual errors in the R&R. Id. In the absence of any proper
objections, the District Court reviewed the R&R for clear
error and adopted it without changes. Id. at *4–5. It then
issued an order granting habeas relief unless the
Commonwealth “retr[ied] . . . or release[d]” Lee within 120
days. Id. at *7.

The Local Rules in the Middle District of
Pennsylvania require filing a notice of appeal electronically.
The District’s electronic filing system requires that the
moving party simultaneously pay a $505 filing fee. As the
credit account for the County of Monroe limits payments to
$500, the Commonwealth was unable to pay the fee by credit
card. Instead, it mailed a notice of appeal along with a check
on September 5, 2014. The District Court Clerk’s Office
received the package on September 8, exactly 30 days after
entry of judgment. The docket initially indicated that the

6
notice was filed the next day, September 9, but a few weeks
later the Clerk’s Office noted on the docket that the “[f]iled
date for the notice of appeal has been corrected to reflect the
date of 9/8/2014, the date it was received by the Court.”

II. Jurisdiction

A “certificate of appealabilty is not required when a
state . . . appeals” a grant of habeas relief. Fed. R. App. P.
22(b)(3); see also Lambert v. Blackwell, 387 F.3d 210, 230
n.16 (3d Cir. 2004). We thus have appellate jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a) if the Commonwealth
“filed” a notice of appeal “within 30 days after the entry
of . . . judgment.” 28 U.S.C. § 2107.

Lee first argues that the notice of appeal was untimely
because the Clerk’s Office did not file it until 31 days after
entry of judgment. This is a non-starter. Under Federal Rule
of Civil Procedure 5(d)(2), a notice of appeal is “filed by
delivering it . . . to the clerk,” id., and is delivered when
received by the clerk, Parissi v. Telechron, Inc., 349 U.S. 46,
47 (1955) (per curiam) (“[T]he Clerk’s receipt of the notice
of appeal within the 30-day period satisfied the requirements
of § 2107.”); United States v. Solly, 545 F.2d 874, 876 (3d
Cir. 1976) (“The date of receipt by the clerk’s office controls,
rather than the date it is filed by the clerk’s personnel.”). The
parties and the Clerk’s Office all agree that the notice was
received on the 30th day. That it was not filed officially until
the day after is irrelevant to our jurisdiction.

Lee next argues that the notice of appeal cannot confer
appellate jurisdiction because its format did not comply with
local rules. As he points out, under Federal Rule of Civil
Procedure 5(d)(3) a “court may . . . allow papers to be
filed . . . by electronic means” and “may require electronic
filing . . . if reasonable exceptions are allowed.” Id.

7
(emphasis added). Local Rule 5.6 in the Middle District of
Pennsylvania states that “[a]ny document required or
permitted to be filed shall be filed electronically.” M.D. Pa.
R. 5.6. According to Lee, the Commonwealth’s notice of
appeal is invalid because it was submitted on paper in
violation of the local rules.

Once more we disagree. The Federal Rules require
that a notice of appeal “(A) specify the party . . . taking the
appeal . . . ; (B) designate the judgment . . . being appealed;
and (C) name the court to which the appeal is taken.” Fed. R.
App. P. 3(c)(1). Courts employ “a commonsense, purposive
approach to determine whether a notice of appeal complies
with the rules.” Gov’t of the Virgin Islands v. Mills, 634 F.3d
746, 751 (3d Cir. 2011). Indeed, “imperfections in noticing
an appeal should not be fatal where no genuine doubt exists
about who is appealing, from what judgment, to which
appellate court.” Becker v. Montgomery, 532 U.S. 757, 767
(2001); Mills, 634 F.3d at 751; see also id. at 752 (“[A]s long
as the judgment the party intends to appeal is fairly
discernible, a notice of appeal will be deemed sufficient even
though it references the wrong case number . . . or the wrong
judgment date.” (citations omitted)). Lee does not argue that
the notice of appeal failed to answer any of these three critical
questions. Following the Ninth Circuit, we thus reject the
argument that the notice of appeal was invalid simply because
it violated a local electronic filing requirement.3 See Klemm
v. Astrue, 543 F.3d 1139, 1143 (9th Cir. 2008) (“[A] notice of
appeal is filed when it is received by the clerk,
notwithstanding deficiencies in form that violate local rules

3
That the notice of appeal confers appellate jurisdiction does
not leave the district court “without other sanctions” for
violations of local filing requirements. Parissi, 349 U.S. at
47; see also Gould, 555 F.2d at 341.

8
. . . [, including] failure to comply with the local electronic
filing rules.”).

Federal Rule of Civil Procedure 5(d)(4) supports our
conclusion. It states that the “clerk must not refuse to file a
paper solely because it is not in the form prescribed by these
rules or by a local rule or practice.” Fed. R. Civ. P. 5(d)(4).
In addition, Federal Rule of Appellate Procedure 3(c)(4)
provides that an “appeal must not be dismissed for
informality of form . . . of the notice of appeal.” Our
conclusion is further supported by Lee’s failure to argue that
the paper submission prejudiced him in any way. Mills, 634
F.3d at 752 (“While a lack of prejudice will not save a notice
that totally fails to comply with the rules, courts
understandably are more willing to overlook a notice’s flaws
in the absence of prejudice to the opposing party.” (citations
omitted)); Sanabria v. United States, 437 U.S. 54, 67 n.21
(1978) (“A mistake in designating the judgment appealed
from is not always fatal, so long as the intent to appeal from a
specific ruling can fairly be inferred by probing the notice and
the other party was not misled or prejudiced.”).

Lee’s jurisdictional challenge is unpersuasive for
another reason as well. In Parissi, the Supreme Court held
that a clerk’s office cannot reject a notice of appeal simply
because the filing fee has not been paid.4 349 U.S. at 47

4
We note there is some ambiguity about the status of Parissi
because the Supreme Court Reporter, which is published by
West, appears to label the opinion as a Memorandum
Decision. Parissi v. Telechron, Inc., 75 S. Ct. 577, 577
(1955). But the United States Reports, the official reporter
for the Supreme Court, 28 U.S.C. § 411, treats the case as an
opinion of the Court. Compare 349 U.S. LIII (1954) (“Cases
reported before page 901 are those decided with opinions of

9
(“[U]ntimely payment of the . . . fee did not vitiate the
validity of petitioner’s notice of appeal.”). We have similarly
instructed the clerk’s offices in the Third Circuit to “accept
and retain every notice of appeal tendered whether or not
accompanied by the filing fee.” Gould v. Members of the N.J.
Div. of Water Pol’y and Supply, 555 F.2d 340, 342 (3d Cir.
1977). This rule applies whether a human clerk or an
electronic filing system receives the notice. See Farzana K.
v. Ind. Dep’t of Educ., 473 F.3d 703, 707 (7th Cir. 2007)
(“The software that operates an e-filing system acts for ‘the
clerk’ as far as Rule 5 is concerned; a step forbidden to a
person standing at a counter is equally forbidden to an
automated agent that acts on the court’s behalf.”); Royall v.
Nat’l Ass’n of Letter Carriers, 548 F.3d 137, 143 (D.C. Cir.
2008) (“[T]he electronic case filing system’s failure to docket

the Court. Those reported on pages 901 et seq. are
memorandum decisions and orders.”), with Parissi, 349 U.S.
46. The Supreme Court has cited Parissi as legal authority
without questioning its status. See Houston v. Lack, 487 U.S.
266, 273 (1988). And in a dissenting opinion, Justice Harlan,
joined by Justices Frankfurter and Burton, described Parissi
as an “intervening and controlling decision” with respect to
another case not before the Supreme Court at the time.
United States v. Ohio Power Co., 353 U.S. 98, 105 n.16
(1957). We have cited Parissi as legal authority at least three
times, Wisniewski v. Dir., Office of Workers’ Comp.
Programs, 929 F.2d 952, 955 (3d Cir. 1991); Gould v.
Members of N.J. Div. of Water Pol’y and Supply, 555 F.2d
340, 341 (3d Cir. 1977); Rothman v. United States, 508 F.2d
648, 651–52 & n.17 (3d Cir. 1975), and on one of those
occasions it “mandated” our “result,” Gould, 555 F.2d at 341.
We therefore have little trouble concluding that Parissi is
binding Supreme Court precedent.

10
Royall’s timely submitted notice of appeal cannot be treated
as a failure on his part to file timely. His situation is akin to
one in which the clerk’s office misplaces a filing and then
later makes the docket entry when the filing is found.”).

The parties agree that the Middle District’s electronic
filing system rejects notices of appeal that lack a
simultaneous fee payment. Appellant Br. at 29–30; Appellee
Br. at 24. If Lee were correct that under Local Rule 5.6
parties cannot establish appellate jurisdiction by submitting a
paper notice of appeal, then the Commonwealth could not
have submitted a notice of appeal without simultaneously
paying the required filing fees. This arrangement would
clearly violate Parissi. If so, Local Rule 5.6 would violate
the Federal Rules by failing to provide a “reasonable
exception[]” to the local electronic filing requirement, Fed. R.
Civ. P. 5(d)(3), and the Commonwealth could not be held
responsible for its violation.

As we have appellate jurisdiction, we proceed to the
merits.

III. Standard of Review
A. AEDPA Deference

28 U.S.C. § 2254(e) of the Antiterrorism and Effective
Death Penalty Act (AEDPA) requires federal habeas courts to
“afford considerable deference to state courts’ legal and
factual determinations.” Palmer v. Hendricks, 592 F.3d 386,
391–92 (3d Cir. 2010). A panel of our Court previously held,

11
however, that deference does not apply here. Lee, 667 F.3d at
403.5 We therefore review the case without deference.

B. Plain Error

The District Court rejected the Commonwealth’s first
and second objections to the R&R because they failed to
identify with specificity any factual or legal errors. It thus
reviewed the R&R for clear error rather than conducting a de
novo review. On appeal, the Commonwealth does not
challenge this legal conclusion. “[W]here a party fails to file
timely objections to a magistrate judge’s R&R in a habeas
proceeding, and the district court then adopts the R&R,
we . . . only review the R&R for plain error.” Nara v. Frank,

5
Our opinion, issued in 2012, explained that Lee’s habeas
petition merits de novo review because the state courts “relied
on only state law to deny [Lee’s] PCRA petition, and there
[was] no indication that the state courts analyzed Lee’s
federal claims.” Lee, 667 F.3d at 403. Since this decision,
the Supreme Court has held that when a state court “rejects a
federal claim without expressly addressing that claim, a
federal habeas court must presume that the federal claim was
adjudicated on the merits—but that presumption can in some
limited circumstances be rebutted.” Johnson v. Williams, 133
S. Ct. 1088, 1096 (2013). Had we applied this rule in 2012,
we may have held that AEDPA deference applies. We
nonetheless review Lee’s current case without AEDPA
deference under law of the case. See Council of Alternative
Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999).
While this doctrine has an exception for intervening changes
in the law, id., the Commonwealth has not asked us to revisit
the issue here.

12
488 F.3d 187, 194 (3d Cir. 2007). Lee argues that plain error
thus applies because the District Court, in effect, decided that
the Commonwealth failed to file any proper objections at all.
As the Commonwealth concedes, its briefing does not dispute
that plain error review applies. Oral Argument Tr. at 5:18.6
At oral argument we asked why plain error review is
inappropriate, and the only response was that the
Commonwealth had “provide[d] some citations to [the R&R]
when [it] raised [its] objection with regard to Magistrate
Judge Carlson’s characterization of the evidence.” Id. 5:40.
In our own review of the objections, we find no such citations
to the R&R. Furthermore, a few citations would not have
addressed the District Court’s more fundamental concern that
the Commonwealth’s objections had “no basis in . . . law or
fact contained in the R&R to be called into question.” Lee,
2014 WL 3900230, at *5. As the Commonwealth fails to
challenge this determination on appeal and fails to give any
meaningful reason why plain error review is inappropriate,
that is the review we undertake.

We therefore reverse only if there is (1) an error,
(2) that is plain, (3) that “affects substantial rights,” and (4)
that “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Nara, 488 F.3d at 197
(internal quotation marks omitted).

IV. Merits

A panel of our court previously held that “Lee must
show that the admission of the fire expert testimony
undermined the fundamental fairness of the entire trial
because the probative value of [that] evidence, though

6
Id. (“Court: Why should we not review this particular appeal
for plain error? . . . Commonwealth: I agree it was not raised
in appellant’s brief in this matter . . . .”).

13
relevant, [was] greatly outweighed by the prejudice to the
accused from its admission.” Lee, 667 F.3d at 403 (alteration
in original) (citations and internal quotation marks omitted).
The District Court accepted Magistrate Judge Carlson’s
conclusion that the admission of fire-science and gas-
chromatography evidence at Lee’s trial met this standard and
the Commonwealth does not challenge this determination on
appeal. Instead, it merely argues that the District Court erred
by accepting Magistrate Judge Carlson’s conclusion that the
trial lacked “ample other evidence of guilt.” Id. at 407 n.13
(citing Albrecht, 485 F.3d at 126). We now turn to the
evidence presented at trial, including for the sake of
completeness the now discredited evidence.

A. Unreliable Evidence at Trial

1. Fire-Science Evidence

The Commonwealth does not object to Magistrate
Judge Carlson’s assessment of the fire-science evidence
presented at trial. He described it as follows. State Police
Fire Marshal Thomas Jones testified that the fire was caused
by arson based on two sources of evidence. First, he found
patterns of deep charring, alligator charring (charring shaped
like alligator skin), and crazed glass (finely fractured glass),
all of which were consistent with a fire deliberately started
with accelerant fluids. R&R at *5. Second, he found at least
eight separate points of origin located throughout the cabin.
According to the R&R, this was powerful evidence that
someone intentionally started eight different fires in the cabin
in rapid succession. Id. That one of the points was located at
the cabin’s door “suggested that the arsonist had acted in a
particularly calculated fashion, setting fire to the escape path
in the cabin, and effectively entombing Ji Yun Lee within a
wall of flames.” Id. at *6. Jones cited no other independent
scientific evidence that arson caused the fire. Id.

14
 Fire protection specialist Daniel Aston also testified on
behalf of the Commonwealth. Relying on the same evidence
discussed by Jones, Aston opined that the fire was set
deliberately and with an accelerant. Id. He stated that the last
fire was set at the front door of the cabin and that the arsonist
“left the structure[] and probably lit [the cabin] from the
outside at that point.” Id. Based on the then-dominant
scientific theory that arson fires burn at higher levels of heat
and intensity, Aston compared the estimated heat and energy
of the actual fire with the heat and energy that would have
been produced by a “normal” fire. Id. at *7. He claimed his
calculations could “determine with precision both the
amounts and types of accelerants” used to light the fire: “62
gallons of home heating fuel, mixed with 12.2 pounds . . . of
gasoline or Coleman fuel.” Id.

According to Magistrate Judge Carlson, Jones’s and
Aston’s testimony “constituted the principal pillar of proof
tying Lee to th[e] arson fire and the death of his daughter.”
Id. Their testimony “was not directly supported by any other
independent chemical testing[, as] the chemical analysis of
the [eight] suspected fire origin sites did not reveal any sign
of the more than 60 gallons of gas and fuel oil” that Aston
estimated were used to set the fire. Id.
The Commonwealth concedes that, due to scientific
developments since Lee’s trial in 1990, the basis for all of this
evidence is now invalid.

2. Chromatography Evidence

The Commonwealth also does not challenge
Magistrate Judge Carlson’s assessment of the
chromatography evidence presented at trial. According to the
R&R, the fire-science evidence described above was
bolstered by the testimony of State Police Chemist Thomas

15
Pacewicz, who conducted a gas chromatography of the shirt
and pants worn by Lee on the night of the fire and of a burned
jug and latex glove recovered from the wreckage. Id.
Pacewicz found no evidence of accelerants at the eight origin
sites identified by Jones and Aston, but testified that the
chromatography analysis of the shirt, pants, and jug all
revealed hydrocarbons that “ranged from C-7 to C-22.” Id.
He also testified that these results were consistent with a
mixture of gasoline, kerosene, Coleman fuel and fuel oils. Id.
Pacewicz thus corroborated Aston’s testimony that this mix
of chemicals was used to burn the cabin. Id. In its closing
argument, the Commonwealth emphasized the mutually
reinforcing link between the fire-science and chromatography
evidence, which together showed that the fire was set by
someone who intended to kill an occupant of the cabin and
matched the mix of chemicals allegedly used to start it with
the mix found on Lee’s clothes. Id. at *8.

Magistrate Judge Carlson found, and the
Commonwealth concedes, that subsequent scientific
developments and retesting of surviving materials from the
crime scene have undermined the reliability of Pacewicz’s
testimony. Id. at *17–18. On appeal, the Commonwealth
does not rely on his testimony to show “ample evidence of
guilt.”

B. What Evidence Remains?

The Commonwealth argues that three remaining
sources of evidence provide the “ample” evidence needed.
First, Monroe County Coroner Robert Allen and Forensic
Pathologist Isidore Mihalikis concluded, based on the autopsy
of Ji Yun’s body, that the cause and manner of death were
conflagration and homicide, respectively. Allen testified that
the body was found on the floor of the cabin a few feet from
the bathroom door “in a fetal position,” App. I at 133, under

16
“a bunch of insulation . . . and other debris” that had fallen
from the roof, id. at 116–17. Allen and Mihalikis testified
that there were “minimal” or “tiny” “hemorrhages in the
upper portion of [Ji Yun’s] neck,” id. at 138, 405, 408, 420,
that suggested “strangulation, . . . suffocation, or any pressure
in the neck,” id. at 408. They also found “minimal smoke
deposits in the [victim’s] windpipe and . . . lungs” and a
“slight elevation of [her] carbon monoxide levels.” Id. at 120,
405. They concluded that the hemorrhage, smoke deposits
and elevated carbon monoxide were all consistent with Ji Yun
being strangled before the fire was started.

As Magistrate Judge Carlson noted, this inference was
weak. R&R at *9. Allen and Mihalikis both acknowledged
that the autopsy results were consistent with Ji Yun dying by
a flashover7 rather than strangulation. App. I at 132–33, 406–
407. Mihalikis found no evidence of petechiae—tiny ruptures
of the capillaries caused by increased blood pressure—that
are present in “most strangulation cases.” Id. at 423. And
Allen and Mihalikis’s determination that Ji Yun died by
homicide was almost certainly colored by the now-debunked
fire-science evidence.

Second, the Commonwealth introduced testimony that
in the hours and days after the fire Lee’s demeanor showed
little sign of grief. Police Officer Leigh-Manuell, one of the
first individuals on the scene, found Lee sitting across from

7
A flashover is a phenomenon that causes “a fire within a
room to suddenly, spontaneously, and catastrophically engulf
all flammable surfaces in th[e] room.” R&R at *2. At the
time of the trial, fire scientists incorrectly believed that
flashovers were rare and that they left a “signature at a fire
scene which could be distinguished from the tell-tale signs of
arson.” Id.

17
the fire on a bench with his luggage, appearing “nonchalant.”
Id. at 20–21, 27. Volunteer firefighter David Farry said Lee
looked “very depressed, as if he was probably mad at
himself.” Id. at 56. High school senior David Pack described
Lee as “calm.” Id. at 162. Fire Marshall Jones testified that
the day after the fire Lee was “very attentive” to questions
asked of him, and “at times he even joked and laughed during
the questioning.” Id. at 256. Detective Bortz similarly
described Lee as “calm.” Id. at 621. And when Lee’s wife
arrived at the scene of the fire, she became visibly upset, and
yet, according to Fire Marshall Jones, Lee “walked right by
[her] like nothing happened.” Id. at 257.

Third, the Commonwealth argues that there was
evidence attacking the veracity of Lee’s account of what
happened the night of the fire. Two firefighters on the scene
testified that the fire started in the front of the cabin and then
traveled to the back, id. at 40–41, 57–58, which conflicts with
Lee’s testimony that when he walked out the front door the
fire was in the back of the house.

The Commonwealth also points to inconsistencies in
six different accounts Lee gave of what happened the night of
the fire. Commonwealth Br. at 36–37. The basic outlines
remain the same across each account: Lee woke up in the
middle of the night, smelled smoke, walked through the cabin
looking for his daughter, went outside, came back in and left
again. Id. Most of the “inconsistencies” identified by the
Commonwealth are better characterized as minor details
mentioned on some occasions and omitted on others. For
example, Lee only sometimes identified specific rooms he
checked when he reentered the house; only sometimes
mentioned grabbing his luggage before leaving the cabin the
second time; and only sometimes said that he slipped and fell
on liquid after reentering the cabin. Id. Only two
discrepancies could bear any significance at all. In at least

18
one account, Lee reentered the house twice; in others he
reentered only once. And in at least one account, Lee saw
flames before he left the house the first time; in four others,
he saw flames only when he reentered the cabin. Id. The
District Court characterized these discrepancies as “minor,”
noting that they could be explained by errors in translation
from Korean to English. R&R at *8.

* * * * *

Based on the evidence identified by the
Commonwealth, we cannot conclude that the District Court
committed an error that was plain by adopting the R&R. As
Magistrate Judge Carlson explained,

[t]he Commonwealth [is] left to argue that its
case . . . may be proven beyond a reasonable
doubt based upon alleged inconsistencies in the
Korean-to[-]English interpretation of statements
made by Lee in the hours following his
daughter’s death; a cultural stoicism which was
construed as nonchalance; . . . and autopsy
results which agreed that Ji Yun Lee died from
conflagration, but posited two alternate theories
of this cause of death, one of which was wholly
consistent with death in an accidental fire, and
the other of which was supported by very little
forensic evidence.

Id. at *18. Because the Commonwealth has not
pointed to “ample evidence” sufficient to prove guilt
beyond reasonable doubt, we affirm the District
Court’s grant of habeas relief.

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