IN THE UTAH COURT OF APPEALS

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Herbert Landry,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

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OPINION

Case No. 20110480‐CA

F I L E D

(December 13, 2012)

  2012 UT App 350

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Fourth District, Provo Department, 100402172

The Honorable Steven L. Hansen

Attorneys: Cory A. Talbot and M. Benjamin Machlis, Salt Lake City, for Appellant

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

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Before Judges Orme, Roth, and Christiansen.

ROTH, Judge:

¶1 Herbert Landry appeals from the dismissal of his petition for postconviction

relief. Landry’s petition asserted five claims, including two claims alleging violations of

his due process rights, an insufficient evidence claim, and separate claims of ineffective

assistance against trial counsel and appellate counsel. We reverse and remand for an

evidentiary hearing or other appropriate proceedings on the limited issue of whether

appellate counsel was ineffective when he did not raise on direct appeal the ineffective

assistance of trial counsel. We affirm on the remaining issues.

¶2 Landry was convicted of aggravated arson, a first degree felony, for setting his

Provo, Utah apartment on fire. See generally Utah Code Ann. § 76‐6‐103 (LexisNexis
2012). At his trial, Landry’s landlord testified that he had told Landry, who had been a

problematic tenant, that he was being evicted as of the date of the fire, and two

neighbors testified that they had seen Landry leave the building shortly before the fire

began. Two investigating officers testified for the prosecution that the fire was the result

of arson, based on burn patterns on the floor, the dearth of personal items in the

apartment, and alerts to three separate areas within the burnt‐out apartment and to one

of Landry’s socks and his shoe by a dog trained to detect ignitable liquids. The defense

did not call an arson expert to refute the State’s investigators, nor did trial counsel

consult an expert, despite her admitted lack of experience in either arson cases or fire

investigation. Instead, on cross‐examination, counsel elicited testimony that the state

crime lab had not found any ignitable liquids in the samples from the scene other than

heptane, a construction adhesive commonly used in carpet installation, which the State

stipulated was not a suspected accelerant. Further, counsel obtained an admission that

the investigators had not located any containers containing flammable liquids at the

apartment or in the hotel room where Landry had planned to spend the night. The

defense called a third neighbor to testify that he had seen another person at Landry’s

apartment moments before the fire began. Landry also took the stand in his own behalf

to explain that he had left the apartment to rent a hotel room and planned to return that

evening for a final walk‐through inspection with the landlord and to pick up his

personal items, including clothing, medications, and financial documents, which he had

left packed in a suitcase.

¶3 After he was convicted, Landry appealed. The only issue raised on appeal was

the sufficiency of the evidence. This court rejected that claim and affirmed Landry’s

conviction. See State v. Landry, 2008 UT App 461U (mem.).

¶4 Landry then filed the petition for postconviction relief that is at issue here.

Landry asserted, first, that his due process rights had been violated by the State’s

presentation of experts who he claims used discredited investigation techniques in

determining that the cause of the fire was arson. Second, he argued that his due process

rights were violated by a deficient fire investigation, which, if properly done, could

have led to the discovery of exculpatory evidence and possibly another suspect. Third,

he contended that the evidence presented at trial was insufficient to support his

conviction. And finally, he alleged that both his trial counsel and appellate counsel were

ineffective because trial counsel failed to “investigate expert opinions” on the cause of

the fire and to “mount a ‘non arson’ defense”and appellate counsel failed to raise trial

20110480‐CA 2
counsel’s shortcomings as an issue on appeal in the form of an ineffective assistance of

counsel claim.

¶5 On the State’s motion, the district court dismissed all but the claim of ineffective

assistance of appellate counsel on the basis that the dismissed claims were procedurally

barred because they either were or could have been raised on direct appeal. The court

dismissed Landry’s final claim on the basis that appellate counsel’s performance was

not deficient as a matter of law. The court also reasoned that “[t]he jury was well within

its rights to draw the inferences it did,” i.e., that the fire was arson‐caused and that

Landry started it, because “the evidence against [Landry] was quite strong and

compelling” and therefore Landry had “failed to show that there is a reasonable

possibility that but for [any] errors the result would have been different.” “The district

court’s decision granting the State’s motion to dismiss presents questions of law that we

review for correctness.” Medel v. State, 2008 UT 32, ¶ 16, 184 P.3d 1226

I. Ineffective Assistance of Appellate Counsel

¶6 Landry contends that he is entitled to a hearing on his ineffective assistance of

appellate counsel claim. “[I]n order to proceed with a petition for post‐conviction relief,

a petitioner’s pleadings must contain sufficient facts that, when viewed in the light most

favorable to him, demonstrate some obvious injustice or the violation of a constitutional

right.” Id. ¶ 22 (footnote citation omitted). Thus, in order to sufficiently state a claim of

ineffective assistance of counsel, Landry must allege facts showing that “his counsel’s

performance fell below an objective standard of reasonable professional judgment,

thereby prejudicing him.” See Moench v. State, 2002 UT App 333, ¶ 10, 57 P.3d 1116. The

district court concluded that Landry’s petition failed to state a claim because “the fact

alone that trial counsel may not have consulted an expert and did not call [a defense]

expert at trial is not enough to establish ineffective assistance of counsel,” thus

rendering harmless appellate counsel’s failure to raise a claim for ineffective assistance

of trial counsel. Landry’s complaint about trial counsel’s performance, however, is

broader than simple dissatisfaction with counsel’s decision not to call or consult an

arson expert. He contends that his trial counsel completely failed to mount a non‐arson

defense in the face of a prosecution based on weak circumstantial evidence that the fire

was actually the result of an intentional act and prosecution expert testimony based on

discredited investigation techniques. According to Landry, counsel’s deficiencies

included failing to consult a fire investigation or arson expert despite counsel’s

20110480‐CA 3
admitted unfamiliarity with arson, failing to call an expert to rebut the State’s arson

theory, and, in the absence of such expert testimony, failing to effectively cross‐examine

the State’s experts and other witnesses regarding both the factual and opinion evidence

that supported its arson theory. Landry argues that these failures were prejudicial

because had counsel prepared a non‐arson defense, including a robust cross‐

examination of the State’s witnesses and rebuttal expert arson testimony, there was a

reasonable likelihood that he would have been acquitted.

¶7 To support his contention, Landry attached to his petition a report (Fire

Classification, Origin, Cause and Responsibility Analysis), prepared by David Smith, an

expert in fire science and investigation techniques who Landry located after trial. In his

report, Smith cited the prosecution’s fire investigators’ “fail[ure] to follow recognized

practices and methodologies” as the reason for their reaching the conclusion that the

cause of the fire was arson, “an opinion” that Smith characterized as “flawed,” “not . . .

justified by the physical evidence,” and incapable of withstanding “scientific

challenge.” For example, Smith asserted that the investigators did not conduct a fire

reconstruction, a significant tool for

“see[ing] the fire patterns on the exposed surfaces[, which]

enables the investigator to make a more accurate origin

analysis.” Proper reconstruction of the fire area of origin is

required in an attempt to establish the fuel load (amount of

available fuel), heat release rate (rate at which a fuel

provides energy release), and fuel arrangement (ability to

spread).

(Quoting National Fire Protection Association Document 921, A Guide for Fire and

Explosion Investigation 135 (2004).) Nor did the investigators complete an electrical arc

survey, which “professional investigators [use] in establishing a fire’s area of origin.”

Because all fires, no matter the source, “will compromise electrical circuits in th[e]

area,” Smith explained that “[t]he fact that investigators apparently found no arcing

establishes the lack of proper scene examination techniques or the incorrect area of

origin.” Smith’s report concludes, “This fire is properly classified as undetermined . . .

due to the Investigating Authorities’ failure to identify the arrangement

(target/secondary fuels), volume (fire load) and type (heat release rate) of fuels present”

as well as due to “ignition sources present within the area of origin . . . not be[ing]

20110480‐CA 4
scientifically excluded as competent ignition sources. These sources include smoking

materials and electrical sources.” Smith further concluded that “[n]o credible physical

evidence exists to indicate that this fire was the result of an intentional act by Herbert

Landry,” explaining that burn patterns of the type identified by the local fire

investigators as being indicative of an intentional fire “are routinely observed, due to air

entrainment, and are of little evidentiary value, barring a positive laboratory analysis of

an ignitable liquid.” Thus, Landry’s claim that trial counsel performed ineffectively is

more complex and better supported than simply “the fact alone that trial counsel may

not have consulted an expert and did not call [a defense] expert at trial,” which the

district court stated as a basis for its dismissal.

¶8 Cases dealing with similar allegations of ineffective assistance seem to support

Landry’s position that his claim has sufficient potential, at least when viewed at the

pleading stage, to warrant further proceedings. For example, in Dugas v. Coplan, 428

F.3d 317 (1st Cir. 2005), the defendant was convicted of arson for setting fire to the

grocery store that he managed and owned. Id. at 319–20. At trial, the prosecution called

fire experts, who testified that the fire was intentionally set based on the lack of flame or

charring damage expected from an electrical fire and the burn patterns on a pile of

papers that indicated the pile had been tightly packed. Id. at 320, 323–24. Additionally, a

canine trained to detect fire accelerants “‘alerted’” to the pile of papers, some of which

subsequently tested positive for ignitable liquids. Id. at 320. The defendant’s conviction

was upheld on appeal, and he subsequently filed a petition for a writ of habeas corpus,

citing ineffective assistance of counsel for inadequately pursuing a non‐arson defense,

particularly for not consulting an expert. Id. at 319, 325. That petition was denied by the

district court. Id. at 326. On review, the First Circuit acknowledged 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,” but it

nevertheless determined that counsel’s failure to fully investigate a non‐arson defense

was deficient and prejudicial in this case for several reasons. Id. at 328–30. For one,

“challenging the state’s arson case was critical to [the] defense” because the only other

available defense—another suspect—was “difficult to mount and fraught with

evidentiary problems.” Id. at 329. In addition, the state’s case depended on arson

evidence whose weaknesses would have been revealed by a thorough, expert‐assisted

defense investigation. Id. The First Circuit also found it significant that although this

was defense counsel’s first arson case and he lacked knowledge of fire investigation

principles, he decided to accept the state’s characterization of the scene rather than seek

20110480‐CA 5
guidance from an outside expert. Id. at 329–30. Counsel’s challenge to the state’s experts

therefore was limited to cross‐examination, as it was in Landry’s case. See id. at 324. But

because of counsel’s inexperience and unfamiliarity with arson, his cross‐examination

was unfocused and failed to challenge critical conclusions asserted by the state’s

experts. Id. at 324, 331. The First Circuit therefore concluded that counsel’s failure to

mount a non‐arson defense, particularly his failure to consult an arson expert, “cannot

be classified as a conscious, reasonably informed tactical decision” and that if counsel

had pursued such a defense, there was “a distinct possibility that . . . the outcome of the

trial would have been different.” Id. at 332, 341.

¶9 In Houskeeper v. State, 2008 UT 78, 197 P.3d 636, our supreme court reached a

similar conclusion regarding counsel’s failure to “present an adequate defense” when

considering whether to grant postconviction relief. Id. ¶¶ 39, 2 (internal quotation

marks omitted). There, the defendant was charged with aggravated sexual assault and

forcible sodomy. Id. ¶ 7. The juvenile court held a hearing to determine whether it

should retain jurisdiction over the defendant, who was seventeen, or order that he be

tried as an adult under the presumption that “cases involving inherently violent and

aggressive offenses by juveniles sixteen years of age and older will be transferred to the

district court.” Id. ¶¶ 8, 7 (footnote citation and internal quotation marks omitted). At

the hearing, defense counsel did not call an expert to rebut the state’s experts’ opinions

that the sexual encounter was not consensual. Id. ¶ 11. The defendant was bound over

to the district court, where he was tried by a jury. Id. ¶¶ 13–14. At trial, defense counsel

put on medical experts who opined that the victim’s injuries could be consistent with

“first‐time consensual sex.” Id. ¶ 44. As a result, the defendant was convicted of

attempted rape, a lesser included offense of aggravated sexual assault that did not

include an element of violence or aggression, and acquitted of forcible sodomy. Id.

¶¶ 14 & n.9, 40. The supreme court concluded that counsel was ineffective because his

failure to call adequate defense witnesses at the retention hearing fell below an objective

standard of reasonableness and “may have caused significant prejudice to [the

defendant] . . . [based on] the severity of the consequences that resulted from being tried

as an adult.” Id. ¶¶ 47, 51 (omission and second alteration in original) (emphasis and

internal quotation marks omitted). See also Dees v. Caspiri, 904 F.2d 452, 454–55 (8th Cir.

1990) (per curiam) (explaining that where the expert evidence is critical to the case,

“counsel ha[s] a duty to make a diligent investigation of the forensic evidence and its

potential weaknesses” and “to garner the expertise necessary to cross examine” the

expert); State v. Templin, 805 P.2d 182, 187 (Utah 1990) (explaining that where the state’s

20110480‐CA 6
case depended on the testimony of the victim of rape, counsel’s failure to “adequately

investigate the underlying facts of [the] case, including the availability of prospective

defense witnesses” cannot constitute “reasonable professional assistance” (footnote and

internal quotation marks omitted)).

¶10 Landry’s petition includes evidence in the form of an expert’s affidavit that on its

face supports his allegations that counsel’s decision not to consult an arson expert

despite her unfamiliarity with arson investigation or defense, as well as her failure to

put on a competent non‐arson defense as a result, cannot be attributed to a reasonable

trial strategy and amounted to deficient performance. See generally State v. Litherland,

2000 UT 76, ¶ 19, 12 P.3d 92 (requiring the defendant to show deficient performance,

which means that counsel’s representation “fell below an objective standard of

reasonable professional judgment” and the challenged action cannot be considered

sound strategy). The State argues that even if we are inclined to view Landry’s petition

as adequately presenting a challenge to counsel’s performance, it was nevertheless

wanting because “he failed to assert how he was prejudiced by appellate counsel’s

performance.” See generally id. (requiring the defendant to demonstrate that the deficient

performance prejudiced him, meaning that it likely affected the outcome of the case).

¶11 Although Landry does not include a specific prejudice statement regarding

appellate counsel, this is not fatal to his claim. After all, Landry asserts that but for trial

counsel’s ineffectiveness, it was reasonably likely that he would not have been

convicted, and he does identify the acts or omissions by trial counsel that he viewed as

deficient and describes how trial counsel’s purported deficiencies prejudiced his case.

The prejudice resulting from appellate counsel’s failure to raise a claim of ineffective

assistance of trial counsel claim is, in this posture, automatic: If trial counsel’s

deficiencies were prejudicial, appellate counsel’s failure to raise those deficiencies is

necessarily prejudicial in the same way and to the same extent. The prejudice from

Landry’s claim that appellate counsel was deficient in failing to assert on appeal trial

counsel’s ineffective representation is therefore implicit in his argument that he was

prejudiced by trial counsel’s deficient performance. Thus, Landry has pleaded a prima

facie case of ineffective assistance of appellate counsel, and it was error to dismiss that

aspect of his petition for failure to state a claim.1 See Moench, 2002 UT App 333, ¶ 10

1. The district court explained that the prejudice prong was lacking because “the

(continued...)

20110480‐CA 7
(explaining, in the context of considering whether the defendant’s claim was properly

dismissed as frivolous for failing to state a claim, that because the defendant had

alleged facts to establish each element, he had made a prima facie claim of ineffective

assistance of counsel). Consequently, we remand for further proceedings on Landry’s

ineffective assistance of appellate counsel claim.

II. Remaining Claims

¶12 We affirm the dismissal of Landry’s remaining claims for postconviction relief.

These claims include assertions that Landry’s trial counsel was ineffective and that his

1. (...continued)

evidence against [Landry] was quite strong and compelling.” As Landry points out,

however, this type of assessment, which was apparently based on the judge’s

impression of the evidence in the criminal case over which he had also presided, is not

appropriate when determining simply whether a petitioner has stated sufficient

grounds to proceed on his petition. For the first time on appeal, the State contends that

its motion ought to instead be considered as one for summary judgment, which would

allow the court to consider material outside the petition, presumably including the

district court’s own recollections and assessment of the evidence at trial. Even if we

were to accept the State’s contention that this was a summary judgment motion, we

cannot agree that the court’s conclusion, which is based on the merits of the case, is

proper at this early stage in the proceedings. See generally Utah R. Civ. P. 12(b) (“If, on a

motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be

granted, matters outside the pleading are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment and disposed of as provided

in Rule 56, and all parties shall be given reasonable opportunity to present all material

made pertinent to such a motion by Rule 56.”). Rather, Landry’s burden is merely to set

forth “sufficient facts in the petition to establish each element of the relief sought,” a

burden that we conclude he has satisfied. See Moench v. State, 2002 UT App 333, ¶ 10, 57

P.3d 1116 (explaining that to withstand a motion for dismissal of an ineffective

assistance claim, a postconviction petitioner must allege facts that show that “his

counsel’s performance fell below an objective standard of reasonable professional

judgment, thereby prejudicing him”); see also Utah R. Civ. P. 65C(d)(3) (“The petition

shall state . . . in plain and concise terms, all of the facts that form the basis of the

petitioner’s claim to relief . . . .”).

20110480‐CA 8
due process rights were violated when the fire investigators failed to conduct their

investigation according to current established scientific methods, destroyed potentially

exculpatory evidence, failed to investigate other plausible suspects, and testified as to

their conclusion that the cause of the fire was arson when that conclusion was based on

outdated and discredited fire investigation techniques. The State responded that these

claims were procedurally barred because they could have been raised on direct appeal.

See generally Utah Code Ann. § 78B‐9‐106(1)(b)–(c) (LexisNexis 2012) (identifying claims

that were or could have been brought on direct appeal as circumstances under which a

petitioner’s claims are procedurally barred); id. § 78B‐9‐106(2)(a) (placing the initial

burden on the state to assert preclusion). We conclude that Landry has not carried his

burden of demonstrating that these claims are not procedurally barred.

¶13 Landry’s brief largely focuses on the viability and merits of his claims, without

discussion of the procedural bar. Apparently in recognition of this limitation, Landry

attempts to assert an exception to preclusion in a single paragraph, in which he

contends that our failure to consider his due process claims “will result in a

fundamental miscarriage of justice.” In support of his argument, Landry cites to three

United States Supreme Court cases in which the exception is considered in the context

of when a state prisoner can receive federal habeas review for constitutional violations

that are procedurally barred in state court. To the extent his ineffective assistance of trial

counsel and due process claims are implicated by his ineffective assistance of appellate

counsel claim, they are mooted by our decision to remand for further proceedings. We

will not undertake further consideration of his claims because Landry has failed to

adequately address how the Supreme Court cases he cites apply to overcome the

preclusive effect of the procedural bar in this case. See generally State v. Davie, 2011 UT

App 380, ¶ 16, 264 P.3d 770 (mem.) (“An issue is inadequately briefed when the overall

analysis of the issue is so lacking as to shift the burden of research and argument to the

reviewing court. Utah courts routinely decline to consider inadequately briefed

arguments.” (citations and internal quotation marks omitted)). In addition, Landry

generally asserts that this court should review whether his attorneys were ineffective

for failing to raise his due process claims in earlier proceedings. Except in relation to his

claim that trial counsel did not effectively cross‐examine or rebut the State’s experts

regarding the evidence indicating arson, Landry did not make an ineffective assistance

argument with respect to due process violations in his petition for postconviction relief,

nor does his briefing address the issue in any meaningful way. See generally id. For these

20110480‐CA 9
reasons, we uphold the dismissal of the ineffective assistance of trial counsel and due

process claims as procedurally barred.2

III. Conclusion

¶14 Landry’s petition for postconviction relief states a claim for ineffective assistance

of appellate counsel sufficient to survive the motion to dismiss and to entitle him to an

evidentiary hearing or other proceeding at which the merits of his claim may be

evaluated. We affirm the dismissal of all his other claims.

____________________________________

Stephen L. Roth, Judge

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¶15 WE CONCUR:

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Gregory K. Orme, Judge

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Michele M. Christiansen, Judge

2. It appears that Landry has abandoned his claim regarding the sufficiency of the

evidence on appeal as he neither identifies it as an issue presented for review nor

addresses this claim in the analysis section of his brief. We therefore affirm its dismissal

without further consideration.

20110480‐CA 10