Submitted: January 11, 2018
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Lamont Booth appeals from the district
court's denial of his petition for a writ of
habeas corpus with respect to his Arkansas arson conviction.
Booth raises several theories of ineffective assistance of
counsel, but we review only the issue identified in the
district court's certificate of appealability: whether
trial counsel was ineffective for failing to challenge expert
testimony that Booth was a suspect. See Carter v.
Hopkins, 151 F.3d 872, 874 (8th Cir. 1998)
("[A]ppellate review is limited to the issues specified
in the certificate of appealability."). We affirm.
October 5, 2012, the Little Rock, Arkansas Fire Department
responded to a house fire. Firefighters determined that the
fire started in a pile of clothing in a bedroom, but found no
ignition source. Fire Marshal Ryan Baker was called to
investigate. He noted that the house was in disarray and a
glass dining room table had been shattered. He also
interviewed the homeowner, Booth's estranged wife, who
shared a series of vulgar, threatening text messages sent to
her from Booth on the day of the fire. In one message, Booth
admitted to shattering the table.
Booth's trial, the State presented Fire Marshal Baker as
an expert, who testified that the fire was caused by human
involvement. When the State asked him if he was able to
develop a suspect as a result of his investigation, Fire
Marshal Baker responded, "I was, " and named
"the defendant." Defense counsel did not object.
The jury found Booth guilty of arson, and he was sentenced to
12 years imprisonment. Booth's conviction and sentence
were affirmed on direct appeal. Booth's petition for
post-conviction relief was denied on procedural grounds, and
he failed to timely appeal.
then filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging, in relevant part,
ineffective assistance of counsel. Although Booth did not
raise ineffective assistance of counsel in the state courts,
the district court found that his procedural default should
be excused under Martinez v. Ryan, 566 U.S. 1
(2012), and ordered an evidentiary hearing. Following the
evidentiary hearing, the magistrate judge recommended denying
the writ but issuing a certificate of appealability as to
"the issue of whether trial counsel was ineffective for
failing to challenge Fire Marshal Baker's testimony that,
from his investigation, he was able to develop [Booth] as a
suspect." See 28 U.S.C. § 2253(c)(3)
(certificate of appealability must state "specific issue
or issues" for appeal). The magistrate judge reasoned
that Fire Marshal Baker did not state Booth caused the fire,
but "merely noted that . . . he developed [Booth] as a
suspect." Even if trial counsel performed deficiently
for failing to challenge Fire Marshall Baker's testimony,
the magistrate judge concluded, no prejudice occurred because
there was ample evidence from which the jury could find Booth
committed the crime. The district court adopted the
magistrate judge's proposed findings and recommendations
in their entirety.
prevail on an ineffective assistance of counsel claim, a
convicted defendant must establish two prongs: (1) "that
counsel's performance was deficient" and (2)
"that deficient performance prejudiced the defense . . .
[so] as to deprive the defendant of a fair trial."
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Our review of counsel's performance is "highly
deferential, " with a "strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at
689. Upon reviewing Booth's ineffective assistance of
counsel claim de novo, New v. United States, 652
F.3d 949, 952 (8th Cir. 2011), we find he has failed to
establish either prong.
alleges that Fire Marshal Baker's testimony that he
developed Booth as a suspect went beyond the bounds of proper
expert testimony and thus trial counsel was ineffective for
failing to challenge it. The Arkansas Rules of Evidence allow
for expert testimony "in the form of an opinion or
otherwise" if such testimony "will assist the trier
of fact to understand the evidence or to determine a fact in
issue." Ark. R. Evid. 702. An expert qualified as a fire
investigator may testify as to his opinion on the fire's
origin and possible causes based on evidence. Weisgram v.
Marley Co., 169 F.3d 514, 519 (8th Cir. 1999). A fire
investigator does not, however, have "free rein" to
testify to theories not supported by evidence. Id.
Moreover, we have suggested that a fire investigator should
not "usurp the providence of the jury" by
testifying as to who caused the fire. See Brandt Distrib.
Co. v. Fed. Ins. Co., 247 F.3d 822, 826 (8th Cir. 2001).
Fire Marshal Baker did not testify that Booth caused the
fire, but rather that he developed Booth as a suspect based
on his investigation. This testimony was not unfounded
speculation, Weisgram, 169 F.3d at 519, nor did it
improperly "usurp the providence of the jury, "
Brandt Distrib., 247 F.3d at 826. We therefore find
that trial counsel's choice not to challenge this
testimony did not render his performance deficient.
counsel's performance were deficient, Booth has not shown
prejudice. To establish prejudice, Booth must show "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. Booth claims that Fire Marshal Baker's testimony
influenced the jury. But, the fact that Booth was a suspect
would have hardly been news to a jury summoned to determine
his guilt or innocence at trial. And, simply showing that the
testimony "had some conceivable effect on the outcome of
the proceeding" is not enough to establish prejudice.
Id. at 693.
alleges that without this testimony the jury would have
acquitted him. However, this allegation is belied by the
circumstantial evidence of Booth's guilt that was
presented to the jury at trial. Fire Marshal Baker testified
that the fire was caused by human involvement, and there was
evidence that Booth was in the home on the day of the fire
and had sent vulgar, threatening text messages to his wife
earlier that day-including one in which he admitted to
shattering a glass dining room table. We therefore conclude
that trial counsel's failure to challenge the testimony
did not render "the result of the trial unreliable or
the proceeding fundamentally unfair, as is required before we
can set aside a conviction on ineffective assistance of
counsel grounds." Olesen v. Class, 164 F.3d
1096, 1102 (8th Cir. 1999) (internal quotation marks
these reasons, we affirm the district court's denial of