Where a criminal defendant has compelling evidence of actual innocence in the form of exculpatory expert voiceprint analysis, does that defendant receive the ineffective assistance of counsel when trial and appellate counsel fail to properly challenge the trial court's violation of the defendant's fundamental due process right to present a defense in excluding that evidence on the basis of a non-existent notice requirement without even holding a hearing on whether the latest scientific evidence would render the testimony admissible?

QUESTION PRESENTED John Hart was convicted of harassment and stalking after the trial court prohibited him from presenting evidence of actual innocence in the form of a voice print analysis. The court did not evaluate the admissibility of the expert testimony conclusion but instead precluded the evidence based on a non-existent notice requirement. Hart’s counsel failed to properly introduce the evidence, and his appellate counsel failed to raise the issue on appeal. In the subsequent habeas litigation, the Magistrate Judge erroneously found that she should not evaluate the admissibility of the evidence under Pennsylvania’s Frye standard because she was bound by the court’s ruling. The Magistrate Judge should have reviewed the claim under the rubric of the ineffective assistance of counsel. The Third Circuit Court of Appeals declined to issue a certificate of appealability, finding in a cursory fashion that a 45-year old Pennsylvania Supreme Court case forever prohibits the admission of voice print analysis. This case merits review because a ruling which amounts to a per se bar on a particular type of scientific evidence regardless of advances in the science behind the expert technique violates a criminal defendant’s constitutional right to present a defense. Hart should have received an evidentiary hearing on his claim. Therefore, the question presented is: Where a criminal defendant has compelling evidence of actual innocence in the form of exculpatory expert voiceprint analysis, does that defendant receive ti the ineffective assistance of counsel when trial and appellate counsel fail to properly challenge the trial court’s violation of the defendant’s fundamental due process right to present a defense in excluding that evidence on the basis of a non-existent notice requirement without even holding a hearing on whether the latest scientific evidence would render the testimony admissible?