United States v. Higgs No 10-0007

Decided: Nov. 23, 2011

Petitioner Dustin John Higgs was convicted of three counts of first-degree premeditated murder, first-degree murder committed in the perpetration or attempted perpetration of a kidnapping, and kidnapping resulting in death arising out of the January 27, 1996 murders of three women in the Patuxent National Wildlife Refuge. He received nine death sentences. Higgs brought a motion for relief under 28 U.S.C. § 2255, claiming that his constitutional rights to due process of law and effective assistance of counsel were violated by the introduction of Comparative Bullet Lead Analysis (CBLA) evidence at trial. The district court denied this motion, and the Fourth Circuit Court of Appeals affirmed. The government presented CBLA evidence through the testimony of Kathleen Lundy, an examiner with the Elemental Analysis Group of the FBI laboratory who compared the elemental composition of the .38 caliber bullets recovered from the three crime scenes and from Higgs’s apartment. According to Lundy, the lead composition of the .38 caliber bullet recovered from two different shootings that Higgs was allegedly involved in matched the lead composition of eighteen of the .38 caliber bullets found at Higgs’s apartment and at the murder scene. Higgs contended that his due process rights under Brady v. Maryland were violated by the government’s failure to produce two reports that he asserted could have been used to either exclude or further impeach the CBLA evidence presented by Lundy. Alternatively, Higgs contended that his trial counsel were constitutionally ineffective under Strickland v. Washington because they failed to discover the reports on their own or present comparable and available expert testimony to challenge the CBLA evidence.

The Fourth Circuit held that the government did not violate its Brady obligation by failing to produce the two reports to Higgs’s counsel, and that the performance of Higgs’s counsel was not constitutionally deficient, and in any case, Higgs was not entitled to relief because he failed to demonstrate that he was prejudiced by the government’s failure to disclose the reports to him prior to trial or by the admission of the CBLA at trial. Higgs further contended that his post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of newly discovered studies on CBLA evidence. The Court again held that Higgs failed to demonstrate that counsel was constitutionally deficient and even if they had been, Higgs was not prejudiced as a result.

Full Opinion

-Sara I. Salehi

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