Derrick Lamont Booth v. Wendy Kelley, (originally named Ryan Baker)
No. 17-1218
United States Court of Appeals For the Eighth Circuit
February 21, 2018
Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff
Submitted: January 11, 2018
Filed: February 21, 2018
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
Derrick Lamont Booth appeals from the district court‘s1 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.
On 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.
At 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
Booth then filed a petition for writ of habeas corpus pursuant to
To prevail on an ineffective assistance of counsel claim, a convicted defendant
Booth 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.”
Here, 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.
Even if 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.
Booth 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
For these reasons, we affirm the district court‘s denial of Booth‘s petition for a writ of habeas corpus.