Cite as: 577 U. S. ____ (2015) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

MARYLAND, PETITIONER v. JAMES KULBICKI 

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

APPEALS OF MARYLAND
 

No. 14–848. Decided October 5, 2015

 PER CURIAM. 

A criminal defendant “shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” U. S. Const., 

Amdt. 6. We have held that this right requires effective 

counsel in both state and federal prosecutions, even if the

defendant is unable to afford counsel. Gideon v. Wainwright, 372 U. S. 335, 344 (1963). Counsel is unconstitutionally ineffective if his performance is both deficient,

meaning his errors are “so serious” that he no longer

functions as “counsel,” and prejudicial, meaning his errors

deprive the defendant of a fair trial. Strickland v. Washington, 466 U. S. 668, 687 (1984). Applying this standard 

in name only, the Court of Appeals of Maryland held that 

James Kulbicki’s defense attorneys were unconstitutionally ineffective. We summarily reverse. 

In 1993, Kulbicki shot his 22-year-old mistress in the 

head at pointblank range. The two had been ensnarled in 

a paternity suit, and the killing occurred the weekend 

before a scheduled hearing about unpaid child support. At 

Kulbicki’s trial, commencing in 1995, Agent Ernest Peele 

of the FBI testified as the State’s expert on Comparative

Bullet Lead Analysis, or CBLA. In testimony of the sort

CBLA experts had provided for decades, Peele testified 

that the composition of elements in the molten lead of a 

bullet fragment found in Kulbicki’s truck matched the

composition of lead in a bullet fragment removed from the

victim’s brain; a similarity of the sort one would “‘expect’” 

if “‘examining two pieces of the same bullet.’” 440 Md. 33, 

41, 99 A. 3d 730, 735 (2014). He further testified that a 
 

 

 

 

 

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bullet taken from Kulbicki’s gun was not an “exac[t]” 

match to the bullet fragments, but was similar enough

that the two bullets likely came from the same package. 

Id., at 42–44, 99 A. 3d, at 735–736. After considering this

ballistics evidence, additional physical evidence from Kulbicki’s truck, and witness testimony, the jury convicted Kulbicki of first-degree murder.

Kulbicki then filed a petition for postconviction relief,

which lingered in state court until 2006 when Kulbicki 

added a claim that his defense attorneys were ineffective 

for failing to question the legitimacy of CBLA. By then, 11

years after his conviction, CBLA had fallen out of favor.

Indeed, Kulbicki supplemented his petition once more in 

2006 after the Court of Appeals of Maryland held for the

first time that CBLA evidence was not generally accepted

by the scientific community and was therefore inadmissible. See Clemons v. State, 392 Md. 339, 371, 896 A. 2d 

1059, 1078 (2006). 

Kulbicki lost in the lower state courts and appealed to

the Court of Appeals of Maryland. At that point, Kulbicki

abandoned his claim of ineffective assistance with respect 

to the CBLA evidence, but the high court vacated

Kulbicki’s conviction on that ground alone. Kulbicki’s counsel, according to the court, should have found a report 

coauthored by Agent Peele in 1991 that “presaged the 

flaws in CBLA evidence.” 440 Md., at 40, 99 A. 3d, at 734. 

One of the many findings of the report was that the composition of lead in some bullets was the same as that of

lead in other bullets packaged many months later in a

separate box. Rather than conduct “further research to 

explain the existence of overlapping compositions,” the 

authors “speculated” that coincidence (or, in one case, the

likelihood that separately packaged bullets originated

from the same source of lead) caused the overlap. Id., at 

49, 99 A. 3d, at 739. The Court of Appeals opined that this 

lone finding should have caused the report’s authors to 
 

 

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doubt “that bullets produced from different sources of lead

would have a unique chemical composition,” the faulty 

assumption that ultimately led the court to reject CBLA

evidence 15 years later. Ibid.; see Clemons, supra, 369– 

370, 896 A. 2d, at 1077. The authors’ “failure to fully 

explore the variance,” the Court of Appeals concluded, was 

“at odds with the scientific method.” 440 Md., at 50, 99 

A. 3d, at 740. 

In the Court of Appeals’ view, any good attorney should 

have spotted this methodological flaw. The court held that 

counsel’s failure to unearth the report, to identify one of

its findings as “at odds with the scientific method,” and to 

use this methodological flaw to cast doubt on CBLA during

counsel’s cross-examination of Peele, “fell short of prevailing professional norms.” Id., at 50–53, 99 A. 3d, at 740– 

742. Concluding that counsel’s supposed deficiency was 

prejudicial, the court set aside the conviction and ordered

a new trial. Id., at 56, 99 A. 3d, at 743–744. 

We reverse. The Court of Appeals offered no support for

its conclusion that Kulbicki’s defense attorneys were 

constitutionally required to predict the demise of CBLA. 

Instead, the court indulged in the “natural tendency to

speculate as to whether a different trial strategy might 

have been more successful.” Lockhart v. Fretwell, 506 

U. S. 364, 372 (1993). To combat this tendency, we have

“adopted the rule of contemporary assessment of counsel’s

conduct.” Ibid. Had the Court of Appeals heeded this 

rule, it would have “judge[d] the reasonableness of counsel’s challenged conduct . . . viewed as of the time of counsel’s conduct.” Strickland, supra, at 690. 

At the time of Kulbicki’s trial in 1995, the validity of 

CBLA was widely accepted, and courts regularly admitted 

CBLA evidence until 2003. See United States v. Higgs, 

663 F. 3d 726, 738 (CA4 2011). As the Court of Appeals

acknowledged, even the 1991 report itself did not question

the validity of CBLA, concluding that it was a valid and 
 

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useful forensic tool to match suspect to victim. 440 Md., at 

51, n. 11, 99 A. 3d, at 740, n. 11. Counsel did not perform

deficiently by dedicating their time and focus to elements

of the defense that did not involve poking methodological 

holes in a then-uncontroversial mode of ballistics analysis. 

That is especially the case here, since there is no reason

to believe that a diligent search would even have discovered the supposedly crucial report. The Court of Appeals 

offered a single citation in support of its sweeping statement that the report “was available” to Kulbicki’s counsel

in 1995—a Government Printing Office Web page accessed 

by the Court of Appeals, apparently conducting its own 

Internet research nearly two decades after the trial. Id., 

at 51, and n. 12, 99 A. 3d, at 741, and n. 12; see also Brief 

in Opposition 14. The Web page indicates that a compilation of forensic studies that included the report was “distributed to various public libraries in 1994.” 440 Md., at 

51, n. 12, 99 A. 3d, at 741, n. 12. But which ones? And in 

an era of card catalogues, not a worldwide web, what 

efforts would counsel have had to expend to find the compilation? And had they found it, would counsel really have 

combed through the entire compilation, and have identified the one (of many) findings in one of the reports, the

disregard of which counsel would have recognized to be “at

odds with the scientific method”? And then, would effective counsel really have brought to the attention of the

jury a report whose conclusion was that CBLA was a valid 

investigative technique in cases just like Kulbicki’s? 

Neither the Court of Appeals nor Kulbicki has answers. 

Given the uncontroversial nature of CBLA at the time of 

Kulbicki’s trial, the effect of the judgment below is to 

demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any 

needle there.” Rompilla v. Beard, 545 U. S. 374, 389 

(2005). The Court of Appeals demanded something close 

to “perfect advocacy”—far more than the “reasonable 
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Per Curiam 

competence” the right to counsel guarantees. Yarborough 

v. Gentry, 540 U. S. 1, 8 (2003) (per curiam).

Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and 

to use the report’s so-called methodological flaw against 

Peele on cross-examination. (We need not, and so do not, 

decide whether the supposed error prejudiced Kulbicki.) 

The petition for writ of certiorari is granted, and the 

judgment of the Court of Appeals for Maryland is 

reversed. 

It is so ordered.