Dugas v. Coplan

United States Court of Appeals
For the First Circuit

No. 04-1776

PETER DUGAS,

Petitioner, Appellant,

v.

JANE COPLAN, WARDEN OF THE 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

Torruella, Lipez, and Howard, Circuit Judges.

Daniel A. Laufer for appellant.
Stephen D. Fuller, Senior Assistant Attorney General, with
whom Kelly A. Ayotte, Attorney General, was on brief, for appellee.

October 31, 2005
 LIPEZ, Circuit Judge. Peter Dugas was convicted of arson

in New Hampshire state court. He petitioned for a federal writ of

habeas corpus on the grounds, inter alia, that he had received

constitutionally ineffective assistance of counsel under Strickland

v. Washington, 466 U.S. 668 (1984). The district court found that

trial counsel's performance was deficient, but found no prejudice,

granted summary judgment against Dugas, and denied the petition.

We agree with the district court that counsel's performance was

deficient, but conclude that further proceedings are needed in the

district court to determine whether the error resulted in prejudice

within the meaning of Strickland.
I.

Peter Dugas was the manager and part owner of Dugas

Superette, a grocery store in Nashua, New Hampshire, owned

principally by Dugas's father, Edgar Dugas.1 On October 23, 1998,

just before midnight, the Nashua Fire Department responded to a

three-alarm fire at the store. The firefighters forced entry

through locked doors and observed heavy smoke throughout the
building. They opened a closed (but unlocked) door to the basement

and discovered considerably thicker smoke and extreme heat, which

indicated that the source of the fire was downstairs. They

ventilated the basement and extinguished the fire.

1
We use the term "Dugas" to refer to petitioner-appellant
Peter Dugas, and specify "Edgar" when we mean his father.

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A. The Fire Marshal's Investigation

In the early morning of October 24, Inspectors Brian

Donaldson and Richard Strand of the Nashua Fire Marshal's Office

arrived to investigate the fire. The basement was still full of

smoke, and the firefighters were ventilating the basement with a

mechanical fan in the stairway. After examining the exterior of

the building and allowing some time for the smoke to dissipate, the

inspectors entered the building and quickly determined that the

fire had originated in the basement. They examined certain obvious
potential sources -- the furnace, an oil tank, the hot water tank,

some electrical equipment, and an electrical panel -- and ruled

them out because that area of the basement had not suffered any

charring or flame damage. Further investigation narrowed the

source of the fire to the southeast corner of the basement, in a

pile of papers on the floor in front of a set of shelves. They

separated the pile of papers into smaller piles in a center aisle

in the basement so as to better examine the stack, and determined

that the outer edges of the pile were burned, but the inside, where
the pile had been tightly packed, was not burned. They also

observed an electric clock that had stopped at 10:44 PM, apparently

because a circuit breaker tripped after fire damaged the wires.

Using techniques of fire "cause and origin"

investigation, the inspectors ruled out natural causes (such as

lightning, magnified sunlight, bacterial spontaneous combustion, or

static electricity) and accidental causes (such as mechanical

devices, heating devices, electrical equipment or wires, or

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discarded cigarette butts). They noted that the basement was

filled with thick smoke and unusually high carbon monoxide levels.

Since there was little flame damage outside the immediate area of

the pile, the inspectors theorized that the fire had begun quickly

but then became oxygen-starved and reduced to a smolder, which was

how the firefighters found it.

When the inspectors concluded that the fire had been

intentionally set, they decided to gather further evidence. They

summoned a canine handler and fire investigator with the State Fire
Marshal's Office, who arrived with a dog trained to detect

petroleum distillates, which can be used as fire accelerants. The

dog "alerted" to parts of both the original pile of papers and the

parts that had been moved aside. The inspectors removed samples of

those sections for laboratory analysis, and placed them in five

airtight containers.

Inspector Strand brought the samples to Morris Boudreau,

a forensic chemist at the State Police Forensic Laboratory.

Boudreau detected that some, though not all, of the samples
contained ignitable liquids: medium petroleum distillates in some,

and normal alkanes in others.2 Both classes of fluids can be used

as fire accelerants.

2
Medium petroleum distillates are typically found in paint
thinners, mineral spirits, and charcoal lighter fluid. Normal
alkanes, which are further refinements of medium or heavy petroleum
distillates, are typically found in solvents or lamp oils.

-4-
B. The Insurance Investigation

The companies that insured the market and separately-

owned video and pizza concessions within it hired James Eddy, a

private fire investigator, to conduct an independent cause and

origin investigation of the fire. Eddy arrived at the market on

October 27 and, like the Nashua fire inspectors, quickly determined

the approximate area of the basement where the fire originated.

Like them, he eliminated natural and accidental causes early on,

and concluded that the fire had been intentionally set at the pile
of papers. Out of an abundance of caution he contacted Nathaniel

Johnson, an electrical engineer specializing in electrical fire

investigation, to examine the electrical system. Johnson

determined, after exhaustive study of every inch of wire in the

basement, that it was definitely not an electrical fire.

Eddy also took samples of the charred paper, wood, and

other items from the basement for analysis at an independent

laboratory in Massachusetts. However, he never had the chance to

send the samples to that lab. The Nashua Police Department wrote
to the store's insurers, requesting all evidence that Eddy had

collected. The insurers directed him to comply. He never received

any information from the state regarding the analysis (if any)

performed on his samples, but later testified that "it's my

understanding that all of my samples were negative."
C. The Videotape

The store had a video surveillance system, albeit, as it

turns out, a barely serviceable one. The system used a multiplexer

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to produce images from several different cameras and record them on

an obsolete, belt-driven video tape recorder that could no longer

generate an accurate synchronization signal and had other flaws.

Worse yet, the store's practice was to continually rewind and re-

record over the same tape, which not only degraded and wore out the

tape (the image had become virtually undecipherable) but also meant

that a recording from one day might be (and, in fact, was) followed

with a leftover recording from an earlier day. Moreover, since the

system did not time stamp the recordings, it was impossible to
determine when a given image was recorded. In short, the system

produced unreadable, undated, and difficult-to-interpret images.

The Nashua police hired an electronic surveillance

specialist to attempt to decipher the tape, but it was beyond even

his technical capabilities. He referred it to Tom Edwards, a

forensic video analyst who specializes in image enhancement.

Edwards found that the tape's timing was off (i.e., one second on

the tape did not correspond to one second in the real world) and

that, because of the multiple rerecordings, the sequencing was
unreliable as well (i.e., the fact that one image came after

another on the tape did not mean that the second image actually

happened after the first image; in fact, it could have been a

leftover from a previous taping days or months before). Edwards

attempted to extract a usable sequence of events from the tape,

adjust the speed to match real time, and enhance the images to make

them more legible. The enhanced videotape appeared to show that

Dugas left the store for the night with another employee; returned

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three minutes later; entered an office at the back of the store;

reappeared sixty-two seconds later; briefly appeared in the

camera's field of view again; and then ran towards the back of the

store. The tape then went blank, presumably because of a loss of

power to the camera. Because it was undisputed that Dugas and the

employee had left the store just minutes after 10:00 PM, the police

interpreted the events shown on the tape as happening at that time.
D. The Police Investigation

Dugas was present outside the market while the
firefighters were putting out the blaze. He spoke briefly with

Inspector Strand at the scene and signed a form consenting to a

search to allow the inspectors to further investigate the fire.

Inspector Strand described Dugas as "visibly shaken by the fire,"

but cooperative regarding Strand's questions. Dugas was also

formally interviewed by Eddy (the private fire investigator working

on behalf of the insurers) and a special investigator directly

employed by the insurers.

On October 24, the day after the fire, a Nashua police
fingerprint specialist visited the scene. He took two bottles of

lighter fluid for latent fingerprint analysis. One bottle did not

reveal any prints, and the other revealed prints that were unusable

due to their poor quality. Although a Nashua police detective

visited Dugas at his house that same morning, the detective did not

ask for consent to search the house, nor for the clothing Dugas had

worn the previous night.

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 Detectives twice interviewed Dugas and tape-recorded the

interviews. Each time, Dugas described how, on the night of the

fire, he had locked up the store shortly after 10:00 PM and left

the building with an employee. He described driving to the Nashua

Mall to make his night deposit at about 10:20 or 10:25, then

passing by the store again on his way home about ten minutes later.

He left home again at approximately 11:30 PM to pick up his

daughter at the mall. Just after he picked her up, his wife called

him on his cellular phone to tell him about the fire. He stated
that he had not returned to the store after locking up.

In the second interview, which was conducted after the

police had received the enhanced videotape, the police told Dugas

that the video showed him exiting and then re-entering the store

seven or eight minutes later, and confronted him with pictures

taken from the video. Dugas insisted that he did not reenter the

store after locking up for the night, and noted that the video

might not have been from that night.
E. The Defense Investigation

Realizing that he was a suspect, Dugas hired attorney Ray

Raimo to represent him. Raimo was an experienced criminal defense

attorney and former prosecutor, though this was apparently his

first arson case. On December 15, 1998 -- less than two months

after the fire -- a state grand jury indicted Dugas on one count of

arson.

Like most attorneys, Raimo had no training in fire

investigation; his scientific background consists of "high school

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chemistry and physics."3 As part of his pretrial investigation,

Raimo spoke to Donaldson (the Nashua fire inspector), Boudreau (the

state forensic chemist), Eddy (the private fire investigator), and

Johnson (the electrical fire investigator), and found all of them

to be credible and formidable witnesses. He also walked through

the scene, and, in his lay opinion, concluded that the physical

evidence was consistent with the state's expert testimony. He

realized that the impression a layman might get from the scene was

"it must be arson."
Raimo did not, however, conclude that the "not arson"

line of defense lacked merit. While he noted that "it seemed like

the State had some fairly decent testimony," he recognized that

"[t]heir expert testimony . . . conflicted a bit, and we thought we

could use that." He discussed the strengths of the state's experts

with fellow defense attorneys (in what he described as "casual

discussions with friends") and recalls discussing the idea that "we

were going to need somebody . . . who was at least as well

qualified" as the state's experts to testify for the defense. He
"read some materials" on arson (he could not recall the exact

sources) and admitted that he did not understand the basic

terminology or techniques of arson investigation. Viewing the "not

arson" defense as a challenge, Raimo also decided "that we weren't

going to just rest on the defense it wasn't arson," and chose to

3
As he later stated, "I wouldn't know a hydrocarbon if I fell
over one."

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also pursue the defense that, if the fire was arson, another person

caused it.

Raimo followed up leads and issues pertaining to the

defense that another person was responsible for the fire. Raimo

did not, however, conduct further investigation into the "not

arson" defense. Despite his earlier consideration of the

possibility, Raimo did not hire an expert to testify for the

defense about the state's evidence on arson. He did not consult an

expert in preparing for his cross-examination of the state's arson
experts. Nor did he conduct the research required to understand

the principles of arson investigation on his own. Instead, in the

end, his investigation of the arson issue consisted of his

interviews with the state's experts, his reading of "some

materials" about arson, his assessment of the experts' testimony

and the fire scene based on his own inadequate understanding of

arson forensics, and the advice about cross-examination that he

gleaned from his "casual discussions" with other defense attorneys.

F. The Trial

Early in the trial, just before the jury viewed the scene

of the fire, Raimo told the jury that "what 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."

However, the basis of Raimo's challenge to the state's evidence on

arson was less than clear and remained unclear.

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 The state's case against Dugas consisted of several

expert witnesses who testified that the fire was an arson; a

videotape that showed Dugas leaving the store and then returning a

few minutes later; motive evidence regarding recent troubles in

Dugas's life; and testimony of the wife of Paul "P.J" Kulas, the

man who Dugas argued was the real perpetrator of the crime, to

establish an alibi for Kulas.

The state's strongest evidence was its expert testimony

on arson; the balance of its evidence was relatively weak. The
videotape linking Dugas to the scene of the fire was barely

viewable and undated. The state's motive evidence was problematic:

Dugas's marriage was strained; his wife had recently spent three

weeks in an alcohol treatment center; he had some credit card debt;

he was working long hours; and he had "butted heads" with his

father because Dugas wanted to transform the store from a general

grocery to a more specialized seafood store, which his father

resisted. But the state never presented a theory of how burning

the store could possibly benefit Dugas.
In establishing the defense's case, Raimo confined his

challenge of the state's arson evidence to cross-examination of the

state's expert witnesses. Through cross-examination, he attempted

to raise the possibility that the fire had started accidentally.

Raimo pointed out some arguably questionable evidence handling

procedures, and explored on cross-examination something to which

Boudreau had testified on direct: that normal alkanes could be

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found in printing ink and medium petroleum distillates could be

found in pesticides.4

However, the focus of Raimo's cross-examination of the

state's experts was unclear, and many of the experts' scientific

conclusions went unchallenged.5 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.

Raimo did, however, challenge the state's evidence

regarding motive and Dugas's whereabouts prior to the fire. Raimo

presented the testimony of Gordon Rehnborg, the attorney

4
Raimo intimated, but no witness ever directly testified, that
pesticides had recently been applied in the basement.
5
For example, during his cross-examination of Boudreau, Raimo
largely conceded that the results of Boudreau's analysis were
correct, even suggesting that any confusion he might have in
looking at Boudreau's results would be due to his own lack of
knowledge as a layman:

"Q Well, I take it that the results are absolutely clear if
you know what you're looking for and you know how to
drive one of those mass spectrometers?
A Yes, with -- with training -- it obviously takes
training, but if I were to show my results to a person in
another lab doing forensic arson analysis, I'm confident
they would agree with me.
Q But if I got a C-minus in high school chemistry, and I
haven't done anything since then, and went up to your
lab, and started messing around with your spectrograph
and your gas -- and your gas chromatograph, it probably
wouldn't be real apparent to me?
A No, it probably wouldn't."

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representing Dugas's parents in their insurance policy claim.

Rehnborg testified that Dugas was not a beneficiary of the

insurance policy and, other than some minimal salary protection,

would not receive any money from insurance payments.

With regard to the undated and hazy videotape, Dugas

himself testified and acknowledged that, contrary to what he had

earlier told detectives, he had in fact returned to the store after

his initial departure.6 Dugas explained that he had forgotten this

brief re-entry when he first spoke to police, but that seeing the
still images from the videotape had jogged his memory. Dugas

maintained his innocence.

Raimo also presented evidence pursuant to the defense

theory that another person may have caused the fire. Raimo called

James Briggs, an expert in fingerprinting for the Nashua Police

Department, to testify that the police had not dusted various doors

to the building for fingerprints, presumably suggesting that the

police did not adequately consider the possibility of another

perpetrator. Raimo also identified other potential suspects,
particularly focusing on P.J. Kulas, an ex-employee who had quit

the store after Edgar accused him of theft. Raimo called Edgar to

testify about his confrontation with Kulas. However, the trial

6
Dugas testified that he had almost driven out of the parking
lot when he remembered that he might have left a cash drawer on a
desk in the office, and so returned to the store to put the drawer
in its proper place; while he was there, he did some miscellaneous
tasks in the kitchen. He also stated that, as he armed the alarm
system when he was about to leave, he noted that a light was on; he
"scooted over" to turn that light off, and then finally left for
the bank.

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court did not permit Raimo to cross-examine Kulas's wife, or

certain other witnesses, on the subject of Kulas's own criminal

trial, which Raimo argued would have shed light on why Kulas would

have set fire to the store.7

The eight-day trial concluded on July 22, 1999. After

three days of deliberations, the jury returned a guilty verdict.

The court sentenced Dugas to five to ten years in prison.
II.

After the conviction was affirmed on appeal, State v.
Dugas, 782 A.2d 888 (N.H. 2001) ("Dugas I"), Dugas moved for a new

trial in the superior court before the same judge who had presided

over the trial. See State v. Dugas, No. 98-S-1899 (N.H. Super. Ct.

Aug. 12, 2002) ("Dugas II"). Dugas argued, inter alia, that Raimo

had provided ineffective assistance of counsel by inadequately

pursuing the "not arson" defense, particularly due to the lack of

expert consultation.8 Raimo testified at the hearing on the motion

7
Raimo proposed to cross-examine Julie Kulas, P.J. Kulas's
wife, about "whether P.J. had been on trial for rape on the day of
the fire, was worried about getting a long prison sentence, was
drinking heavily, was upset with the Dugas' for not providing him
with a good job which would have kept him out of trouble, and
whether he realized that his time for settling old scores was
running out." The state objected, arguing that the testimony about
the rape trial was irrelevant and prejudicial, and Raimo offered to
omit the reference to the nature of the trial in his questioning.
The trial court rejected the entire line of questioning as more
prejudicial than probative. Raimo sought to cross-examine the
investigating police detectives regarding their knowledge of
Kulas's legal problems, but the state objected and the trial court
again found that the questioning would be more prejudicial than
probative. On appeal, the state court affirmed the trial court's
determinations.
8
Dugas also advanced other claims that are not before us.

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for a new trial and, in testimony that the judge found "remarkably

candid," admitted that he had no justifiable reason not to consult

an expert since there was no risk in doing so and the money was

available. Id. at 4. He confessed that he "didn't give it enough

consideration at the time," was overly confident in the strength of

his case (or, put differently, the weakness of the state's) and

admitted that he had placed too much reliance in his second theory

of the case (that, if the fire was arson, someone other than Dugas

was the perpetrator) and not enough emphasis on challenging whether

it was even arson. See id. at 4-5.

In support of his motion, Dugas offered the report of

Michael Higgins, a proposed forensic expert. Higgins identified

several issues that a forensic consultant could have flagged in

pretrial investigation.9 Dugas also moved for discovery so that he

could develop a more detailed expert analysis. A separate hearing

was held on the motion for discovery, during which Higgins

testified and addressed the issues raised in his report.

The state court analyzed the ineffective assistance of

counsel claim under New Hampshire constitutional precedent that

mirrors the Sixth Amendment standards articulated in Strickland v.

Washington, 466 U.S. 668 (1984), and is "at least as protective" as

Strickland. State v. Henderson, 689 A.2d 1336, 1339 (N.H. 1997).

Under both the federal and state standards, the petitioner must

prove that counsel's performance was deficient and that the

deficient performance prejudiced the defense. The court found that

9
See infra Part III.B.

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Raimo had weighed his options and made "a strategic decision

regarding one of two defenses, based on more than twenty years

experience and his familiarity with the various players involved in

this particular case." Dugas II, slip op. at 6. In assessing

Raimo's decision to forego any consultation with an arson expert,

the court focused on Raimo's statement that because any potential

expert would need the state's permission to view the fire scene,

the prosecution "might want to talk to [his] expert," which could

be damaging. The court concluded that Raimo had properly

considered "the benefits and perils of hiring an expert" and

therefore his performance was not deficient. It did not reach the

question of prejudice, and it denied both the motion for new trial

and the motion for discovery. The state supreme court declined to

grant review.

Dugas then filed this petition for a federal writ of

habeas corpus directed to appellee, the warden of the New Hampshire

State Prison for Men. The warden moved for summary judgment.

The district court issued a thoughtful opinion holding

that Raimo's performance had in fact been deficient. Dugas v.

Warden, No. 03-376-JD (D.N.H. May 21, 2004), slip op. at 9-12

("Dugas III"). The court concluded that Raimo's decision to forego

expert advice regarding the state's forensic evidence and attack

that evidence without the benefit of expert guidance was below the

standard of competence expected of practicing criminal defense

lawyers. The court noted that "Raimo admitted that he offered no

explanation to support the defense that the fire was not arson" and

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that "he had no independent basis to investigate the fire and that

he accepted the states' experts' opinions as to the cause." Id. at

10-11. The court also observed that Raimo may have been concerned

that a non-testifying defense expert might have to be made

available to the state. The district court explained that, to the

extent Raimo's decision was based on this concern, it was an

incorrect understanding of New Hampshire law. The court also found

the state court's reliance on that incorrect understanding to be

unreasonable:

[B]oth Raimo and the state court noted a risk
inherent in notifying the state that the
defense had an expert witness, which would
have been necessary to access the fire scene.
Raimo apparently believed, based on his
testimony, 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. But see N.H. Super. Ct. R.
98; Mello v. DiPaulo, 295 F.3d 137, 146 & n.8
(1st Cir. 2002). The state court recognized
that ordinarily the defense would not have to
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.

Id. at 10-12.

The district court concluded that "the record in this

case does not show that in both failing to consult an expert and

maintaining the defense that the fire was not arson, Raimo

conducted a thorough or reasonable investigation of the fire or

exercised reasonable professional judgment." Id. at 12. With

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respect to the heightened standard for habeas corpus under 28

U.S.C. § 2254, the district court further found that "[b]ased 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."

Id. at 11. It further pointed out that the state court's

conclusion was "based at least in part on a misunderstanding of the

law" and found it to be an "unreasonable application of the

Strickland standard." Id. at 12.

Since the state court had not reached the question of

prejudice, the district court decided that issue de novo. It noted

that "Higgins's opinions . . . might have been helpful to the

defense." Id. at 15. However, it found that, overall, they "do

not undermine the court's confidence in the outcome of the criminal

trial." Id. at 16. Thus, the court held that Dugas had suffered

no prejudice from the deficient performance of his counsel, granted

the warden's motion for summary judgment, and denied the petition.
III.

An ineffective assistance of counsel claim requires the

petitioner to demonstrate (1) that "counsel's representation fell

below an objective standard of reasonableness," and (2) "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 688, 694. "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

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Id. at 694. "[B]oth the performance and prejudice components of

the ineffectiveness inquiry are mixed questions of law and fact."

Id. at 698.

Our standard of review is slightly atypical because the

state court adjudicated Strickland's performance prong but did not

reach the prejudice prong. "Appellate review of the district

court's denial of habeas relief is de novo, but we accord deference

to the state court as to issues it actually decided." Ellsworth v.

Warden, 333 F.3d 1, 3-4 (1st Cir. 2003) (en banc) (citations

omitted). Since the state court concluded that Raimo's performance

was not deficient under Strickland, we defer to that conclusion

unless it "involved an unreasonable application of[] clearly

established Federal law." 28 U.S.C. § 2254(d)(1). Since the state

court never decided the question of prejudice, we review that issue

de novo. See Ellsworth, 333 F.3d at 4; Fortini v. Murphy, 257 F.3d

39, 47 (1st Cir. 2001) ("Here, the federal claim was never

addressed by the state courts. . . . [The Antiterrorism and

Effective Death Penalty Act] imposes a requirement of deference to

state court decisions, but we can hardly defer to the state court

on an issue that the state court did not address.").
A. Performance

1. Strickland Analysis

We apply the Strickland standard to evaluate an

attorney's strategic choices in light of the investigation that led

to those choices:

[S]trategic choices made after less than
complete investigation are reasonable

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 precisely to the extent that reasonable
professional judgments support the limitations
on investigation. In other words, counsel has
a duty to make reasonable investigations or to
make a reasonable decision that makes
particular investigations unnecessary. In any
ineffectiveness case, a particular decision
not to investigate must be directly assessed
for reasonableness in all the circumstances,
applying a heavy measure of deference to
counsel's judgments.

466 U.S. at 690-91. Since "the state court identifie[d] the

correct governing legal principle [i.e., the Strickland performance

test] from [the Supreme Court's] decisions," its conclusion that

Raimo's performance was not deficient constitutes an "unreasonable

application" of that law only if the court "unreasonably applie[d]

that principle to the facts of the prisoner's case." Williams v.

Taylor, 529 U.S. 362, 413 (2000).

We have no doubt that Raimo is an experienced attorney.

But our inquiry is not whether Raimo is generally competent.10

Rather, we must decide whether, given the particular facts of this

case, he fell below the constitutional standard of competence by

inadequately investigating the "not arson" defense that he decided

to pursue as part of his overall defense. We emphasize that the

question is not whether Raimo should have presented a "not arson"

defense. Instead, we focus on whether the investigation supporting

10
Similarly, Raimo's subjective impression that his
representation was inadequate plays no role in our decision. The
Strickland test requires us to assess whether "counsel's
representation fell below an objective standard of reasonableness."
466 U.S. at 688 (emphasis added). If "counsel performed as a
competent lawyer would, his . . . detailed subjective reasoning
[would be] beside the point." Cofske v. United States, 290 F.3d
437, 444 (1st Cir. 2002).

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his pursuit of the defense was itself reasonable. Cf. Wiggins v.

Smith, 539 U.S. 510, 523 (2003) ("[O]ur principal concern . . . is

not whether counsel should have presented a mitigation case.

Rather, we focus on whether the investigation supporting counsel's

decision not to introduce mitigating evidence of [the defendant's]

background was itself reasonable.")(emphasis in the original).11

As noted, the record demonstrates that Raimo's

investigation consisted of his own visual assessment of the fire

scene, his conversations with the state's experts, some limited

reading, and his conversations with other defense attorneys after

work. Based on this investigation, Raimo mounted a "not arson"

defense. He did not consult an expert in arson investigation or

learn how to effectively use the terminology and techniques of

arson investigation from his own research. In essence, Raimo

"abandoned [his] investigation . . . after having acquired only

rudimentary knowledge of [the issues] from a narrow set of

sources." Wiggins, 539 U.S. at 524 (finding counsel's failure to

adequately investigate mitigation evidence deficient).

In assessing the constitutional significance of Raimo's

investigation of the "not arson" defense, we recognize that

"reasonably diligent counsel may draw a line when they have good

reason to think further investigation would be a waste." Rompilla

11
Even though many post-Strickland ineffective assistance
cases, including Wiggins, involve capital offenses, the Strickland
standard applies to both capital cases and noncapital cases
involving a sentence of imprisonment. See Glover v. United States,
531 U.S. 198, 203 (2001) (explaining, in noncapital case on
ineffective assistance of counsel, that "any amount of actual jail
time has Sixth Amendment significance").

-21-
v. Beard, 125 S. Ct. 2456, 2463 (2005) (finding attorneys' failure

to investigate material they knew that the prosecution would rely

on was ineffective). We also recognize that reasonably diligent

counsel are not always required to consult an expert as part of

pretrial investigation in a case involving the use of expert

witnesses by the state. "A defendant's lawyer does not have a duty

in every case to consult experts even if the government is

proposing to put on expert witnesses. There may be no reason to

question the validity of the government's proposed evidence or the
evidence may be so weak that it can be demolished on

cross-examination." Miller v. Anderson, 255 F.3d 455, 459 (7th

Cir. 2001) (Posner, J.) (citations omitted) (finding defense

counsel's failure to consult scientific experts constituted

deficient performance where defense was that defendant was not

present at scene of crime), remand order modified by stipulation,

268 F.3d 485 (7th Cir. 2001).

However, for multiple reasons, Raimo's failure to

thoroughly investigate the "not arson" defense in this case was
constitutionally deficient. First, challenging the state's arson

case was critical to Dugas's defense. Other than creating

reasonable doubt that the fire was not arson, Dugas's only defense

was that "someone else did it" -- a defense that is often difficult

to mount and fraught with evidentiary problems, as Raimo's attempt

to cross-examine witnesses about the main alternative suspect

demonstrates. Much of Dugas's defense, therefore, depended on

Raimo's ability to convince the jurors that the State's experts

-22-
might be wrong in concluding that the fire was arson. Indeed, he

told the jurors as much at the outset of the trial. Given this

representation, it is unfathomable that he did not undertake a more

thorough investigation into such a crucial aspect of the defense.12

Second, the arson evidence was the cornerstone of the

state's case. The state had little evidence beyond it. Raimo

understood this. In fact, he was "shocked" at the outcome of the

trial because he perceived the state's motive evidence to be so

weak. Yet he failed to conduct a thorough investigation into the
most crucial aspect of the state's case.13

12
See Rompilla, 125 S. Ct. at 2469-70 (O'Connor, concurring)
(finding ineffective assistance and noting defense counsel failed
to properly investigate an issue that "threatened to eviscerate one
of the defense's primary [] arguments"); Miller, 255 F.3d at 459
(finding "no excuse for the lawyer's failure to consult experts on
hair, DNA, treadmarks, and footprints" when such factors went to
critical defense argument that defendant was not at the scene of
the crime); Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993)
(noting that where the attorney offered a two-pronged defense to
rape and evidentiary weaknesses existed in one prong, "[t]he
vulnerability of the alibi evidence shows the unreasonableness of
the attorney's failure to investigate further and present the
impotency defense"); State v. Hicks, 536 N.W.2d 487, 492 (Wis. Ct.
App. 1995) (noting that "Hicks's trial counsel understood that the
hair samples were going to be a major issue in the case. But he has
provided no reasoned basis for failing to pursue a testing process
that he knew had the potential to provide exculpatory evidence on
this major issue."), aff'd on other grounds, 549 N.W.2d 435 (Wis.
1996).
13
See Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995)
(finding that "defense counsel's failures to prepare for the
introduction of [state's scientific evidence]" and "to subject the
state's theories to the rigors of adversarial testing" involving
"an issue of the utmost importance" in the state's case constituted
ineffective assistance); Troedel v. Wainwright, 667 F. Supp. 1456,
1461 (S.D. Fla. 1986) (finding ineffective assistance where counsel
"neither deposed . . . the State's expert witness [on gunpowder
residue], nor bothered to consult with an expert in the field prior
to trial" despite the fact that counsel "knew pretrial this issue
would be critical"), aff'd, 828 F.2d 670 (11th Cir. 1987).

-23-
 Third, Raimo acknowledged that he lacked any knowledge of

arson investigation and had never tried an arson case. He

understood that he needed expert assistance to understand and

challenge the state's case.14 Yet he decided to accept the

characterization of the fire scene by the state's experts rather

than conduct an independent investigation.15

Fourth, Raimo knew and admitted that a layperson would be

likely to view the scene as an arson. He understood that expert

testimony or a well-informed cross-examination on the scientific
conclusions of the state's experts would be necessary to shake the

jurors' views that they were dealing with an arson scene. Yet he

did not prepare himself for that task.16

14
See United States v. Tucker, 716 F.2d 576, 581 (9th Cir.
1983) (noting that "it should have been obvious to a competent
lawyer that the assistance of an accountant [was] necessary" as
part of pretrial defense investigation of complex fraud case);
Troedel, 667 F. Supp. at 1461 (finding counsel's failure to consult
an expert, depose witnesses, and conduct an independent
investigation despite the fact that "counsel himself had no special
knowledge in the field" to constitute deficient performance).
15
See Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir. 1992)
(finding that defense counsel "did not make a reasonable decision
that further investigation of the physical evidence was
unnecessary," and noting that he did not make an "'independent
investigation'" and failed to ask a defense expert to examine the
evidence); see also William W. Turner, Investigating Particular
Crimes, 2 Am. Jur. Trials 171 § II.8 ("[C]ounsel for an accused
arsonist . . . should, where possible, use discovery methods to
determine the evidence on which the prosecution hinges its case. .
. . Findings based on laboratory analysis or expert opinion should
be submitted to his own experts to determine their validity.").
16
See Paine v. Massie, 339 F.3d 1194, 1202 (10th Cir.
2003)(finding defense's failure to elicit expert testimony on
Battered Women's Syndrome (BWS) demonstrated ineffectiveness where
such testimony "was necessary to mount an effective self-defense
claim given the jury's likely misconceptions about BWS")(emphasis
in the original).

-24-
 Fifth, Raimo conceded that he had at least some reason to

believe that there were problems with the state's arson case. He

noted inconsistencies in the testimony of the state's arson experts

and recalls talking to colleagues about the need to hire a well-

qualified expert to challenge the state's arson case. "In

assessing the reasonableness of an attorney's investigation . . .

a court must consider . . . whether the known evidence would lead

a reasonable attorney to investigate further. . . . Strickland

does not establish that a cursory investigation automatically
justifies a tactical decision. . . ." Wiggins, 539 U.S. at 527.

Raimo's failure to follow through with his investigation of the

arson issues resulted in a feeble defense that was contrary to his

promise to the jury at the outset of the trial that "what 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

-25-
wrong."17 Raimo never gave the jury any reason to think that the

state's experts were wrong.18

Taken together, these circumstances -- the importance of

challenging the state's arson case to Dugas's defense, the

unfulfilled promise to the jury to do so, the crucial role of the

arson evidence to the state's case, Raimo's lack of knowledge and

experience in arson investigation and arson cases, and Raimo's

initial awareness of problems with the state's case -- demonstrate

the inescapable need for expert consultation in this case. Yet for
reasons he was unable to explain, Raimo did not consult an arson

expert as part of his investigation.

17
The dissent acknowledges that it would be "an inexplicable
blunder" if Raimo told the jury that "he needed to establish a
reasonable doubt whether the fire was an arson in order to secure
an acquittal for his client . . . ." Post at 3 n.1. Raimo did not
put the proposition to the jury in the blunt terms used by the
dissent. We did not say that he did. But the dissent's suggestion
that Raimo's statement to the jury ("we think they're wrong") did
not refer to the state's evidence of arson is insupportable. In
his statement to the jury, Raimo specifically referred to the fire
investigation when he said to the jurors that "you're going to hear
a lot from the fire investigators in this case, but a lot of the
fire investigation, you know, we're going to suggest to you is not
rocket science." He also referred to the "clues there in the
physical evidence of the fire." Raimo's statement to the jury that
"we think they're wrong" was an unmistakable challenge to the
state's evidence of arson.
18
See Wiggins, 539 U.S. at 525-26 (finding that counsel
presented "a halfhearted mitigation case" and noting that "any
reasonably competent attorney would have realized that pursing
these leads [found in the initial mitigation investigation] was
necessary to making an informed choice among possible defenses");
see also Rogers v. Israel, 746 F.2d 1288, 1295 (7th Cir. 1984)
(holding that "the defense counsel owed a duty to the petitioner to
ask a qualified expert whether [the victim] would have been
immediately incapacitated by his wound," noting that counsel had
recognized the potential value of such expert assistance during his
defense preparations).

-26-
 The state argues that Raimo's inexplicable choice to curb

his investigation was based on an informed, tactical decision. We

disagree. We cannot conclude that, as the state suggests, Raimo's

failure to thoroughly investigate the "not arson" defense was

justified by a tactical decision to pursue the defense that another

person caused the fire or his overconfidence in that alternative

defense. "A tactical decision to pursue one defense does not

excuse failure to present another defense that 'would bolster

rather than detract from [the primary defense].'" Foster, 9 F.3d at
726 (finding that counsel failed to adequately pursue impotency

defense in rape case).19 The "not arson" defense did not conflict

with the "other perpetrator" defense. They offered alternative

grounds for reasonable doubt. Pursuing one defense did not require

Raimo to avoid pursuing the other.

Nor can we find that Raimo's failure to consult an expert

or educate himself on the techniques of defending an arson case is

excusable based on a "tactical" decision to pursue uninformed

cross-examination of the state's experts. Where defense counsel's
"extensive cross-examination of the government's expert strongly

suggests that they consulted an expert," Ruiz v. United States, 221

19
See also Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir.
2001)(finding that attorney's decision not to prepare a defense
because he believed that the trial court would grant his motion to
dismiss was "not the sort of conscious, reasonably informed
decision made by an attorney with an eye to benefitting his
client"); Austin v. Bell, 126 F.3d 843, 849 (6th Cir.
1997)(rejecting counsel's argument that he "did not present any
mitigating evidence because he did not think that it would do any
good" despite the availability of witnesses, and finding that
counsel's "reasoning does not reflect a strategic decision, but
rather an abdication of advocacy").

-27-
F. Supp. 2d 66, 82 (D. Mass. 2002), aff'd, 339 F.3d 39 (1st Cir.

2003), or where the state's "evidence may be so weak that it can be

demolished on cross-examination," Miller, 255 F.3d at 459, defense

counsel's investigation and pursuit of a defense may be deemed

sufficient. However, Raimo's cross-examination demonstrated a

clear lack of understanding of arson investigation and the

principles invoked by the state's many expert witnesses. Without

having consulted an expert or researched the scientific principles

more thoroughly, Raimo was hopelessly unprepared to challenge the
state's expert witnesses.20

In short, Raimo's failure to thoroughly investigate the

"not arson" defense and seek expert assistance cannot be classified

as a conscious, reasonably informed tactical decision. This is

particularly so because Raimo recognized that there were possible

problems with the testimony of the state's experts, and he told the

jurors he would demonstrate those problems. He just never prepared

himself to do the job. Under these circumstances, we must conclude

20
See Lindstadt v. Keane, 239 F.3d 191, 201-02 (2d Cir.
2001)(rejecting the prosecution's argument that defense counsel's
cross-examination of the expert was sufficient, noting that his
"effort was hamstrung, however, by counsel's lack of familiarity
with the studies upon which [the expert] was presumably relying;
the effect was ruinous because [the expert] testified that the
(unidentified) studies ruled out every theory of innocent injury
. . . posited by the defense"); Spencer v. Donnelly, 193 F. Supp.
2d 718, 734 (W.D.N.Y. 2002) (finding counsel's performance
deficient despite cross-examination of expert, and noting that
"[a]t a minimum, the use of a child psychologist or similar expert
would have been most useful and helpful to trial counsel in
preparing for the cross-examination of [the state's expert]").

-28-
that Raimo's investigation of the "not arson" defense was deficient

under the Strickland standard.21

2. Section 2254 Analysis

The state court's contrary conclusion largely rested on

the facts that (1) Raimo is an experienced attorney; (2) he spoke

to other experienced attorneys; and (3) if he had consulted an

expert, the state would know about it (though not what the expert

determined) because the expert would need permission to visit the

fire scene. See Dugas II, slip. op. at 5-6. As the district court
aptly explained, see Dugas III, slip op. at 11-12, the state

court's decision rested on an unreasonable determination of fact

and an unreasonable application of Strickland to the facts.

The argument that Raimo's investigation was reasonable

because Raimo is an experienced attorney and spoke to other

experienced attorneys takes us only so far in a Strickland

analysis. The ability to challenge the state's experts was a

21
The dissent worries about the implications of this decision,
predicting that defense attorneys and trial judges will read it to
require attorneys to hire experts in every case where the
prosecution uses an expert, and to require judges in court-
appointed cases to grant funds to hire such experts whenever such
funds are requested. See post at 1-2, 11-12. As our references to
the ample precedents indicate, this is far from the first case
where the failure of defense counsel to use experts in preparation
for trial was the basis for a finding of ineffective assistance of
counsel. Despite the insistence of the dissent to the contrary,
this decision, like those precedents, is grounded in the specifics
of this case. It is true that attorneys in future cases will try
to make use of this precedent to argue that there has been
ineffective assistance of counsel, and that they are entitled to
funds for expert witnesses in cases involving indigent defendants.
That phenomenon is a normal part of the legal process. It is not
a reason to avoid applying well-established legal principles to the
facts of this case.

-29-
crucial part of the important "not arson" defense. Raimo's own

background and his "casual conversations with friends" provided him

with no basis for critically assessing the scientific conclusions

and methodology of the state's experts. Raimo's attempt to impeach

the state's arson case at trial was largely ineffective. His

investigation into the arson case was neither careful nor thorough.

The state court's contrary conclusion was an unreasonable

application of Strickland.

In support of its ruling, the state court found that
Raimo had "considered the benefits and perils of hiring an expert."

Dugas II, slip. op. at 5. According to Raimo's testimony in state

postconviction proceedings, no such balancing of "benefits and

perils" ever took place.22 Even, however, assuming that such a

benefit-peril balancing had taken place, the state court was only

able to identify one such "peril":

There would be no obligation to disclose an
expert to the State unless the expert would be
called to testify at trial and, therefore,
there was no patent danger in consulting an
expert. Consultation with an expert may have
provided Raimo with more knowledge of fires and
arson so that he could have more effectively
challenged the State's evidence of arson.
Unfortunately, there was no way to get an
expert into the fire scene to evaluate it or
collect samples without notifying the State.

Dugas II, slip. op. at 5 (emphasis added). The district court, in

evaluating this logic, noted that the state court "concluded,

22
"Q. [W]as this a mistake where you made a tac . . . -- you
made a tactical decision that there was a risk in hiring an
expert to advise you, and rather than take that risk, you were
not going to hire an expert.
A. No."

-30-
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 12.

We agree with the district court. The peril, if any,

associated with the state's learning that the defense had hired an

expert for pretrial consultation was minimal, approaching trivial.

Perhaps the state might have obtained a sixth expert witness in
addition to Donaldson, Strand, Eddy, Johnson, and Boudreau.

Perhaps it would have prepared its experts for more vigorous cross-

examination. But, in the context of this case, these "perils"

could not have outweighed the benefits of consulting an expert

under any rational calculus. Raimo's feeble pursuit of an

important defense through a cross-examination that was entirely

uninformed by any scientific knowledge further demonstrates that

any such balancing (again assuming that one took place) led to an

unreasonable result.23

23
The dissent notes that Raimo "took into account" another
possible peril -- "that, in rare cases, hiring one's own expert can
have the effect of precluding an attorney from pursuing in good
faith lines of argument designed to raise doubts about the State's
experts' methods and conclusions." Post at 7. As we understand it,
the theory is that it was important for Raimo to preserve, by not
consulting an expert, the option of pursuing a defense that could
almost certainly never succeed without consulting an expert. Put
differently, the dissent appears to argue that Raimo acted
reasonably by refusing to consult an expert in an effort to
preserve the option of proceeding in ignorance with a weak defense.
We find this unpersuasive.

-31-
 The state court's contrary conclusion is thus incorrect

by "clear and convincing evidence," 28 U.S.C. § 2254(e)(1), and

therefore reflects "an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding," id.

§ 2254(d)(2). Moreover, "[t]his partial reliance on an erroneous

factual finding . . . highlights the unreasonableness of the state

court's decision." Wiggins, 539 U.S. at 528. The state court's

conclusion that counsel made a tactical decision to forego expert

consultation is inconsistent with how counsel actually proceeded
and appears to be "more a post-hoc rationalization of counsel's

conduct than an accurate description." Id. at 526-27.24 In short,

the state court based its conclusion on a supposed benefit-peril

balancing which, assuming it had taken place, could not rationally

have led to the conclusion that the state court drew. Accordingly,

the state court's conclusion was an unreasonable application of

Strickland within the meaning of § 2254.
B. Prejudice

The knottier question is whether Dugas was prejudiced by
Raimo's failure. Prejudice occurs when "there is a reasonable

24
The dissent says that we have come to this conclusion
because we have accepted Raimo's characterization of his own
performance as inadequate. See post at 6 n.2, 9. Indeed, the
dissent goes so far as to say that Raimo's own testimony "forms the
basis for much of the majority's analysis." Id. at 9. That is
simply not so. We have only noted Raimo's acknowledgment that,
contrary to the finding of the state court, he did not engage in a
weighing of the benefits and perils of consulting an arson expert
prior to trial. We have made clear, however, that even if such a
benefit-peril balancing had been engaged in by Raimo, neither he
nor the state court identified a plausible peril. We also have
stated explicitly that Raimo's own judgment that his representation
was inadequate has played no role in our decision.

-32-
probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in

the outcome." Strickland, 466 U.S. at 694.

In submitted documents and hearing testimony, Higgins

alleges several defects in the state's case which, if he had been

consulted before trial, he would have highlighted for further

investigation.25 One of these issues -- concerning flaws in the

state forensic chemist's analysis -- gives us considerable pause.
At least two of the remaining major issues26 -- concerning evidence

25
The dissent argues that Higgins's letter of October 20, 2000
(sent to Raimo while the conviction was on appeal), and presumably
as well a followup letter sent on April 24, 2002 to Dugas's post-
conviction counsel, are inadmissible because they have not been
sworn or authenticated. See post at 10-11. However, the state has
never challenged the authenticity or admissibility of Higgins's
letters at any phase of the proceeding in any court, and has
probably forfeited any such challenge. See D.N.H. R. 7.2(c).
Moreover, Higgins testified under oath as to the issues he
identified in his October 20, 2000 letter during the state court
hearing on Dugas's motion for discovery and was cross-examined on
his analysis by the state. See Fed R. Evid. 901(b)(1)
(authentication by testimony of witness with knowledge).
The dissent also leaps ahead of the limited evidentiary remand
that we order, see infra Part IV, by arguing that Higgins
misinterprets the applicable technical standard. See post at 10
n.3. Undoubtedly, the exact requirements of the applicable
standards will be a subject of dispute on remand. Assuming that
the state chooses to raise this point on remand, the district court
is in the best position to decide their merits.
26
We find that one of the issues raised by Higgins -- the
state's failure to provide the video equipment and original tape
to the defense -- does not affect the prejudice analysis in this
case. Higgins suggests that the video equipment and the original
tape should have been made available to the defense, and that, as
an expert, he would have insisted upon this. He argues that this
might have enabled Dugas to show that the tape's timing and
sequence were in error. However, in light of Dugas's admission
that he returned to the store and acted in a manner consistent with

-33-
of ventilation and certain smoke shadows -- demonstrate other

unexplored lines of questioning which would have benefitted from

expert consultation. While the flaws in the chemist's analysis

alone probably provide enough evidence of prejudice to survive

summary judgment, "Strickland clearly allows the court to consider

the cumulative effect of counsel's errors in determining whether a

defendant was prejudiced." Kubat v. Thieret, 867 F.2d 351, 370 (7th

what appeared on the enhanced videotape, we cannot perceive any
impact on the outcome of the trial.
We cannot determine whether the other questionable issue
raised by Higgins -- his critique of the electrical equipment and
wiring analysis -- is relevant to the prejudice analysis. Higgins
noted that the state's experts should carefully document and
diagram the electrical equipment and wiring prior to removing them
from the scene, and that the failure to do so calls into question
the integrity of the evidence. The district court concluded that
"Higgins’s opinion about preserving evidence of the electrical
system, even if true, does not contradict the state’s experts’
opinions excluding that system as a cause of fire." Dugas III,
slip op. at 15. Of course, Higgins cannot demonstrate a specific
contradiction here because Raimo never conducted an independent
investigation and thus never obtained the evidence from the state's
experts. As such, Higgins can only speculate as to whether an
independent analysis would have produced different results, and
speculation about the existence of missing contradictory evidence
alone is not a ground for finding prejudice. However, a critique
that undermines the methodology of the state's experts would be
relevant in a prejudice determination in this case. We cannot
determine, based on Higgins's report or the record as a whole,
whether the state actually failed to fully diagram and document the
electrical equipment and wiring in its initial state prior to
removal (it is clear only that some diagrams were created for the
state's case at some point prior to trial). Nor is it clear how,
as Higgins suggests, any failure to do so casts doubt on the
integrity of the evidence and the electrical expert's methodology,
particularly given the expert's personal inspection of the scene
prior to the removal of the equipment and wiring. If the state's
experts failed to document the initial scene and this failure does
cast doubt on the methodology, this issue could constitute another
unexplored line of questioning that Raimo could have used during
cross-examination. The district court may seek to clarify the
factual basis for this critique on remand, but we need not and do
not consider this issue in determining that a remand is warranted
in this case.

-34-
Cir. 1989). We thus find that these three issues, taken together,

with particular emphasis on the potential flaws in the state

forensic chemist's analysis, are sufficient to raise a genuine

dispute of material fact concerning prejudice.

We acknowledge that, even if a proper expert analysis

would completely undermine the state's chemical analysis evidence,

Dugas would not be home free. Dugas would still have to contend

with the fire investigators' conclusion (independent of any

chemical analysis) that the fire was intentionally set, although
his cross-examination of these experts would be considerably

stronger given expert consultation. Dugas also would have to

address the issue of the video and his conflicting statements.

While the tape was largely incomprehensible, Dugas testified at

trial that he did indeed reenter the store after closing. That

admission would seem damaging in light of his earlier denials.27

However, such weaknesses were not confined to Dugas's

defense alone. The state's evidence of motive was a potpourri of

generalities about the stresses of marriage and business, without
any theory of how burning the store could possibly benefit Dugas,

financially or otherwise. Despite the deficiencies in the defense,

27
Yet some jurors may have credited Dugas's testimony about the
video in his favor. If Dugas set the fire and was lying about his
innocence, he could have chosen to also lie about his whereabouts
and maintain the plausible argument that the video showed events
from another date. Instead, Dugas testified that, contrary to his
earlier statements, he had returned to the store. Dugas only stood
to lose from this admission, and some of the jurors may have been
inclined to believe Dugas and his claims of innocence. This
inclination may have been stronger if the jurors had also
entertained doubts about whether the fire had been an arson at all.

-35-
it took the jury three days of deliberations to reach a guilty

verdict after only eight days of trial. The length of jury

deliberations can be one factor in determining how close the jury

viewed the case to be.28 In a close case, the failure of defense

counsel to present certain evidence or effectively challenge the

state's evidence on important issues can be particularly

prejudicial.

This case lay on a knife edge, and it would not have

taken much to sway at least some jurors towards acquittal.
Accordingly, the threshold for prejudice is comparatively low

because less would be needed to unsettle a rational jury.

Strickland, 466 U.S. at 696 ("[A] verdict or conclusion only weakly

supported by the record is more likely to have been affected by

errors than one with overwhelming record support.").

Boudreau (the chemist) testified simply that some of the

samples contained medium petroleum distillates and normal alkanes.

He conceded that normal alkanes could be present for benign

reasons:
Q. Now, do normal alkanes appear as a
matter of course on paper, or in the
paper-making process?

28
How the length of jury deliberations affects the prejudice
analysis depends on the precise circumstances. See, e.g., Murtishaw
v. Woodford, 255 F.3d 926, 974 (9th Cir. 2001) (concluding, in
challenge to capital case penalty phase jury instructions, that
"the mitigating evidence presented, the jury's apparent interest in
it, and the length of the jury's deliberations," established that
error was not harmless); United States v. Bubar, 567 F.2d 192, 202
(2d Cir. 1977) (noting, in ineffective assistance of counsel
challenge, that while counsel's defense was "odd," nevertheless
"some indication of its effectiveness is that it kept the jury out
deliberating [defendant's] fate for three days").

-36-
 A. I can't say for all paper, but for some
paper they may appear as being a
solvent for -- for some of the printing
inks.
. . .
Q. What about -- could there be a benign
or an innocent reason for the presence
of normal alkanes present on paper even
before burning?
A. Yes.

On cross-examination, he admitted that medium petroleum distillates

might be a component of pesticide sprays:

Q. What does J.P. Chemical use in their
pesticides in -- when they spray in a
commercial building?
A. I really wouldn't be able to tell you.
Q. Would you be surprised to find medium
petroleum distillates as a dispersant
in pesticides?
A. No, I wouldn't. I have read that
sometimes -- that the carrier is used
-- is a medium petroleum distillate
used for pesticides, and I have checked
-- I have tested some samples myself,
or I found a medium petroleum
distillate. It may also be other
petroleum distillates such as a heavier
petroleum distillate might be used.
Q. So you wouldn't be at all surprised to
have -- to find that bug spray is an
ignitable liquid?
A. Correct. That bug spray may contain an
ignitable liquid.
Raimo was able to proceed thus far without the benefit of

expert advice. But Higgins has identified a potentially more

serious flaw in Boudreau's analysis. The applicable national

standard from the American Society for Testing and Materials (ASTM)

requires an ignitable liquid to be not merely detected, but

specifically identified.29 As Higgins explains:

29
The standard is formally known as ASTM E-1387, "Standard Test
Method for Ignitable Liquid Residues in Extracts from Fire Debris

-37-
 [The ASTM standard] requires the exact
identification of flammable liquids
(acclerants). [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 that they might have a
flammable liquid, but what they fail to say is
they may not have one.

The [standard] requires the exact
identification of the flammable liquid and
that standard chromatograms of that accelerant
should be maintained in the case folder.

Thus, Dugas alleges, a competent cross-examination of
Boudreau would have challenged his failure to identify the specific

accelerant, in apparent violation of ASTM standards. Put

differently, it is arguably improper even to use the term

"accelerant" unless one has been specifically identified.

The district court acknowledged that "Higgins' opinions

about the state's experts' failure to follow standards for

identifying accelerants . . . might have been helpful to the

defense." Dugas III, slip op. at 15. However, it did not find

this to constitute prejudice, since "Dugas has not shown that the
state's experts were required to follow the standards Higgins

cites. It also does not appear that the irregularities he charges

would necessarily have been material to the state's experts'

opinions." Id.

It appears that Higgins's laconic explanation of the ASTM

standards issue led to a misunderstanding on the part of the

district court. We do not understand Higgins's critique to be

Samples by Gas Chromatography."

-38-
merely that the lab did not follow ASTM standards; indeed, Dugas

does not suggest that it was required to do so. Rather, we

understand Higgins's critique -- that the state's experts "say[]

that they might have a flammable liquid, but what they fail to say

is they may not have one" -- to mean that the results themselves

are questionable. Specifically, Boudreau's analysis -- which, due

to Raimo's failure to consult an expert, was the only analysis

applied to the samples -- was designed not to distinguish between

innocuous and nefarious explanations for the presence of ignitable
liquids.30

As Boudreau testified, his analysis is designed to answer

one question only: "if any ignitable liquids are present in the

sample." His laboratory technique consists of five basic steps.

First, an activated carbon strip is inserted into a small hole in

the container holding the sample. Second, the container is heated

in an oven "so that if there's any ignitable liquids present in the

debris it [sic] will rise to the top of the can. . . . [and] then

be chemically bonded to the carbon strip." Third, the strip is
removed and bathed in a solvent that removes any ignitable liquids.

Fourth, a gas chromatograph is used to separate the components of

the ignitable liquids. Finally, a mass spectrometer is used to

analyze each component.

30
To be sure, even if there is a credible innocuous explanation
for the presence of ignitable liquids in the debris samples, Dugas
has to contend with the fire investigators' unanimous opinions that
the fire appeared to be intentionally set. We address that issue
later in this section.

-39-
 As the preceding discussion shows, Boudreau's laboratory

technique is designed to detect ignitable liquids, and only

ignitable liquids. He testified, and we have no reason to doubt,

that the method he described is a nationally recognized procedure

"for showing that [an] ignitable liquid is present." However, this

method has two important limitations. First, it cannot distinguish

between different chemicals in the same class, e.g., between

different types of medium petroleum distillate. See People v.

Sykes, 793 N.E.2d 816, 824 (Ill. App. Ct. 2003) ("A petroleum
distillate can be identified, but the specific product from which

it came cannot be identified."); Commonwealth v. Scott, No. 93-

12100-1-3, 3 Mass. L. Rep. 309, 1995 Mass. Super. LEXIS 847, at *16

(Mass. Super. Ct. Feb. 15, 1995) ("The conclusion that a medium

petroleum distillate was detected is a classification not an

identification."), aff'd sub nom. Commonwealth v. McQuade, 710

N.E.2d 996, 1002 (Mass. App. Ct. 1999).

Perhaps more importantly, Boudreau's method does not and

cannot analyze any other component of the sample besides the
ignitable liquids. For example, pesticides may contain ignitable

liquids as solvents:31

Q. . . . The -- the bug spray is the stuff
that kills the bugs, right?
A. Yes, the compound that's toxic to -- to
the insects.

31
Although Raimo intimated in his cross-examination of Boudreau
that "J.P. Chemical" had recently applied pesticides to the
basement, no witness testified to such an application. See supra
note 4.

-40-
 Q. Okay. And the -- but there is
something that they use to disperse the
toxic agent to the bugs?
A. Yes, basically to get the insecticide
to dissolve, sometimes they would use a
hydrocarbon, a petroleum distillate.
And it may be a medium petroleum
distillate in some cases.

In other words, if someone sprays onto a stack of papers a

pesticide using a medium petroleum distillate for a solvent, both

the solvent and the toxic active ingredient might be present on the

sample.32 But Boudreau's method of analysis -- designed only to
detect ignitable liquids -- would simply report the presence of a

medium petroleum distillate. Similarly, if a printing ink

contained normal alkanes as a solvent for various other ink

ingredients, Boudreau would dutifully report that normal alkanes

were present in the sample -- and nothing more.

We do not disparage Boudreau's science. The state is

interested in the answer to a particular question -- does the

sample contain ignitable liquids? -- and Boudreau answers that

question. However, the defense is (or ought to be) interested in

a different question: does the sample contain compounds associated
with pesticides, alkane-based inks, or other substances that could

suggest that the ignitable liquids were present for benign reasons?

Put differently, Boudreau's technique can only inculpate, never

exculpate.

32
It is, of course, possible that the toxic active ingredient
degrades more rapidly than the solvent and would not show up in
testing. Due to Raimo's failure to explore this issue in greater
depth, such issues were not raised at trial.

-41-
 If Raimo had consulted an arson investigator before

trial, that investigator would have undoubtedly urged Raimo to

demand the debris samples that Boudreau received -- not to mention

those that Eddy collected, but which the state seized -- and submit

them for independent testing. Indeed, Higgins regularly performs

such analysis as a defense expert. See, e.g., State v. Dowdle, 807

A.2d 1237, 1243 (N.H. 2002) (noting that Higgins was retained by

the defense and obtained Boudreau's samples and charcoal testing

strips for independent testing); Scott, 1995 Mass. Super. LEXIS
847, at *6 (where the state criminal laboratory accidentally

destroyed the fire debris samples, Higgins testified, as a defense

expert, as to how he could have independently tested the samples to

determine whether certain petroleum products were accelerants or

natural components of fire). Higgins states that, if he had been

retained here, he would have done the same. See also William W.

Turner, Investigating Particular Crimes, 2 Am. Jur. Trials 171

§ II.8 ("[C]ounsel for an accused arsonist . . . should, where

possible, use discovery methods to determine the evidence on which
the prosecution hinges its case . . . . Findings based on

laboratory analysis or expert opinion should be submitted to his

own experts to determine their validity."). Such testing could

both verify Boudreau's findings, and, more importantly, determine

whether the sample also contained other compounds (e.g., an

insecticide active ingredient, or components associated

specifically with alkane-based inks) suggestive of an innocent

explanation for the ignitable liquids. If the independent test had

-42-
revealed such compounds, it might have severely undermined

Boudreau's analysis by demonstrating an innocent explanation for

his findings. By failing to secure an independent forensic

analysis, Raimo eliminated the possibility of obtaining exculpating

chemical evidence.33

Of course, even if Boudreau's chemical analysis could be

completely undermined by independent examination, Dugas would still

have to contend with the opinions of three separate fire

investigators, each of whom concluded, before the chemical analysis
was conducted, that the fire was intentional.34 However, Higgins

points to two other issues that raise questions about the

completeness of the experts' fire investigation and their

conclusions.

First, Higgins notes that smoke shadows on the floor

indicate that boxes were present near the top of the staircase to

the basement at the time of the fire. Those boxes were apparently

33
At this stage, we place no weight on Higgins's statement
that he tested some fire debris from the basement and found no
ignitable liquids. Boudreau also testified that some of his
samples yielded no ignitable liquids, and Eddy testified that, to
the best of his knowledge, all of his samples tested negative.
Eddy, however, also testified that he was not surprised by this
finding, as he did not have the benefit of an accelerant detection
dog, and therefore did not know precisely where to look. When a
state police expert and an independent expert testifying for the
prosecution both admit that at least some of their samples
contained no ignitable liquids, a defense expert who also testified
that his samples yielded no ignitable liquids would only have a
marginal impact on a factfinder's evaluation of the evidence.
34
We note that the state's case as a whole was so
circumstantial that any additional doubt might have tipped the
jury. Thus, even if the only ground for prejudice was the critique
of Boudreau's analysis, we would not be convinced that Dugas could
not establish prejudice.

-43-
moved by the state at some point before the jury viewed the scene.

Higgins explains that the smoke shadows demonstrate that the

stacked boxes permitted, at most, four inches of clearance to get

through to the basement door. Arguably, the arrangement of those

boxes would have obstructed passage, and it would have been

difficult for a person to cross the first floor, descend to the

basement, light the fire, reascend to the first floor, and arrange

the boxes, in the time shown on the videotape. The district court

opined that this theory "is interesting but is not corroborated by
any other evidence at trial. Most tellingly, Dugas did not testify

that the boxes would have blocked his access to the basement."

Dugas III, slip op. at 15-16. However, if Raimo had consulted an

expert, he would have known the importance of the smoke shadows and

the placement of the boxes. Raimo could have elicited testimony

from Dugas about the possible placement of the boxes by the

basement door. More importantly, Raimo could have presented

evidence of the smoke shadows to the jury and questioned the fire

investigators about how the obstruction of the passage affected
their conclusion that the fire was intentionally set during the

time frame they suggested.

Second, Higgins asserts that evidence from the fire scene

demonstrates that the state's investigation failed to account for

the presence of an air vent and a half-open split door. He argues

that the state's entire theory of an oxygen-starved fire is

incorrect, and that the fire was actually oxygen-fueled and fast-

burning due to the ventilation. He suggests that, if the fire was

-44-
fast-burning and discovered around midnight, it must have started

later than the fire investigators had surmised.

The district court understandably found that Higgins'

theory on this issue would be difficult to advance. See Dugas III,

slip op. at 14. The firefighters at the scene credibly testified

that the basement contained especially thick smoke and unusually

high carbon monoxide levels, which suggested that the fire had been

oxygen-starved. The clock apparently stopped at 10:44, but

firefighters arrived close to midnight to discover the smoke-filled
room, with little fire damage on the side of the basement through

which the fire was supposedly ventilated or on the upper floors.

However, the value of Higgins' evidence is not just that

it supports an alternate, albeit questionable, theory of the fire's

progression. Higgins also argues that the state's experts' failure

to consider the air vent and their incorrect conclusion that the

door to the basement was closed were "an indication of a poor or

incomplete scene investigation." Regardless of the strength of the

alternative theory, Raimo could have used the actual evidence that
Higgins found (the presence of the air vent and the smoke stains

and melted items indicating that the door was partially open during

the fire) in his cross-examination of the fire investigators.

In short, if Raimo had been advised by an expert, his

cross-examination of the fire investigators could have been far

more pointed. All three investigators testified that they

concluded that the fire was arson because they had eliminated other

causes. Such testimony reflects a recognized technique of fire

-45-
cause and origin investigation, and we do not minimize its

usefulness. But it also has its limits, and Raimo -- unaware of

those limits -- did not press the investigators effectively.

Indeed, based on his inadequate investigation, he had concluded

before the trial began that the state's experts' conclusions were

basically sound.

This case is similar in that respect to United States v.

Correia, No. 00-10246, 2002 U.S. Dist. LEXIS 17218 (D. Mass. Sept.

13, 2002), aff'd, 77 Fed. Appx. 12 (1st Cir. 2003).35 In Correia,
as here, "there were no eye witnesses nor any other direct evidence

as to the cause of the fire. . . . [and] the fire investigator[]

testified that he determined the cause of fire by process of

elimination." Id. at *9. Three other government expert witnesses

concluded that the fire was not electrical, and "[b]ased entirely

on their elimination of other causes, . . . deduced that defendant

must have set the fire." Id. at *10. However, defense counsel did

not seize upon the primary investigator's admission "that the cause

and origin of 20 percent of all fires remain unknown." Id. The
district court found constitutionally ineffective assistance of

counsel:

As an objective matter, [the state expert's]
testimony that the cause and origin of 20
percent of all fires remain unknown, coupled
with the dearth of direct evidence of arson by
defendant, would have permitted the jury to
find reasonable doubt as to defendant's
culpability.... Counsel's fundamentally
flawed trial strategy ignored the one easily

35
Although Correia is an unpublished opinion, we mention it
because of the similarity between its facts and those of this case.

-46-
 available and logical defense to causation and
in essence forced the jury to accept the
result of the government's tenuous process of
elimination. Such conduct fell below the
standard for professionally competent
assistance that is safeguarded by the Sixth
Amendment.

Id. at *10-11 (citation and quotation marks omitted). The district

court granted the defendant's motion for a new trial. We affirmed

and noted that "given the absence of direct evidence of arson and

the fact that the government's experts were accordingly compelled

to attempt to prove the government's case by eliminating other
causes, the frequency of cases of undetermined cause was an obvious

theme to have stressed." Correia, 77 Fed. Appx. at 15.

Here, too, an uninformed cross-examination of the state's

fire experts leads to, at minimum, serious concerns about the

effect on the jury verdict of Raimo's failure to consult an expert.

Put in Strickland terms, in a case as close as this, the likelihood

of a more effective cross-examination with the use of an expert,

and the effect of such cross-examination on the jurors, generates

concerns that may reach "a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694.
IV.

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," Strickland, 466 U.S. at

694. Neither can we say, as a matter of law, that it does rise to

-47-
such a level. We simply hold on this record that there is a

genuine factual issue precluding summary judgment. Cf. Scott, 3

Mass. L. Rep. 309, at *16, *21, *23-24.36 While Higgins's

36
Although Scott is a state trial court decision, answering a
different question under a different body of law, it is worth
summarizing because the basic factual issues are similar. There,
a forensic chemist at the Massachusetts State Crime Laboratory
found a medium petroleum distillate in a fire debris sample, but
inadvertently discarded the sample before trial. 3 Mass. L. Rep.
309, at *4, *17-19. The defendants moved to dismiss the
indictment, and Higgins testified, as a defense expert,

that if he had the actual physical evidence or the
remaining liquid extraction, he could have re-run the
tests to confirm or disagree with [the state chemist's]
findings. . . . If the physical evidence had been
available, Higgins possibly could have conducted tests to
specifically identify the petroleum product as being an
accelerant or a natural component of the fire.

Id. at *6.
The trial court analyzed the motion to dismiss for destruction
of evidence under the standard of "'a reasonable possibility, based
on concrete evidence rather than a fertile imagination, that access
to the destroyed evidence would have produced evidence favorable to
his cause.'" Id. at *14-15 (quoting Commonwealth v. Phoenix, 567
N.E.2d 193, 197 (Mass. 1991)). It concluded that the samples could
have been tested, under existing testing techniques, "to determine
whether the petroleum product was an accelerant or a natural
component of the fire." Id. at *15-16. It further held that the
evidence was material and could create a reasonable doubt:
The defendants have been charged with arson and an
essential element that the Commonwealth must prove is
that the defendants intentionally set the fire. The
Commonwealth conducted tests which indicated that
petroleum products and gasoline were detected in the
samples. If the physical evidence had been available to
the defendants, they could have performed their own
tests, the results of which may have cast reasonable
doubt that they set the fire. Essentially, defendants
may have been able to prove the petroleum products were
already on the premises and were not accelerants
intentionally placed to set the fire.

Id. at *21-22. Nevertheless, the court denied the motion to
dismiss because it found that "[d]efendants' right to a fair trial
will be adequately protected by permitting the defendants latitude

-48-
preliminary report is hardly a coup de grâce, the state presented

a thin circumstantial case, and the jury only agreed to convict

after three days of deliberations.

Fortunately, "[h]abeas doctrine is flexible enough for us

to condition a grant of the writ on the outcome of a further

inquiry" into the nature of the evidence. Ellsworth, 333 F.3d at

6. Accordingly, we vacate the grant of summary judgment and remand

this case to the district court for limited further proceedings.

The district court should order the state to produce all
fire debris samples, carbon strips, laboratory reports,

chromatograms, and other evidence in its possession that was

collected from the fire scene or was the result of analysis of such

material, whether obtained by local, state, or private fire

investigators. The court should give Higgins an opportunity to

analyze this evidence to identify precisely (i.e., not merely

detect, but name) which flammable substances were present in the

debris, and to determine whether the ignitable liquids found and

described by Boudreau were innocuous, as opposed to deliberately
applied accelerants. The state should have an opportunity to

respond to Higgins's analysis. The court should consider whether

Higgins's analysis would meaningfully challenge the state's view of

the evidence. If Raimo's failure to challenge the state's chemical

analysis and to cross-examine the fire investigators on the

evidence of smoke shadows and partial ventilation demonstrates that

during their cross examination regarding the destroyed evidence."
Id. at *24-25. Here, of course, defense counsel did not have the
benefit of Higgins's critique at the time of trial.

-49-
"there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different," Strickland, 466 U.S. at 694, then the court should

find that the defendant was prejudiced by Raimo's deficient

performance and should grant the petition.37

While we are remanding for a specific determination of

whether Higgins's chemical analysis and the evidence of smoke

shadows and ventilation could establish prejudice within the

meaning of Strickland, the district court has some flexibility in
both the procedure and the scope of further proceedings. For

example, the district court may choose to receive written

submissions only, or it may choose to conduct a hearing. It can,

if it chooses, seek additional testimony from the experts that the

state presented at trial, subject, of course, to cross-examination

by Dugas's counsel. Finally, if some or all of the relevant

evidence has been destroyed or degraded, or if the district court

sees other appropriate reasons, the district court has the

discretion to expand the inquiry to encompass any other prejudice
issues. While we seek 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

37
Granting the petition does not necessarily mean that the
petitioner is immediately released. "Courts usually condition the
issuance of a writ, which releases the body of the prisoner from
custody obtained through unconstitutional means, upon the state's
failure to retry the habeas petitioner within a reasonable time in
a way that comports with constitutional dictates." Henderson v.
Frank, 155 F.3d 159, 168 (3d Cir. 1998).

-50-
affected the outcome of the trial? -- we do not constrain the

district court in how it approaches that question or preclude it

from exploring other factual questions that it may find necessary

to answer the Strickland prejudice inquiry.

We emphasize one final point. The 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. The

peculiar circumstances of this appeal play a significant role in
that decision. In most § 2254 petitions alleging ineffective

assistance of counsel, the federal court must defer to the state

court's conclusion regarding prejudice unless it "resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law," 28 U.S.C.

§ 2254(d)(1). Here, however, the state court never reached the

question of prejudice, and we must review the issue de novo. See

Ellsworth, 333 F.3d at 4; Fortini, 257 F.3d at 47. Consequently,

with respect to the prejudice issue, we are effectively in the same

position as if we were considering a § 2255 petition after a
federal criminal conviction. We conclude only that, on the facts

of this closely contested case, in the unusual context wherein we

review a § 2254 petition without deference to a state court

decision on the issue presented, more evidentiary development is

necessary.

Vacated and remanded for further proceedings consistent with

this opinion. Each party is to bear their own costs on appeal.

- DISSENTING OPINION FOLLOWS -

-51-
 HOWARD, Circuit Judge, dissenting. The single issue

raised in this case is whether Attorney Raimo acted incompetently

at the point in time prior to trial when he chose not to hire an

arson expert (or, perhaps, multiple arson experts, since the State

called six experts at trial), and instead chose to focus his efforts

on an identity defense -- i.e., a defense directed at raising

reasonable doubts in the jurors' minds about whether Dugas was the

arsonist. In concluding that Raimo's pretrial decision not to hire

an arson expert was incompetent -- and in concomitantly holding that

the New Hampshire Superior Court's contrary determination was "not

only incorrect but objectively unreasonable," Rompilla v. Beard, 125

S. Ct. 2456, 2462 (2005) -- the majority portrays the decision as

an unusual departure from professional norms, calling only for a

modest and case-specific corrective opinion unlikely to have

repercussions beyond this case.

With respect, I think the majority opinion has broader

implications. As the attorneys and judges who work in the state and

federal trial courts within our jurisdiction surely will notice,

this case involves a professional decision of a type that is not

only common and defensible, but necessary to the practical
functioning of the criminal justice system. These professionals,

who have more than an academic interest in our rulings, read our

habeas and ineffective-assistance-of-counsel opinions with

background knowledge of the deference federal habeas courts are to

give state courts and trial counsel. They understand the broad

discretion the Constitution necessarily confers on trial counsel to

strategically allocate limited temporal and financial resources.

-52-
They will appreciate that, even with the benefit of 20/20 hindsight,

there is little reason to question whether the fire at the Dugas

Superette was an arson. They will notice too that Raimo was

supportably found to have deposed or interviewed all the State's

experts, toured the arson scene, read up on arson, and conferred

with fellow counsel prior to deciding not to hire an expert. In

view of all this, they may well conclude that, under the logic of

the majority's analysis, the hiring (or appointment, in the case of

indigent defendants) of consulting "counter" experts is
constitutionally required in nearly all cases where the prosecution

calls an expert to prove an element of its case. I write separately

to express my disagreement with the majority's ruling and my concern

about its implications.

At the outset, there is a need to clarify the scope of

this appeal. The majority opinion gives the impression that there

is a second issue before us: whether Raimo was incompetent in

promising the jury early in the trial that he would establish that

the fire was "not arson," but then failing to deliver on that

promise. See, e.g., ante at 12, 23, 26. There is no such issue.
First, petitioner has not made an "unfulfilled promise" argument,

either before the state court or on collateral review. Second,

petitioner did not make opening and closing arguments part of the

habeas record, and there is no other evidence of Raimo having made

such a promise.

The majority's conclusion that there is an unfulfilled-

promise issue in this case is based entirely on Raimo's statement

to the jury, prior to its taking a view of the fire scene, that

-53-
"what 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." Ante at 10. Indeed, the majority goes so far

as to suggest that this statement was a de facto admission to the

jury by Raimo that "[m]uch of Dugas's defense . . . depended on

Raimo's ability to convince the jurors that the State's experts

might be wrong in concluding that the fire was arson." Ante at 23.

No such admission is made or implied by Raimo's statement, which can
as easily be taken to refer to the State's allegation that Dugas was

the arsonist -- the allegation Raimo contested vigorously -- as to

the less-contested allegation that the fire was an arson.38 And in

any event, even if the statement is assumed to refer to the State's

anticipated arson evidence, it is hardly the sort of unusual

"promise" from defense counsel that the majority makes it out to be.

The record does not contain evidence that Raimo promised

to prove that the fire was not an arson. Nor does it suggest that

38
Indeed, a de facto admission by Raimo to the jury that he
needed to establish a reasonable doubt whether the fire was an
arson in order to secure an acquittal for his client, had it
actually been made, would have been an inexplicable blunder -- one
that itself would raise Sixth Amendment concerns. The State's
arson case was strong, its identity case was weaker, and the two
were logically independent of one another, making it perfectly
rational for Raimo to vigorously challenge the State's evidence
that Dugas was the arsonist while at the same time leaving its
evidence that the fire was an arson largely uncontested. Cf.
Haines v. Risley, 412 F.3d 285, 289-90 (1st Cir. 2004) (observing
that trial counsel sometimes reasonably forego weaker alternative
defense theories to avoid detracting from a primary defense theory
or otherwise losing credibility with the jury). The majority's
contrary argument -- that Dugas's overall prospects for an
acquittal depended on Raimo's ability to convince the jurors that
the State's arson experts might be wrong, and that Raimo knew this,
see ante at 22-23 -- is hard to fathom.

-54-
Raimo told the jury that his defense depended on his ability to

raise reasonable doubts whether the fire was an arson. Rather, the

record reveals that Raimo made a somewhat modest effort through

cross-examination to raise doubts about whether the State had proved

arson beyond a reasonable doubt, but focused the majority of his

attention and energy on challenging the State's logically unrelated

identity case. The record does not bear out the contrary impression

left by the sections of the majority opinion just discussed, and the

majority's many references to the "not arson" defense.
This leaves the question actually raised in petitioner's

brief: whether the state court unreasonably determined that Raimo

acted competently at the point in time, prior to trial, when he

decided not to hire an expert and instead to emphasize his identity

defense. A review of how the state court disposed of this argument,

conducted in the manner required by the habeas statutes, reveals

that the answer is no.

Following an evidentiary hearing on Dugas's motion for a

new trial, the state court issued an opinion rejecting the claim

that Raimo's pretrial decision-making was constitutionally flawed.
See State v. Dugas, No. 98-S-1899, slip op. at 3-6 (N.H. Super. Ct.

Aug. 12, 2002) (orders on motions for new trial and discovery). The

court premised its holding on a finding that Raimo's decision not

to hire a consulting expert was tactical, and was made after a

diligent and thorough investigation and consideration of the

benefits and perils of a contrary path. Id. at 5-6. This finding

essentially compelled the conclusion that Raimo's decision did not

constitute ineffective assistance of counsel. Id. (applying the

-55-
standard by which the constitutionality of pretrial investigations

are measured -- that a strategic decision made after a thorough

investigation is almost never incompetent -- as articulated in

Strickland v. Washington, 466 U.S. 668, 691 (1984)). The majority

says that this finding was sufficiently at odds with the record to

meet the extraordinarily demanding requirement for upsetting a state

court factual finding on federal collateral review: that the

finding be "based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding." 28
U.S.C. § 2254(d)(2). But this is not so.

It is undisputed that Raimo, who at the time of trial had

more than two decades of experience trying criminal cases, undertook

an investigation prior to deciding whether to hire an arson expert.

Raimo conceded on cross-examination by the State39 that he toured

the crime scene with his client and certain of the State's experts,

who explained to him their opinions that the physical evidence

39
Raimo was called as a witness by Dugas at the hearing on his
motion for new trial. On direct examination, Raimo expressed an
opinion that he had been constitutionally ineffective and made many
of the "concessions" and "admissions" so heavily relied on by the
majority. As commonly happens in post-conviction proceedings,
Raimo fell on his sword for his former client. Thereafter,
however, under cross-examination by the State, Raimo testified to
the particulars of his investigation. These were the particulars
that led the state trial judge to reject Raimo's self-denigrating
testimony on direct and to conclude that the decision not to hire
an expert was a tactical one made after a thorough investigation.
In crediting Raimo's direct testimony, the majority opinion
does not correctly apply 28 U.S.C. § 2254(d)(2), which requires
that we defer to the state court's factual findings unless they
were based on an unreasonable construction of the evidence. As
explained momentarily, the state court's findings that Raimo's
investigation was thorough and his decisions tactical are based on
a reasonable construction of the evidence. We thus were obliged to
reject those aspects of Raimo's testimony which were at odds with
these conclusions. The majority has not done so.

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suggested arson; deposed or interviewed each of the State's experts;

concluded that the State's experts were formidable and would impress

the jury; independently educated himself on arson; and consulted

with fellow defense counsel about the likely efficacy of hiring his

own expert under the circumstances.

Raimo also mentioned two additional concerns. First, he

not only concluded that retaining his own expert would likely be a

waste of time and money (presumably because the strength of the

State's evidence and experts led him to conclude that an expert good
enough to go toe-to-toe with the State's experts likely would concur

in the conclusion that the fire was an arson), but he also took into

account the fact that, in rare cases, hiring one's own expert can

have the effect of precluding an attorney from pursuing in good

faith lines of argument designed to raise doubts about the State's

experts' methods and conclusions. Second, he considered the risk

that the state somehow would discover the potential expert's

opinion, which might further damage his client's defense and limit

his options. The majority, following the lead of the district

court, emphasizes that a consulting expert need not be disclosed.
But the more significant point is that, based on his pretrial

investigation, Raimo had legitimate practical litigation concerns

that consulting with an expert would result in a net loss to his

client. In the specific circumstances of this case, these

considerations, whatever their weight, were not wholly

insubstantial. Or at the very least, the state court did not act

unreasonably in so concluding.

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 In any event, the totality of this evidence amply

supports the state court's determination that Raimo's decision not

to retain an expert was tactical, considered, and based on a

diligent and thorough investigation. The majority is led to

conclude otherwise by means of what is, at bottom, a tautology:

that, in an area involving scientific knowledge in which one is not

well versed, one cannot have sufficiently investigated whether to

hire a defense "counter" expert without retaining an expert to see

whether an expert is needed. But this line of reasoning ignores the
fact that experienced defense counsel and trial judges regularly

must make difficult resource-allocation judgments prior to trial.

The state court supportably found that Raimo, an experienced

criminal trial attorney, took stock of the State's evidence and

multiple expert witnesses -- all of whom quickly agreed that the

fire was an arson for reasons that they explained to Raimo,

presumably to his satisfaction -- and concluded that the State would

be able to put on an overwhelming case of arson; that he considered

the possibility that hiring his own expert would be a waste of time

and resources and conceivably could damage his client's case; and
that he therefore decided to invest his time (and Dugas's money) in

what he perceived to be a more fruitful defense theory: that the

State could not prove beyond a reasonable doubt that his client was

the arsonist because there were others who had the opportunity and

motive to commit the crime. Perhaps these choices were unwise, but

they simply cannot ground a ruling that the state court acted

unreasonably in rejecting Dugas's argument that Raimo "was not

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functioning as the 'counsel' guaranteed [Dugas] by the Sixth

Amendment." Strickland, 466 U.S. at 687.

To be sure, Raimo characterized his performance as

inadequate on direct examination, and he attributed his decision not

to hire an expert to overconfidence in his theory that, if the fire

were an arson, somebody else was the perpetrator. This testimony

forms the basis for much of the majority's analysis. But as already

noted, see supra note 2, client-friendly, self-inculpatory

characterization and attribution testimony of this sort -- hardly
unprecedented in post-conviction proceedings -- should have been

disregarded because it is at odds with what the state court

supportably found. And in any event, as the majority recognizes,

Raimo's opinions about the law and his conduct have no bearing on

our analysis. See Strickland, 466 U.S. at 688 (emphasizing that

counsel's performance must fall below "an objective standard of

reasonableness") (emphasis supplied); see also Cofske v. United

States, 290 F.3d 437, 444 (1st Cir. 2002) (stating that, under

Strickland, "as long as counsel performed as a competent lawyer

would, his or her detailed subjective reasoning is beside the
point").

In sum, we should have upheld as a "[]reasonable

determination of the facts in light of the evidence presented" the

state court's finding that Raimo engaged in a thorough investigation

of the pros and cons of hiring a consulting expert prior to making

his decision. 28 U.S.C. § 2254(d)(2). And this should have led us

to conclude that the state court's denial of the new trial motion

did not involve "an unreasonable application of" Strickland. 28

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U.S.C. § 2254(d)(1); see Strickland, 466 U.S. at 691 ("strategic

choices made after thorough investigation of the law and facts

relevant to plausible options are virtually unchallengeable").

A conclusion that the state court reasonably determined

that Raimo provided Dugas with competent representation would have

negated any need to consider the issue of prejudice. But even if

the issue of prejudice were to be properly reached, the analysis

provided by the majority in support of its remand order is

unpersuasive. As an initial matter, the "report" submitted in
connection with Dugas' summary judgment papers -- the document which

grounds the majority's prejudice ruling -- is not the sort of expert

report contemplated by the Federal Rules. It is, in fact, only a

brief, unsworn, unauthenticated letter from putative expert Michael

K. Higgins, which in its most relevant section contains hearsay

declarations about how the State may have violated certain

laboratory standards in handling the arson evidence.40 The fact

that the Higgins letter does not constitute or contain admissible

evidence, see, e.g., Gorski v. New Hampshire Dept. of Corrections,

290 F.3d 466, 475 (1st Cir. 2002) (party opposing summary judgment

40
The most significant violation identified by Higgins in his
letter is the State's alleged abridgment of ASTM E-1387-95, Section
8.1.2.2., which, Higgins says, "requires the exact identification"
of any flammable liquid identified at trial as an accelerant. (As
the majority notes, the State introduced evidence at trial that
there was an accelerant on the papers set ablaze in the Superette's
basement, but it did not identify the accelerant). It is worth
noting, however, that the text of the relevant standard, submitted
with Higgin's letter, does not explicitly call for such an
identification. Instead, it merely states that "[e]very case file
that includes a positive identification of an ignitable liquid or
residue must include the standard chromatogram used to confirm the
identification." ASTM E-1387-95, Section 8.1.2.2.

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must do so with admissible evidence),41 and that it otherwise does

little to undermine the plentiful evidence that the fire was an

arson -- evidence that ranges far beyond the evidence that the

arsonist placed an accelerant on the papers that were ignited --

should have led the court to conclude that a remand is unwarranted.

In conclusion, the majority states that its opinion is

narrow and tailored to the facts of this case, and that it has not

established a new rule of constitutional law requiring the retention

or appointment of double-checking counter experts in the many
contexts -- e.g., fingerprints, chemical analyses of narcotics,

ballistics, origin of firearms -- where prosecutors use experts to

explain scientific or otherwise specialized evidence. But law is

made less by what an opinion says than by what the opinion causes

41
The majority suggests that the State "probably" has forfeited
its right to challenge the admissibility of the Higgins letter.
Ante note 23. The suggestion is incorrect. Because we should
leave undisturbed final judgments that are demonstrably correct, it
is long settled that we are free to affirm on any ground supported
by the record -- whether that ground has been argued by the
respondent/appellee or not. See, e.g., Sammartano v. Palmas del
Mar Properties, Inc., 161 F.3d 96, 97 n. 2 (1st Cir. 1998). The
imperative to leave substantively correct final judgments
undisturbed is strong in all cases, but it is difficult to conceive
of a situation where it would be stronger than where the final
judgment under consideration is a state criminal conviction
challenged in federal court on collateral review.
The majority further suggests that the inadmissibility of the
Higgins report was, in effect, cured by his sworn testimony given
in connection with Dugas's motion for discovery before the state
trial court, which covered "the issues identified . . . in his
letter." Ante at note 23. But the transcript of Higgins'
testimony shows little overlap with the "issues" identified in the
letter and on which the majority relies in ordering a remand. At
that hearing, Higgins merely testified on direct examination what
he wanted in terms of discovery from the State and why; on cross-
examination, he merely strived (unsuccessfully) to explain the
unsupported characterization of the requirements of ASTM E-1387-95,
Section 8.1.2.2., set forth in his unsworn letter.

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practitioners to do as they engage in the predictive processes

inherent in legal practice and reasoning. Cf. Holmes, The Path of

the Law, 10 Harv. L. Rev. 457, 461 (1897). In view of the facts of

this case, there is reason for concern that, notwithstanding the

majority's minimalist assurances, defense attorneys will read

today's opinion as embracing, at the least, a presumption that they

must spend precious time and money on constitutionally required

double checks of most prosecution science experts -- double checks

that never before were required and reasonably may be eschewed in
many circumstances. So too is there reason to fear that trial

judges will read this opinion as constraining their discretion in

deciding, in the case of indigent defendants, whether and when to

expend limited public funds on court-appointed defense experts for

purposes of double-checking the prosecution. And thus would the

already slow and costly criminal trial process unnecessarily become

slower and more costly.

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