Dugas v. Coplan

United States Court of Appeals
For the First Circuit

No. 06-2358

PETER DUGAS,

Petitioner, Appellant,

v.

JANE COPLAN, WARDEN,
NEW HAMPSHIRE STATE PRISON FOR MEN,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge, and
Lynch and Lipez, Circuit Judges.

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

October 18, 2007
 LIPEZ, Circuit Judge. Peter Dugas, convicted of arson in

the New Hampshire Superior Court, asks us to review for a second

time his petition for a federal writ of habeas corpus on the ground

that he received constitutionally ineffective assistance of

counsel. To succeed with his claim, Dugas must demonstrate both

deficient performance by his attorney and prejudice, i.e., "a

reasonable probability that, but for counsel’s unprofessional

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

Strickland v. Washington, 466 U.S. 668, 694 (1984).

In our first review, we agreed with the district court

that the performance of Dugas's defense counsel was deficient, but

we concluded that the court should not have resolved the prejudice

issue on a summary judgment record. Instead, further proceedings

were needed in the district court to determine whether the

deficiency in counsel's performance resulted in prejudice within

the meaning of Strickland. Dugas v. Coplan, 428 F.3d 317, 333,

341-42 (1st Cir. 2005) ("Dugas IV"). On remand, the district court

allowed further discovery by the parties, considered additional

affidavits, and held an evidentiary hearing. The district court

concluded again that Dugas had not established prejudice within the

meaning of Strickland and denied his habeas petition. Finding no

clear error in the district court's prejudice determination, we

affirm.

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 I.

Dugas was convicted of arson for setting a fire that

heavily damaged his family's grocery store, the Dugas Superette, in

Nashua, New Hampshire, on October 23, 1999. Dugas managed the

store and owned a minority share of the business. He told police

that, on the night of the fire, he had locked the store and left

with another employee at approximately 10 p.m. He said he first

learned of the fire when his wife called him at about 11:30 p.m.

while he was picking up his daughter. State fire investigators

found no signs of forced entry into the building, no likely cause

from electrical or mechanical systems, and no accidental cause for

the fire. The investigators concluded that the fire was

intentionally set and that it had been started by igniting an

accelerant on a pile of papers in the store's basement.

The police interpreted enhanced videotape pictures from

the store's security camera to show that Dugas left at 10 p.m., as

he had said, but then reentered the store a few minutes later. The

tape showed Dugas reentering, proceeding to the rear office, then

exiting the rear office and turning off the light. He then

disappeared from view for about one minute, reappeared from the

rear of the store, and moved quickly toward the front door. Dugas

initially denied that he had reentered the store, but at trial he

recalled that he had returned to check on a cash drawer. He denied

that he caused the fire.

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 At trial, Dugas's defense counsel, Ray Raimo, attempted

to present two defense theories: first, that the fire had not been

arson, and second, that even if the fire had been intentionally

set, someone other than Dugas had set it.1 Early in the trial,

Raimo made it clear that he was, at least in part, pursuing a "not

arson" theory of defense when he said to the jury: "[W]hat we're

going to be asking ourselves during this trial is how this fire

started and why . . . I want to just make it clear . . . where the

State is bringing in all of these witnesses . . . we think they’re

wrong." To prepare for this line of defense, Raimo interviewed the

state's investigators and found them all to be credible and

formidable witnesses. He toured the fire scene and concluded that,

from a layperson's perspective, the physical evidence seemed

consistent with the state's arson theory. However, he did not hire

an arson expert to testify on Dugas's behalf nor did he consult

with an expert in preparing his cross-examination of the state’s

experts.

1
To support this second defense theory, Raimo attempted to
show that P.J. Kulas, a former employee at the Superette, may have
set the blaze. At trial, he sought to present evidence that Kulas
was nearing the end of a criminal trial on aggravated sexual
assault charges and that he would want to settle old scores he had
against the Dugas family before he was convicted and sent to
prison. Raimo presented testimony regarding Kulas's resentment
toward the Dugases and cross-examined Kulas's wife regarding his
whereabouts on the night of the fire. However, the trial judge did
not allow Raimo to ask about the charges against Kulas or the
trial. Dugas's initial habeas petition challenged the exclusion of
this evidence, but he did not appeal the district court's ruling on
that issue.

-4-
 In furtherance of the state's theory that Dugas had set

the fire when he returned to the store shortly after 10:00 p.m., as

shown on the videotape, the state presented six expert witnesses

who laid out the forensic evidence that the fire was intentionally

set using an accelerant such as charcoal lighter fluid. They

testified that the fire began in a stack of papers on the basement

floor and initially flared up but then became oxygen-starved and

smoldered, generating intense heat and smoke but little flame.

Consistent with this theory, the firefighters who responded to the

scene testified that they found the basement door closed and the

basement full of heavy smoke and intense heat. The state also

presented two experts who explained the techniques that had been

used to enhance the exceptionally poor quality of the surveillance

video, as well as an alibi witness for P.J. Kulas, the former store

employee whom the defense theorized had set the fire, see supra

note 1.

The state's strongest evidence against Dugas was its

expert testimony on arson. Raimo confined his challenge of this

evidence to cross-examination of the state's expert witnesses. He

attempted to raise the possibility that the fire had started

accidentally and pointed out some questionable evidence handling

procedures. However, his cross-examination, lacking the aid of an

arson consultant or an expert witness of his own, was problematic:

[T]he focus of Raimo's cross-examination of
the state's experts was unclear, and many of

-5-
 the experts' scientific conclusions went
unchallenged. Raimo did not ask the kinds of
questions that a trained fire investigator or
forensic scientist would consider important.
Instead, his questions amounted to an
unfocused set of miscellaneous criticisms and
evinced his lack of scientific knowledge.
Despite his earlier statement to the jury that
he believed that the state's arson experts
were wrong, Raimo presented no alternative
theory of the fire.

Dugas IV, 428 F.3d at 324. After three days of deliberations at

the completion of an eight day trial, the jury returned a guilty

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

His conviction was affirmed on direct appeal. State v. Dugas, 782

A.2d 888 (N.H. 2001)("Dugas I").

Dugas then moved for a new trial based on a claim of

ineffective assistance of counsel. In support of his motion, Dugas

offered a report from Michael Higgins, his proposed arson expert.

The state trial court held a hearing on the motion, taking

testimony from Higgins and Raimo, Dugas's trial counsel. Raimo

said at the hearing that he had been over-confident in the strength

of Dugas's defense and that he was "still shocked by the verdict."

He admitted that he had no scientific background or technical

knowledge regarding arson. He explained that, although there was

no financial impediment to hiring an expert, he had thought it

might be a problem to do so because of a requirement, as he saw it,

that he notify the state in order to have access to the fire scene.

Then the state would have wanted to depose or talk with his expert.

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The state court concluded that Raimo had considered the benefits

and perils of hiring an arson expert and made an appropriate

strategic decision not to do so. The state trial court thus held

that Raimo's performance was not constitutionally deficient, and

denied Dugas's motion for a new trial. State v. Dugas, No. 98-S-

1899 (N.H. Super. Ct. Aug. 12, 2002) ("Dugas II"). Because the

court found that Raimo’s performance had not been deficient under

the first prong of Strickland, it did not make any findings

regarding prejudice. The New Hampshire Supreme Court declined to

grant review.

Dugas then filed a petition in the district court for a

federal writ of habeas corpus. The district court reviewed the

trial record, affidavits, and hearing testimony from the state

court proceedings. On summary judgment, the district court held

that Raimo's performance had been constitutionally deficient.

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

2004) ("Dugas III"). The district court explained:

Based on the record, the state court's
conclusion that Raimo carefully investigated
the case and made a tactical decision not to
consult with or hire an expert is both an
unreasonable determination of the facts and an
unreasonable application of the federal
standard. . . . Raimo apparently believed . .
. that he would have had to make his expert
available to the state for questioning,
whether or not he intended to call the expert
to testify at trial, which would be
detrimental if the expert agreed with the
state’s experts. The state court recognized
that ordinarily the defense would not have to

-7-
 disclose an expert who was used only for
consultation but concluded, without
explanation, that the necessary disclosure in
this case presented a "peril" to the defense.
Given the lack of legal support or
explanation, the state court's conclusion was
unreasonable that the defense would have faced
a “peril” if Raimo consulted an expert.

Dugas III, slip op. at 11-12 (citations omitted). The district

court then turned its focus to the prejudice analysis required by

Strickland. Reviewing the state court record de novo, the court

concluded that "Higgins's opinions do not undermine the court’s

confidence in the outcome of the criminal trial." Id. at 13-16.

Therefore, the district court denied Dugas’s habeas petition.2 Id.

at 18.

On appeal, a majority of the panel agreed with the

district court that Raimo's performance was constitutionally

deficient. However, turning to the prejudice prong of the

Strickland analysis, we held that the district court had erred in

granting summary judgment in favor of the state. We remanded the

case to the district court for further evidentiary development on

the issue of prejudice, explaining:

We perceive a distinct possibility that, if
Raimo had consulted an arson expert, the
outcome of the trial would have been
different. We cannot say, as a matter of law,
that this possibility does not rise to the
level of "a probability sufficient to
undermine confidence in the outcome." Neither

2
The district court also rejected Dugas's Confrontation Clause
claim. Dugas did not appeal that decision.

-8-
 can we say, as a matter of law, that it does
rise to such a level.

Dugas IV, 428 F.3d at 341 (quoting Strickland, 466 U.S. at 694)

(internal citation omitted). Specifically, we noted three major

issues that had been highlighted in Higgins's report. First, he

alleged that there had been flaws in the state forensic chemist's

analysis of samples taken from the fire scene. Second, he posited

that the fire had been much faster-burning than the state alleged

and pointed to potential sources of ventilation. Third, he

identified evidence of smoke shadows, i.e., clean spots on the

walls and floors, indicating Dugas's alleged path to the basement

had been blocked by boxes on the night of the fire. We held that

"these three issues, taken together . . . [were] sufficient to

raise a genuine dispute of material fact concerning prejudice."

Id. at 335. As a result, we instructed the district court to order

the state to turn over all of the evidence from the fire scene so

that Higgins could conduct a more thorough analysis. We then asked

the district court to "consider whether Higgins's analysis would

meaningfully challenge the state's view of the evidence." Id. at

342. We emphasized that "[t]he case for prejudice here is close;

we do not conclude that there was prejudice, but only that, in the

circumstances of this appeal, Dugas has raised sufficient doubts

about the outcome to avoid summary judgment." Id. at 343.

-9-
 The district court followed our instructions, ordering

the evidence turned over to Higgins for testing and analysis.3 The

court then considered Dugas's petition for habeas corpus with the

benefit of additional affidavits from Higgins and two state fire

investigators. It also conducted an evidentiary hearing at which

the experts from both sides testified in response to questions from

the court and counsel. The district court concluded that

"Higgins's opinions would not have been helpful to the defense"

because they are "speculative, inconsistent, contrary to the

factual evidence, and significantly less credible and less

persuasive than the opinions given by [the state's experts] at the

trial and by [the state's experts] at the evidentiary hearing."

Dugas V, slip op. at 38. Thus, the district court denied Dugas's

habeas petition and this appeal followed.

II.

The standards of review applied in the earlier stages of

this case and in the appeal before us today require some

explanation. Federal review of habeas petitions is normally

governed by the high level of deference to state court findings set

3
The charcoal strips and carbon disulfide vials prepared by
Morris Boudreau, the state's forensic analyst, during his testing
of the fire debris were not found following the remand. As such,
Higgins never examined them. However, as we explain below, testing
the original charcoal strips would not have materially aided
Higgins in his contention that the fire debris had been
contaminated through improper collection procedures. Thus, the
loss of the strips and vials is immaterial to our analysis.

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forth in the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. AEDPA allows federal

courts to grant habeas relief after a final state adjudication only

if the state court proceedings "resulted in a decision that was

contrary to, or involved an unreasonable application of clearly

established federal law, as determined by the Supreme Court" or was

based on an "unreasonable determination of the facts." 28 U.S.C.

§ 2254(d). However, this standard applies only when the claim

being reviewed at the federal level was "adjudicated on the merits

in State court proceedings." Id. When the state court has never

addressed the particular federal claim at issue, federal review is

de novo. Pike v. Guarino, 492 F.3d 61, 67 (1st Cir. 2007). As we

have noted, a federal court "can hardly defer to the state court on

an issue that the state court did not address." Fortini v. Murphy,

257 F.3d 39, 47 (1st Cir. 2001).

In its first review of Dugas's habeas petition, the

district court applied the AEDPA standard of deference to state

court findings. That deference did not prevent the district court

from concluding that "the state court's conclusion that Raimo

carefully investigated the case and made a tactical decision not to

consult with or hire an expert is both an unreasonable

determination of the facts and an unreasonable application of the

federal standard." Dugas III, slip op. at 11. Because the state

court had never reached the question of prejudice, the district

-11-
court applied a de novo standard to the state court record and

concluded on summary judgment that Dugas had not been prejudiced by

Raimo's deficient representation.

At that stage in the proceedings, we reviewed the

district court's decision de novo. Dugas IV, 428 F.3d at 327. We

recently articulated the rationale for our de novo review in this

context in another case:

When the district court undertakes no
independent factfinding in a habeas case, we
are effectively in the same position as the
district court vis-à-vis the state court
record and have the ability to review that
record from the same vantage point.
Consequently, the district court's recension
of that record will engender de novo review.

Pike, 492 F.3d at 68. As noted, we found the state court record

sufficient to "raise a genuine dispute of material fact concerning

prejudice" and remanded to the district court for further

evidentiary development. Dugas IV, 428 F.3d at 341. The district

court, following our instructions, allowed Dugas additional

discovery and held an evidentiary hearing at which both Dugas's

expert and the state's experts provided new testimony.4

4
AEDPA limits the availability of evidentiary hearings during
federal habeas proceedings when a petitioner has failed to develop
the factual basis of the claim at the state level. 28 U.S.C. §
2254(e)(2). However, the lack of factual development on the
prejudice issue here was due to the state court's decision not to
reach that issue and not because of any lack of diligence by Dugas.
Thus, Dugas is not required to meet the stringent requirements of
§ 2254(e)(2) to obtain such a hearing. See Williams v. Taylor, 529
U.S. 420, 431-33 (2000).

-12-
 The new fact-finding by the district court alters the

standard of review that we must apply in this second appeal. Now

that the district court has held its own evidentiary hearing, our

review is comparable to the review that would apply if we were

considering a direct criminal appeal or a § 2255 petition after a

federal criminal conviction. See Dugas IV, 428 F.3d at 343; see

also Pike, 492 F.3d at 68, 75; 2 Steven Alan Childress & Martha S.

Davis, Federal Standards of Review § 13.06, at 13-50 (3d ed. 1999).

When the district court has held an evidentiary hearing and made

its own determinations as to the weight of the evidence and the

credibility of witnesses, its findings are entitled to significant

deference. Pike, 492 F.3d at 68; see also McNair v. Campbell, 416

F.3d 1291, 1297 (11th Cir. 2005); McGregor v. Gibson, 248 F.3d 946,

951 (10th Cir. 2001). Thus, we conduct a de novo review of legal

issues, but disturb the district court's factual conclusions only

if they are clearly erroneous. Pike, 492 F.3d at 75; United States

v. DiCarlo, 575 F.2d 952, 954-55 (1st Cir. 1978)(applying clearly

erroneous standard to district court findings in § 2255

proceeding). A finding of fact is clearly erroneous only when,

upon a thorough assessment of the record, the reviewing court is

left with "the definite and firm conviction that a mistake has been

committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948); see also Pike, 492 F.3d at 75.

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 Before applying this standard of review in the present

case, we have one further complexity to address — the interplay

between the district court's factual findings on disputed issues,

all of which are subject to the clearly erroneous standard, and its

ultimate determination on the prejudice issue, which is often

characterized as a mixed question of law and fact. See, e.g.,

Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. 1994)(citing Strickland,

466 U.S. at 698) ("[A]n inquiry into the effectiveness of counsel

is almost always a mixed question of law and fact."). The standard

of review we apply to mixed questions of fact and law "depends, in

the last analysis, on the extent to which a particular question is

fact-dominated or law-dominated." Pike, 492 F.3d at 68.

We remanded Dugas's petition to the district court

because we could not say, as a matter of law, that Raimo's failure

to consult an arson expert prior to trial rose to the level of

prejudice required by Strickland. Dugas IV, 428 F.3d at 341.

Instead, we characterized the prejudice inquiry as raising a

"genuine factual issue." Id. On remand, we instructed the

district court to provide "the answer to a specific question — is

there a reasonable probability that Higgins's analysis of the

chemical evidence and the use of evidence of smoke shadows and

ventilation in cross-examining the fire investigators could have

affected the outcome of the trial?" Id. at 342-43. The answer to

this question required the district court to hear new testimony,

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consider its weight and credibility, and make numerous factual

determinations that the trial judge is uniquely suited to make.

See Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985)

("[O]nly the trial judge can be aware of the variations in demeanor

and tone of voice that bear so heavily on the listener's

understanding of and belief in what is said."); González-Soberal v.

United States, 244 F.3d 273, 279 (1st Cir. 2001) (remanding the

prejudice question to the district court because that court "has a

better perspective from which to evaluate the possible impact of

[the omitted evidence] on the jury and its verdict"). Given the

fact-dominated nature of the prejudice inquiry for which we ordered

remand here, we review the district court's decision on prejudice

for clear error.

Dugas takes a decidedly different view of the role of the

district court on remand. He argues that "[w]hen the district

court found Higgins['s] testimony to be admissible [because he was

a qualified expert], it should have left the weight of that

evidence to the jury and issued a writ of habeas corpus requiring

a new trial." However, this argument misunderstands the prejudice

inquiry required by Strickland and the purpose of our remand. We

did not ask the district court to make a determination on the

admissibility of Higgins's testimony. Indeed, Higgins's

qualifications had never been questioned at any stage in these

proceedings. If the mere admissibility of Higgins's testimony had

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been determinative here, we would have simply granted Dugas's

petition in the first instance rather than remanding for additional

factual development. The district court's task on remand was to

apply the prejudice prong of the Strickland test to a more

developed record. In doing so, the district court was entitled —

indeed, required — to make a judgment about the persuasiveness of

Higgins's testimony and then factor that assessment into the

prejudice analysis. Moreover, Dugas does not argue, nor could he,

that the failure to introduce a qualified expert's testimony

amounts to prejudice per se. See Scarpa, 38 F.3d at 13-14

("[A]ttorney error, even when egregious, will almost always require

analysis under Strickland's prejudice prong.").

In the Strickland analysis, prejudice exists when "'there

is a reasonable probability that, but for counsel's unprofessional

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

Dugas IV, 428 F.3d at 334 (quoting Strickland, 466 U.S. at 694).

"A reasonable probability is one 'sufficient to undermine

confidence in the outcome.'" González-Soberal, 244 F.3d at 278

(quoting Strickland, 466 U.S. at 694). A showing of "'some

conceivable effect on the outcome'" is not enough. Id. (quoting

Strickland, 466 U.S. at 693). However, there is no requirement

that "the defendant prove that the errors were more likely than not

to have affected the verdict." Id. Instead, Strickland requires

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that we focus on the "'fundamental fairness of the proceeding.'"

Id. (quoting Strickland, 466 U.S. at 696).

"In weighing the prejudicial effect of counsel's errors,

we must consider the totality of the evidence before the judge or

jury." Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). In

cases where defense counsel's deficient performance resulted in a

failure to introduce particular evidence or to challenge the

credibility of the government's witnesses on cross-examination, we

have outlined three factors that need to be considered in the

prejudice determination: first, the strength of the prosecution's

case; second, the effectiveness of the defense that was presented

at trial; third, the potential value of the new evidence and new

avenues for cross-examination "in undermining the credibility of

the government witnesses' testimony." González-Soberal, 244 F.3d

at 278.

In our first review of this case, when the issue was the

appropriateness of the summary judgment disposition, we said that

"[t]his case lay on a knife edge, and it would not have taken much

to sway at least some jurors towards acquittal." Dugas IV, 428

F.3d at 336. In that circumstance, we noted that "the threshold

for prejudice is comparatively low because less would be needed to

unsettle a rational jury" and, as a result, summary judgment was

inappropriate. Id. at 336, 341. Nonetheless, this assessment did

not alter the responsibility of the district court on remand to

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decide in the first instance if Higgins's theories, now elaborated

in supplemental affidavits and at an evidentiary hearing, "would

have shaken the jury's belief in the essential elements" of the

government's case at trial. See Stephens, 294 F.3d at 226.

III.

On remand, the district court considered two additional

affidavits from Higgins. These affidavits were based on his

initial inspection and testing of the fire scene in August 2000 and

on his examination in December 2005 and January 2006 of the store's

electrical system. Higgins also examined eleven samples taken from

the fire that had been previously tested by the state's expert and

evidence held by the Nashua Police Department. The court also

considered new affidavits from Richard Wood, a certified fire and

explosion investigator, and Linda Bouchard, a Criminalist II with

the New Hampshire State Police Forensic Laboratory, filed by the

state in response to Higgins's analysis. Additionally, the court

held an evidentiary hearing at which Higgins, Wood, and Bouchard

testified in response to questions from the court and counsel.

Higgins's affidavits and hearing testimony challenged the

state's evidence on three grounds: the collection and chemical

analysis of the samples from the fire scene, the origin and

development of the fire, and the condition of the fire scene during

the jury view. The district court concluded that Higgins's

testimony on these three points was insufficiently persuasive to

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undermine the evidence presented by the government's witnesses and

that, as a result, Dugas had not been prejudiced by his defense

counsel's deficient performance. As we explain below, we find no

clear error with respect to this conclusion or the factual findings

on which it is based.

A. Chemical Analysis

In our first review of this case, we were particularly

concerned about the flaws Higgins had identified in the state

forensic chemist's analysis of the fire debris. Dugas IV, 428 F.3d

at 334. We explained our concern by quoting Higgins's state court

affidavit:

[The applicable standard] requires the exact
identification of flammable liquids
(accelerants). [The state's experts'] report
. . . gives a conclusion that they detected
medium petroleum distillates . . . As you can
see they said they detected but nowhere does
it say they identified. In other words, their
conclusion says they might have a flammable
liquid, but what they fail to say is that they
may not have one.

Id. at 336. However, following our remand, Higgins himself

examined the chromatograms from the debris samples and identified

the flammable liquid on two of them as charcoal lighter fluid. He

testified at the evidentiary hearing that two of the chromatograms

were "relatively identical" to the reference chromatograms the

state had made from charcoal lighter fluid taken from the store.

Thus, Higgins himself now seems to agree that even if the standards

requiring specific identification of an accelerant had been

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followed, the resulting testimony would not have helped the

defense.

In his testimony at the evidentiary hearing, Higgins

instead pressed an argument that the chromatograms were abnormal in

that they contained some of the lighter components of the

accelerant. Lighter components, he explained, generally burn more

quickly than the heavier ones and so the presence of the lighter

components suggests that the sample had been contaminated or

improperly collected. Bouchard effectively countered this

contention at the hearing. She said that everything she saw in the

chromatograms fell into the category of medium and not light

hydrocarbons. Furthermore, if the debris had been thoroughly

saturated with accelerant and not completely charred, some of the

lighter hydrocarbons could be expected to remain in the sample. In

addition, she explained that any minor discrepancies between the

debris chromatogram and the reference chromatogram could best be

explained by the fact that the charcoal lighter fluid sample could

be tested directly while the fire debris had to be heated in the

lab to extract the chemicals in it and transfer them to a charcoal

strip for testing. This means that "the chromatogram that you are

going to get as a result of doing this kind of extraction is not

going to be a true representation of that liquid if you ran the

liquid straight." Bouchard also indicated that, because of this

extraction process, a direct examination of the charcoal strips,

-20-
which had been lost by the time of our remand, would not have been

helpful in determining whether some form of contamination of the

evidence had occurred.

Weighing Higgins's theory of contamination against this

evidence, the district court concluded that Higgins's critique of

the chemical analysis by the state is "unpersuasive and

insufficient to support a prejudice determination." Dugas V, slip

op. at 33. This finding is not clearly erroneous.

B. Origin and Development of the Fire

At trial, the state's theory was that the fire at the

Dugas Superette had been lit by Dugas a few minutes after 10 p.m.

and that by 10:44 p.m. it had grown hot enough to short circuit the

wires powering an electric clock in the store. The state's experts

concluded that the fire had begun quickly, generating substantial

heat and smoke, but that, lacking an oxygen source, the fire had

been reduced to a smolder when firefighters arrived just before

midnight.

Both Higgins and the state appear to agree that if the

fire had had a source of oxygen and had begun at roughly 10 p.m.,

it would have consumed the entire store before the firefighters

arrived. The state explained that the entire store was not

engulfed because of the lack of ventilation in the basement. In

his affidavits, Higgins asserted that there was, in fact, a source

of oxygen for the fire. He theorized that the fire was actively

-21-
burning and growing when the firefighters arrived, but that the

basement was too dark and the smoke too thick for the firefighters

to properly assess this fact. Therefore, he contended, the fire

must have started much later than the state argued at trial, and

long after Dugas had left the building.5

To support his theory, Higgins asserted that the basement

door was partially open during the fire. The door to the basement

at the Dugas Superette has two halves split vertically, each about

eighteen inches wide, which may be opened independently. Higgins

contended that the physical evidence shows that the right side of

the door was open during the fire. The left side of the doorjamb

is clean, indicating that it was closed and therefore protected

from the smoke and heat, while the right side of the jamb is

stained. He also pointed to a piece of melted plastic adhered to

5
A surveillance video introduced at trial showed Dugas leaving
the store at 10 p.m., briefly reentering, and then leaving again a
few minutes later. The state's theory at trial was that he set the
fire during the brief reentry. The surveillance video system used
by the store was outdated and barely functional. The video speed
had to be adjusted to correspond to real time by a forensic video
analyst, and the image had to be enhanced to make it more legible.
Nonetheless, it was barely viewable and undated. Despite these
flaws, Dugas admitted at trial to the sequence of events as
depicted in the tape. Thus, for the purpose of this prejudice
review, the weakness in the videotape evidence is immaterial.
Although Higgins never stated a particular time at which he
theorizes the fire began, he seemed to suggest that the fire began
sometime after 10:30 p.m. This timing, he claimed, undermined the
state's case by showing that the fire started well after the
videotape evidence showed Dugas leaving the store at a few minutes
past 10 p.m.

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the basement side of the right door as evidence that it was open

during the fire, allowing the plastic to melt onto it.

Wood, the state's fire investigator, asserted at the

evidentiary hearing that the physical evidence shows that both

sides of the door were closed when firefighters arrived. He

explained the staining on the right side of the doorjamb by noting

that one side of the door was propped open by firefighters' hoses

after they began to battle the fire, allowing smoke, heat, and soot

to stain the jamb on that side. Additionally, he noted that the

melted plastic banner extended across both sides of the door,

indicating that the door was fully closed when the banner first

melted.

Higgins's ventilation theory rests on his contention that

the basement door was open, acting as a chimney and allowing fresh

air to be drawn in through a basement vent. As the district court

noted, this theory directly contradicts the testimony of Lieutenant

Keith Anderson of the Nashua Fire Department, who asserted at trial

that the door to the basement was closed when he arrived and that

the smoke and heat conditions worsened as soon as the basement door

was opened. To counter this testimony, Higgins speculated that the

firefighters did not realize that the door had two halves and that

one half was already opened when they arrived.

The district court found that Higgins's speculation would

be unlikely to persuade the jury to discredit Anderson's clear and

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specific testimony that the door was closed when firefighters

arrived, and found Wood's explanations for the staining on the

doorjamb and the position of the banner more persuasive. As a

result, the court found that "Higgins's [ventilation] theory is

not supported by the facts and is otherwise not credible." There

is no clear error in this finding.

C. Condition of the Fire Scene During the Jury View

Higgins also testified that the state had misled the jury

during its view of the fire scene by not placing boxes precisely

where they had been on the night of the fire. Higgins contended,

based on his observation of smoke shadows, i.e. clean spots on the

otherwise soot-covered walls and floor, that boxes of cooking oil

were stacked three high in the narrow passage between a sandwich

display case and a fish cooler, leaving only about four and a half

inches between the boxes and the case. He insisted that, if these

boxes had been present during the jury view, the jury would have

understood that "the state's theory of how Peter Dugas committed

arson could not possibly be correct." He asserted that it was

"physically impossible for Dugas to have taken the path within the

store the state claimed he took the night of the fire."

However, Wood explained at the evidentiary hearing that

even with the boxes stacked as Higgins claims, passing between the

boxes and the cooler would still not be "physically impossible."

Wood described the fish cooler as "tapered from the base up to the

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top as most deli coolers are" so the passage was much narrower at

the floor than at waist height. Wood testified: "Certainly you

could put your foot in that space between the box and the fish

cooler and then fit your upper body through the upper portion."

At trial, Dugas was questioned about whether he could

have fit through this narrow opening between the fish cooler and

the display case. He answered, rather equivocally, "Not very

well." The prosecutor asked, "And were there things in the way?"

Dugas responded, "Yeah, there's a whole bunch of oil boxes there .

. ." Dugas was even asked by the prosecutor if the boxes were

still where they had been on the night of the fire. Dugas

responded, "I don't remember. Mostly everything is still there.

I know my dad took a box of oil out of there at some point but --"

Then the prosecutor asked again, "Could you have squeezed through

there if you wanted?" Dugas again replied, "Not very easily. It's

a tight space and I'm not a small guy." As the district court

noted, this exchange illustrates that the jury already had before

it the issue of whether the passageway between the cooler and the

display case was too narrow for Dugas to pass through. Even when

asked directly, Dugas never asserted that passing through with the

boxes in place would have been "physically impossible."

Weighing Higgins's assertions regarding the location of

the boxes against this testimony by Wood and Dugas, the district

court concluded:

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 If Higgins's opinion about the stacked boxes
had been available to present at trial, it
might have bolstered Dugas's testimony that he
could not have easily squeezed through that
space, assuming Dugas would agree that the
boxes were stacked as Higgins suggests.
Higgins's opinion, even if it were accepted as
true, however, does not prove that the state's
theory was impossible. As best, it is
cumulative of Dugas's own testimony that he
could not have fit through that area easily or
very well. As such, Higgins's opinion does
little, if anything, to undermine confidence
in the jury's verdict.

Dugas V, slip op. at 37. There is no clear error in this finding.

IV.

We remanded this case to the district court for further

proceedings that would permit the district court to determine

whether "Higgins's analysis would meaningfully challenge the

state's view of the evidence" and whether "'there is a reasonable

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

result of the proceeding would have been different.'" Dugas IV,

428 F.3d at 342 (quoting Strickland, 466 U.S. at 694). At the

conclusion of these proceedings, with a thoughtful explanation of

its reasoning on each issue before it, the district court

determined that Higgins's theories were not persuasive enough to

meaningfully undermine the government's case against Dugas and

affect the outcome of the trial. Therefore, the district court

concluded that Raimo's deficient representation did not prejudice

Dugas within the meaning of Strickland. There was no clear error

in this determination.

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Affirmed.

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