PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No. 10-4133
_________
HAN TAK LEE,
Appellant
v.
STEVE GLUNT, SUPERINTENDENT, SCI HOUTZDALE;
DISTRICT ATTORNEY OF MONROE COUNTY;
ATTORNEY GENERAL OF PENNSYLVANIA
________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-08-cv-01972)
District Judge: Honorable Malcolm Muir
_______
Argued December 12, 2011
Before: SLOVITER, VANASKIE, Circuit Judges
and STENGEL, * District Judge
(Filed: January 27, 2012)
______
Peter Goldberger (Argued)
Ardmore, PA 19003
*
Hon. Lawrence F. Stengel, United States District Court
for the Eastern District of Pennsylvania, sitting by
designation.
Attorney for Appellant
Jeremy M. Bolles (Argued)
E. David Christine, Jr.
Mark S. Matthews
Monroe County Office of District Attorney
Stroudsburg, PA 18360
Attorneys for Appellees
Charlotte H. Whitmore
Pennsylvania Innocence Project
Philadelphia, PA l9l22
Attorney for Amicus Appellant
__________________
OPINION OF THE COURT
__________________
SLOVITER, Circuit Judge.
The brief on behalf of Petitioner-Appellant Han Tak
Lee has listed the following statement of issues:
1. Is petitioner-appellant Han Tak Lee
incarcerated for a crime of which newly discovered
scientific evidence persuasively shows he is probably
innocent, in violation of his due process rights?
a. Is an actual innocence claim based upon
newly discovered evidence cognizable in a federal
habeas corpus petition filed under 28 U.S.C. § 2254?
b. Does AEDPA’a deferential standard of
review apply to the Pennsylvania Superior court’s
decision in this case?
2
2. Is petitioner-appellant Lee entitled at least to
discovery and an evidentiary hearing?
Appellant’s Br. at 2.
Because we dispose of this matter on the final issue
listed, we will not reach the other provocative issues in Nos. 1
and 1a above.
Petitioner Han Tak Lee appeals from the District
Court’s Order, which denied his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 without granting
discovery or conducting an evidentiary hearing. 1 Lee had
been charged with first degree murder and arson after his
twenty-year-old mentally ill daughter died in a cabin fire at a
religious retreat in the Pocono Mountains. He was convicted
on both counts in a jury trial and sentenced to life
imprisonment without the possibility of parole.
Lee filed a petition for habeas corpus against the
Superintendent of the state prison where he has been
incarcerated, the District Attorney of Monroe County and the
Attorney General of Pennsylvania (hereafter collectively
referred to as “Commonwealth”). Lee now argues that his
habeas petition should be granted because he is actually
innocent. Specifically, he argues that newly discovered
evidence proves that the fire expert testimony that the
Government relied upon to secure his convictions was
fundamentally unreliable and that therefore his continued
incarceration violates his due process rights. In a brief filed
on behalf of the Commonwealth containing less than three
pages of substance, the Commonwealth asserts that Lee “has
merely offered different evidence that could solely be used
for impeachment purposes,” which “does not, on its own[,]
establish a constitutional violation.” Appellee’s Br. at 6. The
Commonwealth further argues that Lee’s “claim of actual
[innocence] without a clear separate constitutional violation is
not cognizable under 28 U.S.C. § 2254.” Id. at 7.
1
We have appellate jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253(a).
3
I.
Background
A. Convictions and Direct Appeals
Lee was convicted on September 17, 1990 after an
eight-day jury trial during which Lee’s attorney had argued
that Lee’s daughter was mentally ill and had set the fire as a
suicidal act. Post-verdict motions were denied and Lee was
sentenced to life without the possibility of parole. Lee
appealed his convictions to the Superior Court of
Pennsylvania, which remanded to the trial court for an
evidentiary hearing on Lee’s claims of ineffective assistance
of counsel. During that hearing, the court received substantial
evidence about developments in the field of fire science,
including testimony from fire expert John J. Lentini. 2 This
evidence provided ample reason to question the reliability of
the arson investigation.
Nevertheless, the trial court held that Lee had failed to
establish that trial counsel was ineffective despite, inter alia,
trial counsel’s failure to discredit the Commonwealth’s expert
witnesses or to argue that the fire was accidental. Lee filed a
direct appeal in the Superior Court of Pennsylvania, arguing
that trial counsel was ineffective. The Superior Court
affirmed Lee’s convictions and sentence, and the
Pennsylvania Supreme Court denied allowance of an appeal.
B. Post-Conviction Relief Act (PCRA)
2
John J. Lentini has undergone extensive training in the
field of fire investigation. He has published numerous
articles on the subject and has provided expert testimony in
over two hundred cases involving fires. He has testified in
both civil and criminal cases for plaintiffs and defendants,
and he has also served as an expert to advise the court. The
Commonwealth does not challenge Lentini’s qualification as
an expert.
4
In 1995, Lee filed a pro se petition for relief under the
PCRA in the Court of Common Pleas of Monroe County,
Pennsylvania. Inexplicably, the Commonwealth did not
comply with the court’s order to file a response, and the
petition sat dormant until the attorney who is now
representing Lee in this case requested leave to file an
amended petition in 2001. Lee’s attorney also requested an
order granting access to evidence and scientific records that
were in the possession of the state police. The District
Attorney consented to this disclosure, but the PCRA judge
refused to allow it, stating merely that it was “unduly
burdensome on the State Police.” App. at 103.
Lee’s attorney filed an amended petition for relief
under the PCRA in 2005, which argued that (1) Lee was
entitled to a new trial because of exculpatory evidence (in the
form of newly discovered scientific information about fires)
that was unavailable at the time of trial, and (2) appellate
counsel was ineffective in the direct appeal by failing to raise
a claim of after-discovered exculpatory evidence in addition
to the ineffective assistance claim he had raised. An affidavit
from fire expert John J. Lentini explaining developments in
fire science since the time of Lee’s trial was attached to the
amended petition.
The Court of Common Pleas held oral argument and
ultimately denied the petition for PCRA relief. In affirming
the denial of Lee’s PCRA petition, the Superior Court of
Pennsylvania concluded that the Lentini affidavit would be
“used solely to impeach the Commonwealth’s experts’
credibility and to contradict their opinion that the fire was of
incendiary origin.” App. at 67. The court also “reject[ed]
Lee’s assertion that the Commonwealth’s methodology [for
arson investigation] was scientifically invalid” because
Lentini’s affidavit “merely challeng[ed] the varying degrees
of significance that are attributed to the generally accepted
components of arson investigation.” App. at 72-73. Under
Pennsylvania law, “[a] new trial may be granted on the theory
of after discovered evidence only if the new evidence . . . [,
inter alia,] will not be used solely for impeaching the
credibility of a witness.” App. at 66. This was the reason
5
given by the Superior Court to deny relief on this claim. The
Superior Court of Pennsylvania then denied Lee’s application
for reconsideration or re-argument en banc, and the Supreme
Court of Pennsylvania denied Lee’s application for allowance
of appeal.
C. Federal Habeas
Lee filed a timely petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the District Court for the
Middle District of Pennsylvania, arguing that (1) appellate
counsel was ineffective, (2) Lee’s due process rights were
violated because his convictions were based on inaccurate
and unreliable evidence, (3) Lee is incarcerated in violation of
due process because newly developed scientific evidence
shows that he is probably innocent of the crimes of which he
was convicted and there is no other substantial evidence of
guilt, and (4) trial counsel was ineffective. The District Court
noted that “[t]he respondent concede[d] that Petitioner has
exhausted his state court remedies,” App. at 11, and the
Commonwealth has conceded that Lee raised these federal
issues in his state court proceedings. See Appellee’s Br. 8
(“[A]ll of the appellant’s claims have been heard by the state
court system.”); see also Albrecht v. Horn, 485 F.3d 103, 124
(3d Cir. 2007) (“Ultimately, the state post-conviction claim
was not very different from the federal habeas claim [because
the] essential factual and legal substance of the
innocence/unreliable fire science claim was presented at both
the trial and state Supreme Court levels.”).
The District Court denied the petition for habeas relief,
reasoning that “Lee’s claim of newly discovered evidence is
not cognizable under § 2254 because claims of actual
innocence based on newly discovered evidence are never
grounds for federal habeas relief absent an independent
constitutional violation.” App. at 15-16 (citations omitted).
The District Court also concluded that no evidentiary hearing
was warranted because “Lee’s claims of newly discovered
evidence were presented to the Pennsylvania Courts in his
PCRA petition, and affirmed on appeal.” Id. at 16. The
District Court noted the Superior Court’s conclusion that “the
6
after-discovered evidence that would have been used solely
for impeachment purposes [did] not warrant a new trial under
Pennsylvania law.” Id. at 17. The District Court also denied
Lee’s ineffective assistance claims. 3
Lee appealed. The Pennsylvania Innocence Project – a
non-profit legal clinic housed at Temple University School of
Law and dedicated to providing pro bono legal and/or
investigative services to prisoners for whom evidence
discovered post-conviction can provide conclusive proof of
innocence – filed an amicus brief in this court, arguing that
“the federal Constitution provides an avenue through [which]
the truly innocent may obtain their freedom, notwithstanding
the lack of any underlying constitutional violations.” Amicus
Br. at 2.
II.
Standard of Review
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) limits the power of a federal court to grant
habeas relief to a person in custody pursuant to a state court
judgment. Federal courts may only entertain habeas petitions
alleging that the state prisoner is in custody “in violation of
the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). When a federal claim has been adjudicated
on the merits by the state court, the federal court may only
grant the writ if the state court’s decision as to the federal
claim was “(1) . . . contrary to, or involved an unreasonable
application of, clearly established federal law, as determined
by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Id. §
2254(d). If the state court analyzed and rejected a habeas
petitioner’s federal claims on the merits but gave “no
3
Because Lee’s request for a certificate of appealability
was granted only as to the claims related to his alleged actual
innocence, we do not address his ineffective assistance
claims.
7
indication of how it reached its decision,” then the deferential
standard of review from § 2254 still applies. See Chadwick v.
Janecka, 312 F.3d 597, 606 (3d Cir. 2002) (internal quotation
marks and citation omitted).
However, if the state court did not reach the merits of
the federal claims, then they are reviewed de novo. See Cone
v. Bell, 129 S. Ct. 1769, 1784 (2009). Even in this situation,
the State court’s relevant factual determinations are presumed
to be correct unless the petitioner rebuts this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
It is clear that the state courts in this case relied only
on state law to deny Lee’s PCRA petition, and there is no
indication that the state courts analyzed Lee’s federal claims. 4
Accordingly, Lee’s federal claims are subject to de novo
review.
III.
Analysis
Lee argues that his continued incarceration is
unconstitutional because his convictions are predicated on
what new scientific evidence has proven to be fundamentally
4
The Court of Common Pleas’ Opinion denying Lee’s
PCRA petition spanned twenty pages and the Superior Court
of Pennsylvania explained its decision to affirm in a sixteen
page memorandum, yet neither references a federal due
process claim. If the Superior Court of Pennsylvania’s
decision to “reject Lee’s assertion that the Commonwealth’s
methodology [underlying the fire expert testimony] was
scientifically invalid” was a decision on the merits, then it
was based on an unreasonable determination of the facts
because the portions of the Lentini affidavit explaining new
developments in fire science plainly establish the unreliability
of the methodology used by the experts who testified at Lee’s
trial. 28 U.S.C. § 2254(d)(2).
8
unreliable expert testimony, in violation of due process. 5 To
succeed, Lee must show that the admission of the fire expert
testimony “undermined the fundamental fairness of the entire
trial,” Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001),
because “the probative value of [the fire expert] evidence,
though relevant, is greatly outweighed by the prejudice to the
accused from its admission.” Bisaccia v. Attorney Gen., 623
F.2d 307, 313 (3d Cir. 1980) (quoting United States ex rel.
Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974)). 6
Before this claim can be adjudicated on the merits, this case
will be remanded for discovery. 7
Lee asked the District Court to “schedule this case for
evidentiary hearing, permitting petitioner in preparation for
such hearing to conduct necessary discovery.” App. at 57.
Lee asserts that he is entitled to “whatever physical evidence
remains” from the fire scene, including “the gas
5
Lee also argues that he is entitled to federal habeas relief
because he is actually innocent. As explained hereafter, Lee’s
allegations, if proven, would be sufficient to establish a due
process violation. Therefore, we need not decide whether
Lee’s allegations meet the “extraordinarily high” threshold
for granting federal habeas relief based on a freestanding
claim of actual innocence. Herrera v. Collins, 506 U.S. 390,
417 (1993).
6
At oral argument, counsel for the Commonwealth agreed
that this type of claim is cognizable in a federal habeas
petition: “If we were at the point where we can say that it’s
accepted scientifically that not only this is new evidence but it
clearly . . . disproves the old evidence in saying the old
evidence is now misleading, then we’re there, then we have a
due process violation, now we have the actual claim of
innocence . . . [and] there potentially could be an innocent
man in jail . . . .” Oral Arg. at 26:12.
7
As will be explained, the District Court will determine
whether Lee is entitled to an evidentiary hearing after it has
granted discovery and reviewed the expanded record. See
infra Part III.B.
9
chromatograms, state laboratory reports, and any preserved
fire debris, as well as the complete file of [the
Commonwealth’s expert] retired Fire Marshal Thomas
Jones.” Appellant’s Br. at 54. In essence, Lee argues that his
expert needs the opportunity to independently review the
evidence from the scene of the fire to fully develop the facts
underlying Lee’s claim that the expert testimony admitted at
his trial was fundamentally unreliable. The District Court
concluded that no evidentiary hearing was warranted because
“Lee’s claims of newly discovered evidence were presented
to the Pennsylvania Courts in his PCRA petition, and
affirmed on appeal.” App. at 16. This appeal requires this
court to decide whether that decision was an abuse of
discretion.
A. Discovery
Rule 6 of the Rules Governing § 2254 Cases states that
“[a] judge may, for good cause, authorize a party to conduct
discovery under the Federal Rules of Civil Procedure and
may limit the extent of discovery.” “A habeas petitioner may
satisfy the ‘good cause’ standard by setting forth specific
factual allegations which, if fully developed, would entitle
him or her to the writ.” See Williams v. Beard, 637 F.3d 195,
209 (3d Cir. 2011) (citing Harris v. Nelson, 394 U.S. 286,
300 (1969); Lave v. Dretke, 416 F.3d 372, 380 (5th Cir.
2005)). “We review the District Court’s denial of a discovery
request for abuse of discretion.” Id. at 209 (citations
omitted). “A district court abuses its discretion when
discovery is essential for the habeas petitioner to develop
fully his underlying claim.” Id. (internal quotation marks and
citations omitted).
There can be no doubt that Lee has satisfied the good
cause standard. Lee specifically alleges that his claim
“depend[s] on certain facts about scientific developments
since the time of trial” and that “[t]he PCRA court . . . denied
the petitioner’s consent motion for production of physical and
scientific evidence in the Commonwealth’s possession to
permit his expert to verify and support his analysis.”
Appellant’s Br. at 53. He concludes that “[a]ny current
10
deficiency in the record is therefore not attributable to any
fault of the petitioner . . . .” Id. The District Court
unaccountably did not acknowledge that Lee had requested
access to this fire scene evidence in the state court and that
his request was denied, but that fact is shown by the record.
The ability to test the fire scene evidence is crucial
because, without independent testing, Lee’s expert cannot
render an independent opinion as to the significance of this
evidence and instead must rely on other experts’ reports to
reach his conclusions. We note that Lentini does not make
extravagant claims on behalf of Petitioner. Instead, he was
particularly cautious in his evaluation, stating
Because of the manner in which this fire was
investigated, I am unable to render an opinion as to the
cause of the fire, but I can state unequivocally that all
of the evidence presented to the Court by the
Commonwealth’s experts is consistent with an
accidental fire.
App. at 154 ¶ 30. See also Appellant’s Br. at 47 (“The only
reason that [Lentini] could not rule out arson or establish
accident, it may be presumed, is that the trial judge, when
presiding over the PCRA proceedings, refused to grant
petitioner’s unopposed motion for access to the remaining fire
scene evidence and the contemporaneous scientific test
results.”). In fact, the Court of Common Pleas acknowledged
the impact of failing to give Lee’s expert access to this
evidence when it noted that “the fact that [Lentini] did not
have the benefit of investigating the scene or testing any of
the residue remaining from the events which occurred some
15 years ago would give little credibility to his conclusions
before any fact finder.” App. at 177. Given that Lee has
alleged that his expert’s independent analysis will reveal that
the fire expert testimony at his trial was fundamentally
unreliable, 8 he has satisfied the good cause standard and the
8
It is worth noting that one of the experts that the
Commonwealth relied upon at trial—Mr. Jones—responded
to an article about this fire by writing a letter to the editor, in
11
District Court’s denial of his request for discovery was an
abuse of discretion. 9
B. Evidentiary Hearing
In Cullen v. Pinholster, the Supreme Court held that
“review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits.” 131 S. Ct. 1388, 1398, 1400 n.4 (2011). 10 However,
this limitation does not apply to federal claims that have not
been adjudicated on the merits in state-court proceedings, in
which case § 2254(e)(2) is controlling. Id. at 1401. It
provides:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall
which he stated “Keep in mind that this investigation was
conducted in 1989 . . . . Some of the indicators found at the
scene were accepted practice at that time.” App. at 142
(citing Fire and Arson Investigator, April 2000, page 5). This
statement implicitly acknowledges that some of the indicators
relied upon at trial are no longer accepted as valid indicators
of arson, and that his testimony may have been different if the
new science had been available in 1989.
9
At oral argument, counsel for the Commonwealth
frankly stated that he does not know if this evidence is still
available. In the event that the evidence has been destroyed,
the District Court will be in the best position to decide
whether the spoliation inference is appropriate. See Schmid v.
Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994)
(“Since the early 17th century, courts have admitted evidence
tending to show that a party destroyed evidence relevant to
the dispute being litigated . . . [and s]uch evidence permitted
an inference . . . that the destroyed evidence would have been
unfavorable to the position of the offending party.”).
10
Our analysis under § 2254(d)(2), see supra note 4, was
based on the record before the state court.
12
not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2).
Therefore, § 2254(e)(2) bars a federal habeas court
from holding an evidentiary hearing “unless the petitioner
was diligent in his attempt to develop a factual basis for his
claim in the state court proceedings[.]” Palmer v. Hendricks,
592 F.3d 386, 392 (3d Cir. 2010). “Under the opening clause
of § 2254(e)(2), a failure to develop the factual basis of a
claim is not established unless there is lack of diligence, or
some greater fault, attributable to the prisoner or the
prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432
(2000). Thus, the opening clause of § 2254(e)(2) does not bar
an evidentiary hearing for a claim that was “pursued with
diligence but remained undeveloped in state court.” Id. at
434.
Here, it is clear that Lee pursued his claim that newly
developed scientific evidence establishes that the expert
testimony at his trial was fundamentally unreliable. He was
diligent in his efforts to develop this claim in state court by
filing a motion for access to evidence from the fire scene so
13
that his expert could perform independent analysis by
applying the new science to that physical evidence. When the
state court denied this motion and the motion for
reconsideration of that denial, it “depriv[ed] petitioner of a
further opportunity to investigate.” Id. at 442. If his expert
had access to this evidence, he presumably would have been
able to render an independent opinion as to whether the fire
was intentionally set. Given the Commonwealth’s decision
not to contest the accuracy of the Lentini affidavit and the
refusal of the state court to grant discovery, Lee had no
reason to press his request for an evidentiary hearing any
further. 11 Id. at 435 (“Diligence for purposes of the opening
clause depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to
investigate and pursue claims in state court . . . .”). Lee’s
efforts cannot fairly be characterized as exhibiting a lack of
diligence or greater fault, and his request for an evidentiary
hearing in federal court is therefore not barred by the opening
clause of § 2254(e)(2). See id. at 437 (“[C]omity is not
served by saying a prisoner ‘has failed to develop the factual
basis of a claim’ where he was unable to develop his claim in
state court despite diligent effort.”). 12
11
Lee’s amended PCRA petition contained a conditional
request for an evidentiary hearing as well as a certification of
the intended witnesses for such a hearing, as required under
Pennsylvania state law. See App. at 109.
12
Even if we were to find that Lee had failed to develop
the factual basis of his claim in state court within the meaning
of the opening clause of § 2254(e)(2), his case fits within the
statutory exception to this bar. Section 2254(e)(2) provides
that “lack of diligence will not bar an evidentiary hearing if
efforts to discover the facts would have been in vain, see §
2254(e)(2)(A)(ii), and there is a convincing claim of
innocence, see § 2254(e)(2)(B) . . . .” Id. at 435. Lee surely
satisfies this standard. Lee made efforts to discover the
relevant facts but his consent motion was denied, as was his
motion for reconsideration of that decision. Lee had every
reason to believe that further efforts to discover these facts
would have been in vain. Lee also has a convincing claim of
14
The fact that a federal court is not barred from holding
an evidentiary hearing on Lee’s federal claim does not
establish that Lee is entitled to such a hearing. To make this
determination, the court must evaluate (i) “whether the
petition presents a prima facie showing which, if proven,
would enable the petitioner to prevail on the merits of the
asserted claim,” and (ii) whether the relevant factual
allegations to be proven at the evidentiary hearing are
“contravened by the existing record” or the record “otherwise
precludes habeas relief[.]” Palmer, 592 F.3d at 393 (internal
quotation marks and citations omitted); see also Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). We review a District
Court’s decision to deny an evidentiary hearing for abuse of
discretion by considering the same two factors. See Palmer,
592 F.3d at 393-94 (citations omitted); see also id. at 393 n.3
(“The Supreme Court has not held, and we do not suggest,
that a court is precluded from considering additional factors
in determining the appropriateness of an evidentiary
hearing.”).
Lee avers that his expert will conclude that there is no
support for the conclusion that the fire was intentionally set if
he is given the opportunity to analyze the fire scene evidence
and apply the principles known through the new
developments in fire science to that physical evidence. These
allegations, if proven, set forth a prima facie case for granting
Lee habeas relief on his due process claim by showing that
the admission of the Commonwealth’s fire expert testimony
undermined the fundamental fairness of Lee’s entire trial
because the testimony was premised on unreliable science
and was therefore itself unreliable. These factual allegations
innocence: if Lee’s expert’s analysis of the fire scene
evidence establishes that the fire was not of incendiary origin,
then that would be clear and convincing evidence that no
reasonable factfinder would have convicted Lee if not for the
admission of the fundamentally unreliable expert testimony at
his trial. Therefore, Lee’s request for an evidentiary hearing
in federal court is not barred by § 2254(e)(2).
15
are not contradicted by the existing record, 13 not least because
the Commonwealth has not offered any evidence supporting
the validity of the old methodology and does not challenge
the accuracy of the Lentini affidavit, which describes the
developments in fire science since Lee’s trial and explains
that many of the scientific theories relied upon by the
Commonwealth’s experts have been refuted. 14 Once Lee is
granted discovery on remand, the District Court will only
then be able to determine whether the factual allegations
underlying Lee’s claims are refuted by the expanded record.
IV.
Conclusion
Lee was diligent in his efforts in state court to develop
his claims that newly developed scientific evidence
establishes that the expert testimony at his trial was
fundamentally unreliable, in violation of due process, and that
Lee is actually innocent. Additionally, Lee has alleged
sufficient facts to demonstrate that discovery is essential to
13
The record shows that Lee’s pants were covered in
liquid, but the parties dispute whether that liquid was
conclusively determined to be accelerant. Therefore, further
testing is required to determine whether the presence of this
liquid constitutes other evidence of guilt. Cf. Albrecht, 485
F.3d at 126 (concluding that a habeas petitioner could not
“exploit the new scientific knowledge [about fires] here” to
obtain relief “because of ample other evidence of guilt”).
14
Parts of the Lentini affidavit criticize the
Commonwealth’s fire expert testimony based on information
that was available at the time of the trial. We have not
considered these criticisms in reaching our conclusion that
Lee’s allegations, if proven, show that the admission of the
fire expert testimony undermined the fundamental fairness of
his entire trial. Rather, our conclusion is based solely on
Lentini’s explanations of new developments in fire science
since the time of Lee’s trial.
16
the development of his federal claims. If Lee’s expert’s
independent analysis of the fire scene evidence—applying
principles from new developments in fire science—shows
that the fire expert testimony at Lee’s trial was fundamentally
unreliable, then Lee will be entitled to federal habeas relief on
his due process claim. Accordingly, because the District
Court failure to grant Lee’s request for discovery was not in
the exercise of the Court’s sound discretion, this case will be
remanded for further proceedings consistent with this
Opinion.
17