United States Court of Appeals
For the First Circuit
No. 06-2358
PETER DUGAS,
Petitioner, Appellant,
v.
JANE COPLAN, WARDEN,
NEW HAMPSHIRE STATE PRISON FOR MEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Chief Judge, and
Lynch and Lipez, Circuit Judges.
Daniel A. Laufer for appellant.
Stephen D. Fuller, New Hampshire Senior Assistant Attorney
General, with whom Kelly A. Ayotte, New Hampshire Attorney General,
was on brief, for appellee.
October 18, 2007
LIPEZ, Circuit Judge. Peter Dugas, convicted of arson in
the New Hampshire Superior Court, asks us to review for a second
time his petition for a federal writ of habeas corpus on the ground
that he received constitutionally ineffective assistance of
counsel. To succeed with his claim, Dugas must demonstrate both
deficient performance by his attorney and prejudice, i.e., "a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694 (1984).
In our first review, we agreed with the district court
that the performance of Dugas's defense counsel was deficient, but
we concluded that the court should not have resolved the prejudice
issue on a summary judgment record. Instead, further proceedings
were needed in the district court to determine whether the
deficiency in counsel's performance resulted in prejudice within
the meaning of Strickland. Dugas v. Coplan, 428 F.3d 317, 333,
341-42 (1st Cir. 2005) ("Dugas IV"). On remand, the district court
allowed further discovery by the parties, considered additional
affidavits, and held an evidentiary hearing. The district court
concluded again that Dugas had not established prejudice within the
meaning of Strickland and denied his habeas petition. Finding no
clear error in the district court's prejudice determination, we
affirm.
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I.
Dugas was convicted of arson for setting a fire that
heavily damaged his family's grocery store, the Dugas Superette, in
Nashua, New Hampshire, on October 23, 1999. Dugas managed the
store and owned a minority share of the business. He told police
that, on the night of the fire, he had locked the store and left
with another employee at approximately 10 p.m. He said he first
learned of the fire when his wife called him at about 11:30 p.m.
while he was picking up his daughter. State fire investigators
found no signs of forced entry into the building, no likely cause
from electrical or mechanical systems, and no accidental cause for
the fire. The investigators concluded that the fire was
intentionally set and that it had been started by igniting an
accelerant on a pile of papers in the store's basement.
The police interpreted enhanced videotape pictures from
the store's security camera to show that Dugas left at 10 p.m., as
he had said, but then reentered the store a few minutes later. The
tape showed Dugas reentering, proceeding to the rear office, then
exiting the rear office and turning off the light. He then
disappeared from view for about one minute, reappeared from the
rear of the store, and moved quickly toward the front door. Dugas
initially denied that he had reentered the store, but at trial he
recalled that he had returned to check on a cash drawer. He denied
that he caused the fire.
-3-
At trial, Dugas's defense counsel, Ray Raimo, attempted
to present two defense theories: first, that the fire had not been
arson, and second, that even if the fire had been intentionally
set, someone other than Dugas had set it.1 Early in the trial,
Raimo made it clear that he was, at least in part, pursuing a "not
arson" theory of defense when he said to the jury: "[W]hat we're
going to be asking ourselves during this trial is how this fire
started and why . . . I want to just make it clear . . . where the
State is bringing in all of these witnesses . . . we think they’re
wrong." To prepare for this line of defense, Raimo interviewed the
state's investigators and found them all to be credible and
formidable witnesses. He toured the fire scene and concluded that,
from a layperson's perspective, the physical evidence seemed
consistent with the state's arson theory. However, he did not hire
an arson expert to testify on Dugas's behalf nor did he consult
with an expert in preparing his cross-examination of the state’s
experts.
1
To support this second defense theory, Raimo attempted to
show that P.J. Kulas, a former employee at the Superette, may have
set the blaze. At trial, he sought to present evidence that Kulas
was nearing the end of a criminal trial on aggravated sexual
assault charges and that he would want to settle old scores he had
against the Dugas family before he was convicted and sent to
prison. Raimo presented testimony regarding Kulas's resentment
toward the Dugases and cross-examined Kulas's wife regarding his
whereabouts on the night of the fire. However, the trial judge did
not allow Raimo to ask about the charges against Kulas or the
trial. Dugas's initial habeas petition challenged the exclusion of
this evidence, but he did not appeal the district court's ruling on
that issue.
-4-
In furtherance of the state's theory that Dugas had set
the fire when he returned to the store shortly after 10:00 p.m., as
shown on the videotape, the state presented six expert witnesses
who laid out the forensic evidence that the fire was intentionally
set using an accelerant such as charcoal lighter fluid. They
testified that the fire began in a stack of papers on the basement
floor and initially flared up but then became oxygen-starved and
smoldered, generating intense heat and smoke but little flame.
Consistent with this theory, the firefighters who responded to the
scene testified that they found the basement door closed and the
basement full of heavy smoke and intense heat. The state also
presented two experts who explained the techniques that had been
used to enhance the exceptionally poor quality of the surveillance
video, as well as an alibi witness for P.J. Kulas, the former store
employee whom the defense theorized had set the fire, see supra
note 1.
The state's strongest evidence against Dugas was its
expert testimony on arson. Raimo confined his challenge of this
evidence to cross-examination of the state's expert witnesses. He
attempted to raise the possibility that the fire had started
accidentally and pointed out some questionable evidence handling
procedures. However, his cross-examination, lacking the aid of an
arson consultant or an expert witness of his own, was problematic:
[T]he focus of Raimo's cross-examination of
the state's experts was unclear, and many of
-5-
the experts' scientific conclusions went
unchallenged. Raimo did not ask the kinds of
questions that a trained fire investigator or
forensic scientist would consider important.
Instead, his questions amounted to an
unfocused set of miscellaneous criticisms and
evinced his lack of scientific knowledge.
Despite his earlier statement to the jury that
he believed that the state's arson experts
were wrong, Raimo presented no alternative
theory of the fire.
Dugas IV, 428 F.3d at 324. After three days of deliberations at
the completion of an eight day trial, the jury returned a guilty
verdict. The court sentenced Dugas to five to ten years in prison.
His conviction was affirmed on direct appeal. State v. Dugas, 782
A.2d 888 (N.H. 2001)("Dugas I").
Dugas then moved for a new trial based on a claim of
ineffective assistance of counsel. In support of his motion, Dugas
offered a report from Michael Higgins, his proposed arson expert.
The state trial court held a hearing on the motion, taking
testimony from Higgins and Raimo, Dugas's trial counsel. Raimo
said at the hearing that he had been over-confident in the strength
of Dugas's defense and that he was "still shocked by the verdict."
He admitted that he had no scientific background or technical
knowledge regarding arson. He explained that, although there was
no financial impediment to hiring an expert, he had thought it
might be a problem to do so because of a requirement, as he saw it,
that he notify the state in order to have access to the fire scene.
Then the state would have wanted to depose or talk with his expert.
-6-
The state court concluded that Raimo had considered the benefits
and perils of hiring an arson expert and made an appropriate
strategic decision not to do so. The state trial court thus held
that Raimo's performance was not constitutionally deficient, and
denied Dugas's motion for a new trial. State v. Dugas, No. 98-S-
1899 (N.H. Super. Ct. Aug. 12, 2002) ("Dugas II"). Because the
court found that Raimo’s performance had not been deficient under
the first prong of Strickland, it did not make any findings
regarding prejudice. The New Hampshire Supreme Court declined to
grant review.
Dugas then filed a petition in the district court for a
federal writ of habeas corpus. The district court reviewed the
trial record, affidavits, and hearing testimony from the state
court proceedings. On summary judgment, the district court held
that Raimo's performance had been constitutionally deficient.
Dugas v. Warden, No. 03-376-JD, slip op. at 9-12 (D.N.H. May 21,
2004) ("Dugas III"). The district court explained:
Based on the record, the state court's
conclusion that Raimo carefully investigated
the case and made a tactical decision not to
consult with or hire an expert is both an
unreasonable determination of the facts and an
unreasonable application of the federal
standard. . . . Raimo apparently believed . .
. that he would have had to make his expert
available to the state for questioning,
whether or not he intended to call the expert
to testify at trial, which would be
detrimental if the expert agreed with the
state’s experts. The state court recognized
that ordinarily the defense would not have to
-7-
disclose an expert who was used only for
consultation but concluded, without
explanation, that the necessary disclosure in
this case presented a "peril" to the defense.
Given the lack of legal support or
explanation, the state court's conclusion was
unreasonable that the defense would have faced
a “peril” if Raimo consulted an expert.
Dugas III, slip op. at 11-12 (citations omitted). The district
court then turned its focus to the prejudice analysis required by
Strickland. Reviewing the state court record de novo, the court
concluded that "Higgins's opinions do not undermine the court’s
confidence in the outcome of the criminal trial." Id. at 13-16.
Therefore, the district court denied Dugas’s habeas petition.2 Id.
at 18.
On appeal, a majority of the panel agreed with the
district court that Raimo's performance was constitutionally
deficient. However, turning to the prejudice prong of the
Strickland analysis, we held that the district court had erred in
granting summary judgment in favor of the state. We remanded the
case to the district court for further evidentiary development on
the issue of prejudice, explaining:
We perceive a distinct possibility that, if
Raimo had consulted an arson expert, the
outcome of the trial would have been
different. We cannot say, as a matter of law,
that this possibility does not rise to the
level of "a probability sufficient to
undermine confidence in the outcome." Neither
2
The district court also rejected Dugas's Confrontation Clause
claim. Dugas did not appeal that decision.
-8-
can we say, as a matter of law, that it does
rise to such a level.
Dugas IV, 428 F.3d at 341 (quoting Strickland, 466 U.S. at 694)
(internal citation omitted). Specifically, we noted three major
issues that had been highlighted in Higgins's report. First, he
alleged that there had been flaws in the state forensic chemist's
analysis of samples taken from the fire scene. Second, he posited
that the fire had been much faster-burning than the state alleged
and pointed to potential sources of ventilation. Third, he
identified evidence of smoke shadows, i.e., clean spots on the
walls and floors, indicating Dugas's alleged path to the basement
had been blocked by boxes on the night of the fire. We held that
"these three issues, taken together . . . [were] sufficient to
raise a genuine dispute of material fact concerning prejudice."
Id. at 335. As a result, we instructed the district court to order
the state to turn over all of the evidence from the fire scene so
that Higgins could conduct a more thorough analysis. We then asked
the district court to "consider whether Higgins's analysis would
meaningfully challenge the state's view of the evidence." Id. at
342. We emphasized that "[t]he case for prejudice here is close;
we do not conclude that there was prejudice, but only that, in the
circumstances of this appeal, Dugas has raised sufficient doubts
about the outcome to avoid summary judgment." Id. at 343.
-9-
The district court followed our instructions, ordering
the evidence turned over to Higgins for testing and analysis.3 The
court then considered Dugas's petition for habeas corpus with the
benefit of additional affidavits from Higgins and two state fire
investigators. It also conducted an evidentiary hearing at which
the experts from both sides testified in response to questions from
the court and counsel. The district court concluded that
"Higgins's opinions would not have been helpful to the defense"
because they are "speculative, inconsistent, contrary to the
factual evidence, and significantly less credible and less
persuasive than the opinions given by [the state's experts] at the
trial and by [the state's experts] at the evidentiary hearing."
Dugas V, slip op. at 38. Thus, the district court denied Dugas's
habeas petition and this appeal followed.
II.
The standards of review applied in the earlier stages of
this case and in the appeal before us today require some
explanation. Federal review of habeas petitions is normally
governed by the high level of deference to state court findings set
3
The charcoal strips and carbon disulfide vials prepared by
Morris Boudreau, the state's forensic analyst, during his testing
of the fire debris were not found following the remand. As such,
Higgins never examined them. However, as we explain below, testing
the original charcoal strips would not have materially aided
Higgins in his contention that the fire debris had been
contaminated through improper collection procedures. Thus, the
loss of the strips and vials is immaterial to our analysis.
-10-
forth in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. AEDPA allows federal
courts to grant habeas relief after a final state adjudication only
if the state court proceedings "resulted in a decision that was
contrary to, or involved an unreasonable application of clearly
established federal law, as determined by the Supreme Court" or was
based on an "unreasonable determination of the facts." 28 U.S.C.
§ 2254(d). However, this standard applies only when the claim
being reviewed at the federal level was "adjudicated on the merits
in State court proceedings." Id. When the state court has never
addressed the particular federal claim at issue, federal review is
de novo. Pike v. Guarino, 492 F.3d 61, 67 (1st Cir. 2007). As we
have noted, a federal court "can hardly defer to the state court on
an issue that the state court did not address." Fortini v. Murphy,
257 F.3d 39, 47 (1st Cir. 2001).
In its first review of Dugas's habeas petition, the
district court applied the AEDPA standard of deference to state
court findings. That deference did not prevent the district court
from concluding that "the state court's conclusion that Raimo
carefully investigated the case and made a tactical decision not to
consult with or hire an expert is both an unreasonable
determination of the facts and an unreasonable application of the
federal standard." Dugas III, slip op. at 11. Because the state
court had never reached the question of prejudice, the district
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court applied a de novo standard to the state court record and
concluded on summary judgment that Dugas had not been prejudiced by
Raimo's deficient representation.
At that stage in the proceedings, we reviewed the
district court's decision de novo. Dugas IV, 428 F.3d at 327. We
recently articulated the rationale for our de novo review in this
context in another case:
When the district court undertakes no
independent factfinding in a habeas case, we
are effectively in the same position as the
district court vis-à-vis the state court
record and have the ability to review that
record from the same vantage point.
Consequently, the district court's recension
of that record will engender de novo review.
Pike, 492 F.3d at 68. As noted, we found the state court record
sufficient to "raise a genuine dispute of material fact concerning
prejudice" and remanded to the district court for further
evidentiary development. Dugas IV, 428 F.3d at 341. The district
court, following our instructions, allowed Dugas additional
discovery and held an evidentiary hearing at which both Dugas's
expert and the state's experts provided new testimony.4
4
AEDPA limits the availability of evidentiary hearings during
federal habeas proceedings when a petitioner has failed to develop
the factual basis of the claim at the state level. 28 U.S.C. §
2254(e)(2). However, the lack of factual development on the
prejudice issue here was due to the state court's decision not to
reach that issue and not because of any lack of diligence by Dugas.
Thus, Dugas is not required to meet the stringent requirements of
§ 2254(e)(2) to obtain such a hearing. See Williams v. Taylor, 529
U.S. 420, 431-33 (2000).
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The new fact-finding by the district court alters the
standard of review that we must apply in this second appeal. Now
that the district court has held its own evidentiary hearing, our
review is comparable to the review that would apply if we were
considering a direct criminal appeal or a § 2255 petition after a
federal criminal conviction. See Dugas IV, 428 F.3d at 343; see
also Pike, 492 F.3d at 68, 75; 2 Steven Alan Childress & Martha S.
Davis, Federal Standards of Review § 13.06, at 13-50 (3d ed. 1999).
When the district court has held an evidentiary hearing and made
its own determinations as to the weight of the evidence and the
credibility of witnesses, its findings are entitled to significant
deference. Pike, 492 F.3d at 68; see also McNair v. Campbell, 416
F.3d 1291, 1297 (11th Cir. 2005); McGregor v. Gibson, 248 F.3d 946,
951 (10th Cir. 2001). Thus, we conduct a de novo review of legal
issues, but disturb the district court's factual conclusions only
if they are clearly erroneous. Pike, 492 F.3d at 75; United States
v. DiCarlo, 575 F.2d 952, 954-55 (1st Cir. 1978)(applying clearly
erroneous standard to district court findings in § 2255
proceeding). A finding of fact is clearly erroneous only when,
upon a thorough assessment of the record, the reviewing court is
left with "the definite and firm conviction that a mistake has been
committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948); see also Pike, 492 F.3d at 75.
-13-
Before applying this standard of review in the present
case, we have one further complexity to address — the interplay
between the district court's factual findings on disputed issues,
all of which are subject to the clearly erroneous standard, and its
ultimate determination on the prejudice issue, which is often
characterized as a mixed question of law and fact. See, e.g.,
Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. 1994)(citing Strickland,
466 U.S. at 698) ("[A]n inquiry into the effectiveness of counsel
is almost always a mixed question of law and fact."). The standard
of review we apply to mixed questions of fact and law "depends, in
the last analysis, on the extent to which a particular question is
fact-dominated or law-dominated." Pike, 492 F.3d at 68.
We remanded Dugas's petition to the district court
because we could not say, as a matter of law, that Raimo's failure
to consult an arson expert prior to trial rose to the level of
prejudice required by Strickland. Dugas IV, 428 F.3d at 341.
Instead, we characterized the prejudice inquiry as raising a
"genuine factual issue." Id. On remand, we instructed the
district court to provide "the answer to a specific question — is
there a reasonable probability that Higgins's analysis of the
chemical evidence and the use of evidence of smoke shadows and
ventilation in cross-examining the fire investigators could have
affected the outcome of the trial?" Id. at 342-43. The answer to
this question required the district court to hear new testimony,
-14-
consider its weight and credibility, and make numerous factual
determinations that the trial judge is uniquely suited to make.
See Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985)
("[O]nly the trial judge can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener's
understanding of and belief in what is said."); González-Soberal v.
United States, 244 F.3d 273, 279 (1st Cir. 2001) (remanding the
prejudice question to the district court because that court "has a
better perspective from which to evaluate the possible impact of
[the omitted evidence] on the jury and its verdict"). Given the
fact-dominated nature of the prejudice inquiry for which we ordered
remand here, we review the district court's decision on prejudice
for clear error.
Dugas takes a decidedly different view of the role of the
district court on remand. He argues that "[w]hen the district
court found Higgins['s] testimony to be admissible [because he was
a qualified expert], it should have left the weight of that
evidence to the jury and issued a writ of habeas corpus requiring
a new trial." However, this argument misunderstands the prejudice
inquiry required by Strickland and the purpose of our remand. We
did not ask the district court to make a determination on the
admissibility of Higgins's testimony. Indeed, Higgins's
qualifications had never been questioned at any stage in these
proceedings. If the mere admissibility of Higgins's testimony had
-15-
been determinative here, we would have simply granted Dugas's
petition in the first instance rather than remanding for additional
factual development. The district court's task on remand was to
apply the prejudice prong of the Strickland test to a more
developed record. In doing so, the district court was entitled —
indeed, required — to make a judgment about the persuasiveness of
Higgins's testimony and then factor that assessment into the
prejudice analysis. Moreover, Dugas does not argue, nor could he,
that the failure to introduce a qualified expert's testimony
amounts to prejudice per se. See Scarpa, 38 F.3d at 13-14
("[A]ttorney error, even when egregious, will almost always require
analysis under Strickland's prejudice prong.").
In the Strickland analysis, prejudice exists when "'there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
Dugas IV, 428 F.3d at 334 (quoting Strickland, 466 U.S. at 694).
"A reasonable probability is one 'sufficient to undermine
confidence in the outcome.'" González-Soberal, 244 F.3d at 278
(quoting Strickland, 466 U.S. at 694). A showing of "'some
conceivable effect on the outcome'" is not enough. Id. (quoting
Strickland, 466 U.S. at 693). However, there is no requirement
that "the defendant prove that the errors were more likely than not
to have affected the verdict." Id. Instead, Strickland requires
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that we focus on the "'fundamental fairness of the proceeding.'"
Id. (quoting Strickland, 466 U.S. at 696).
"In weighing the prejudicial effect of counsel's errors,
we must consider the totality of the evidence before the judge or
jury." Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). In
cases where defense counsel's deficient performance resulted in a
failure to introduce particular evidence or to challenge the
credibility of the government's witnesses on cross-examination, we
have outlined three factors that need to be considered in the
prejudice determination: first, the strength of the prosecution's
case; second, the effectiveness of the defense that was presented
at trial; third, the potential value of the new evidence and new
avenues for cross-examination "in undermining the credibility of
the government witnesses' testimony." González-Soberal, 244 F.3d
at 278.
In our first review of this case, when the issue was the
appropriateness of the summary judgment disposition, we said that
"[t]his case lay on a knife edge, and it would not have taken much
to sway at least some jurors towards acquittal." Dugas IV, 428
F.3d at 336. In that circumstance, we noted that "the threshold
for prejudice is comparatively low because less would be needed to
unsettle a rational jury" and, as a result, summary judgment was
inappropriate. Id. at 336, 341. Nonetheless, this assessment did
not alter the responsibility of the district court on remand to
-17-
decide in the first instance if Higgins's theories, now elaborated
in supplemental affidavits and at an evidentiary hearing, "would
have shaken the jury's belief in the essential elements" of the
government's case at trial. See Stephens, 294 F.3d at 226.
III.
On remand, the district court considered two additional
affidavits from Higgins. These affidavits were based on his
initial inspection and testing of the fire scene in August 2000 and
on his examination in December 2005 and January 2006 of the store's
electrical system. Higgins also examined eleven samples taken from
the fire that had been previously tested by the state's expert and
evidence held by the Nashua Police Department. The court also
considered new affidavits from Richard Wood, a certified fire and
explosion investigator, and Linda Bouchard, a Criminalist II with
the New Hampshire State Police Forensic Laboratory, filed by the
state in response to Higgins's analysis. Additionally, the court
held an evidentiary hearing at which Higgins, Wood, and Bouchard
testified in response to questions from the court and counsel.
Higgins's affidavits and hearing testimony challenged the
state's evidence on three grounds: the collection and chemical
analysis of the samples from the fire scene, the origin and
development of the fire, and the condition of the fire scene during
the jury view. The district court concluded that Higgins's
testimony on these three points was insufficiently persuasive to
-18-
undermine the evidence presented by the government's witnesses and
that, as a result, Dugas had not been prejudiced by his defense
counsel's deficient performance. As we explain below, we find no
clear error with respect to this conclusion or the factual findings
on which it is based.
A. Chemical Analysis
In our first review of this case, we were particularly
concerned about the flaws Higgins had identified in the state
forensic chemist's analysis of the fire debris. Dugas IV, 428 F.3d
at 334. We explained our concern by quoting Higgins's state court
affidavit:
[The applicable standard] requires the exact
identification of flammable liquids
(accelerants). [The state's experts'] report
. . . gives a conclusion that they detected
medium petroleum distillates . . . As you can
see they said they detected but nowhere does
it say they identified. In other words, their
conclusion says they might have a flammable
liquid, but what they fail to say is that they
may not have one.
Id. at 336. However, following our remand, Higgins himself
examined the chromatograms from the debris samples and identified
the flammable liquid on two of them as charcoal lighter fluid. He
testified at the evidentiary hearing that two of the chromatograms
were "relatively identical" to the reference chromatograms the
state had made from charcoal lighter fluid taken from the store.
Thus, Higgins himself now seems to agree that even if the standards
requiring specific identification of an accelerant had been
-19-
followed, the resulting testimony would not have helped the
defense.
In his testimony at the evidentiary hearing, Higgins
instead pressed an argument that the chromatograms were abnormal in
that they contained some of the lighter components of the
accelerant. Lighter components, he explained, generally burn more
quickly than the heavier ones and so the presence of the lighter
components suggests that the sample had been contaminated or
improperly collected. Bouchard effectively countered this
contention at the hearing. She said that everything she saw in the
chromatograms fell into the category of medium and not light
hydrocarbons. Furthermore, if the debris had been thoroughly
saturated with accelerant and not completely charred, some of the
lighter hydrocarbons could be expected to remain in the sample. In
addition, she explained that any minor discrepancies between the
debris chromatogram and the reference chromatogram could best be
explained by the fact that the charcoal lighter fluid sample could
be tested directly while the fire debris had to be heated in the
lab to extract the chemicals in it and transfer them to a charcoal
strip for testing. This means that "the chromatogram that you are
going to get as a result of doing this kind of extraction is not
going to be a true representation of that liquid if you ran the
liquid straight." Bouchard also indicated that, because of this
extraction process, a direct examination of the charcoal strips,
-20-
which had been lost by the time of our remand, would not have been
helpful in determining whether some form of contamination of the
evidence had occurred.
Weighing Higgins's theory of contamination against this
evidence, the district court concluded that Higgins's critique of
the chemical analysis by the state is "unpersuasive and
insufficient to support a prejudice determination." Dugas V, slip
op. at 33. This finding is not clearly erroneous.
B. Origin and Development of the Fire
At trial, the state's theory was that the fire at the
Dugas Superette had been lit by Dugas a few minutes after 10 p.m.
and that by 10:44 p.m. it had grown hot enough to short circuit the
wires powering an electric clock in the store. The state's experts
concluded that the fire had begun quickly, generating substantial
heat and smoke, but that, lacking an oxygen source, the fire had
been reduced to a smolder when firefighters arrived just before
midnight.
Both Higgins and the state appear to agree that if the
fire had had a source of oxygen and had begun at roughly 10 p.m.,
it would have consumed the entire store before the firefighters
arrived. The state explained that the entire store was not
engulfed because of the lack of ventilation in the basement. In
his affidavits, Higgins asserted that there was, in fact, a source
of oxygen for the fire. He theorized that the fire was actively
-21-
burning and growing when the firefighters arrived, but that the
basement was too dark and the smoke too thick for the firefighters
to properly assess this fact. Therefore, he contended, the fire
must have started much later than the state argued at trial, and
long after Dugas had left the building.5
To support his theory, Higgins asserted that the basement
door was partially open during the fire. The door to the basement
at the Dugas Superette has two halves split vertically, each about
eighteen inches wide, which may be opened independently. Higgins
contended that the physical evidence shows that the right side of
the door was open during the fire. The left side of the doorjamb
is clean, indicating that it was closed and therefore protected
from the smoke and heat, while the right side of the jamb is
stained. He also pointed to a piece of melted plastic adhered to
5
A surveillance video introduced at trial showed Dugas leaving
the store at 10 p.m., briefly reentering, and then leaving again a
few minutes later. The state's theory at trial was that he set the
fire during the brief reentry. The surveillance video system used
by the store was outdated and barely functional. The video speed
had to be adjusted to correspond to real time by a forensic video
analyst, and the image had to be enhanced to make it more legible.
Nonetheless, it was barely viewable and undated. Despite these
flaws, Dugas admitted at trial to the sequence of events as
depicted in the tape. Thus, for the purpose of this prejudice
review, the weakness in the videotape evidence is immaterial.
Although Higgins never stated a particular time at which he
theorizes the fire began, he seemed to suggest that the fire began
sometime after 10:30 p.m. This timing, he claimed, undermined the
state's case by showing that the fire started well after the
videotape evidence showed Dugas leaving the store at a few minutes
past 10 p.m.
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the basement side of the right door as evidence that it was open
during the fire, allowing the plastic to melt onto it.
Wood, the state's fire investigator, asserted at the
evidentiary hearing that the physical evidence shows that both
sides of the door were closed when firefighters arrived. He
explained the staining on the right side of the doorjamb by noting
that one side of the door was propped open by firefighters' hoses
after they began to battle the fire, allowing smoke, heat, and soot
to stain the jamb on that side. Additionally, he noted that the
melted plastic banner extended across both sides of the door,
indicating that the door was fully closed when the banner first
melted.
Higgins's ventilation theory rests on his contention that
the basement door was open, acting as a chimney and allowing fresh
air to be drawn in through a basement vent. As the district court
noted, this theory directly contradicts the testimony of Lieutenant
Keith Anderson of the Nashua Fire Department, who asserted at trial
that the door to the basement was closed when he arrived and that
the smoke and heat conditions worsened as soon as the basement door
was opened. To counter this testimony, Higgins speculated that the
firefighters did not realize that the door had two halves and that
one half was already opened when they arrived.
The district court found that Higgins's speculation would
be unlikely to persuade the jury to discredit Anderson's clear and
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specific testimony that the door was closed when firefighters
arrived, and found Wood's explanations for the staining on the
doorjamb and the position of the banner more persuasive. As a
result, the court found that "Higgins's [ventilation] theory is
not supported by the facts and is otherwise not credible." There
is no clear error in this finding.
C. Condition of the Fire Scene During the Jury View
Higgins also testified that the state had misled the jury
during its view of the fire scene by not placing boxes precisely
where they had been on the night of the fire. Higgins contended,
based on his observation of smoke shadows, i.e. clean spots on the
otherwise soot-covered walls and floor, that boxes of cooking oil
were stacked three high in the narrow passage between a sandwich
display case and a fish cooler, leaving only about four and a half
inches between the boxes and the case. He insisted that, if these
boxes had been present during the jury view, the jury would have
understood that "the state's theory of how Peter Dugas committed
arson could not possibly be correct." He asserted that it was
"physically impossible for Dugas to have taken the path within the
store the state claimed he took the night of the fire."
However, Wood explained at the evidentiary hearing that
even with the boxes stacked as Higgins claims, passing between the
boxes and the cooler would still not be "physically impossible."
Wood described the fish cooler as "tapered from the base up to the
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top as most deli coolers are" so the passage was much narrower at
the floor than at waist height. Wood testified: "Certainly you
could put your foot in that space between the box and the fish
cooler and then fit your upper body through the upper portion."
At trial, Dugas was questioned about whether he could
have fit through this narrow opening between the fish cooler and
the display case. He answered, rather equivocally, "Not very
well." The prosecutor asked, "And were there things in the way?"
Dugas responded, "Yeah, there's a whole bunch of oil boxes there .
. ." Dugas was even asked by the prosecutor if the boxes were
still where they had been on the night of the fire. Dugas
responded, "I don't remember. Mostly everything is still there.
I know my dad took a box of oil out of there at some point but --"
Then the prosecutor asked again, "Could you have squeezed through
there if you wanted?" Dugas again replied, "Not very easily. It's
a tight space and I'm not a small guy." As the district court
noted, this exchange illustrates that the jury already had before
it the issue of whether the passageway between the cooler and the
display case was too narrow for Dugas to pass through. Even when
asked directly, Dugas never asserted that passing through with the
boxes in place would have been "physically impossible."
Weighing Higgins's assertions regarding the location of
the boxes against this testimony by Wood and Dugas, the district
court concluded:
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If Higgins's opinion about the stacked boxes
had been available to present at trial, it
might have bolstered Dugas's testimony that he
could not have easily squeezed through that
space, assuming Dugas would agree that the
boxes were stacked as Higgins suggests.
Higgins's opinion, even if it were accepted as
true, however, does not prove that the state's
theory was impossible. As best, it is
cumulative of Dugas's own testimony that he
could not have fit through that area easily or
very well. As such, Higgins's opinion does
little, if anything, to undermine confidence
in the jury's verdict.
Dugas V, slip op. at 37. There is no clear error in this finding.
IV.
We remanded this case to the district court for further
proceedings that would permit the district court to determine
whether "Higgins's analysis would meaningfully challenge the
state's view of the evidence" and whether "'there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Dugas IV,
428 F.3d at 342 (quoting Strickland, 466 U.S. at 694). At the
conclusion of these proceedings, with a thoughtful explanation of
its reasoning on each issue before it, the district court
determined that Higgins's theories were not persuasive enough to
meaningfully undermine the government's case against Dugas and
affect the outcome of the trial. Therefore, the district court
concluded that Raimo's deficient representation did not prejudice
Dugas within the meaning of Strickland. There was no clear error
in this determination.
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Affirmed.
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