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Bozelko v. Roberge

United States District Court, D. Connecticut

May 30, 2017

CHANDRA BOZELKO
v.
GARY ROBERGE

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          Michael P. Shea United States District Judge.

         The petitioner, Chandra Bozelko, is currently serving the probationary period of her sentence. In this habeas corpus action filed pursuant to 28 U.S.C. § 2254, the petitioner challenges her 2007 conviction based on four separate incidents involving larceny or attempted larceny, identity theft, illegal use of a credit card, and forgery.

         I. Factual Background

         The Connecticut Appellate Court determined that the jury could have found the following facts.

The [petitioner] was employed by Kate's Paperie, a paper products and gift store, between November 5, 2003, and January 24, 2004. Kate's Paperie accepted major credit cards, and store employees had access to the signed credit card receipts, which included the customer's name and full credit card account number.
In December, 2003, Pamela Williams purchased items from Kate's Paperie in Greenwich. She paid for these items by using her American Express credit card. Shortly thereafter, Williams examined her American Express monthly statement and discovered that approximately $3000 had been charged to her card by a Greenwich boutique without her knowledge or authorization. American Express investigated the charges and determined that the charges were fraudulent. Williams' credit card was deactivated and a new card using a new account number was issued to her. Using this new card, Williams made other purchases from Kate's Paperie. In March, 2005, several purchases were charged to Williams' new American Express account without her knowledge or authorization. These purchases were made online from Blissout, Inc., Amazon.com, Inc., Sephora USA, Inc., and The Finish Line, Inc.
On January 20, 2005, Paul Gerst, a Federal Express employee, attempted to deliver two packages to 133 Wild Rose Drive in Orange. The packages required the addressee to sign a receipt indicating that she had received them in order for Gerst to leave them. The homeowner at 133 Wild Rose Drive was not home, so Gerst did not leave the packages. As Gerst was getting back into his truck, the [petitioner] came out of a neighboring house. This house was numbered 183 Wild Rose Drive. The [petitioner] informed Gerst that the packages were misaddressed. She told him that they should have gone to her home at 183 Wild Rose Drive, not 133 Wild Rose Drive. The [petitioner] then signed for the packages using the name “S. Bosis.”
Prior to January, 2006, John Hillgen lived at 133 Wild Rose Drive. On several occasions, packages that did not belong to him were delivered to his home. Each time Hillgen informed the sender that they had misaddressed the packages and then returned them to the sender.
Gerst was assigned to deliver another package to 183 Wild Rose Drive on March 17, 2005. This package was addressed to Pamela Williams. Williams did not reside at 183 Wild Rose Drive. Gerst was instructed by his supervisor to deliver the package to the town of Orange police department as part of an ongoing investigation. Robert Cole, a town of Orange police investigator, called the telephone number listed on the package and discovered that it belonged to the [petitioner].
Five days later, Gerst was assigned another parcel to be delivered to 189 Wild Rose Drive. When Gerst delivered the package to the resident of 189 Wild Rose Drive, she informed him that the package did not belong to her but, rather, belonged to 183 Wild Rose Drive, the house next door. This package was addressed to the [petitioner].
In December, 2004, Jonathan Boies and his wife, Jodie Boies, were joint users of an American Express account. On December 23 or 24, 2004, Jodie Boies used her American Express credit card at Kate's Paperie. On January 27, 2005, Randy Vines, a fraud investigator from Nieman Marcus, the parent company of Bergdorf Goodman, telephoned Jonathan Boies regarding possible fraudulent purchases, in the amount of $2252, charged to his American Express credit card and shipped to 133 Wild Rose Drive in Orange. The Boies' American Express account was used again at the end of January, 2005, to purchase approximately $43, 000 worth of merchandise from Bergdorf Goodman. The customer who ordered these purchases requested that the items be mailed to Debra Boies at 133 Wild Rose Drive in Orange, and used the [petitioner's] telephone number. Jonathan Boies did not have any knowledge of these purchases, did not know of any Debra Boies and did not authorize anyone to use his credit card.
The United States Postal Service and town of Orange police officers conducted a videotaped controlled delivery to the [petitioner], in which Patrick Bernardo, a United States postal inspector, purported to deliver merchandise from Bergdorf Goodman to 183 Wild Rose Drive, the address of the [petitioner]. Bernardo asked the [petitioner]: “[A]re you Debra Boies?” The [petitioner] responded that she was and proceeded to sign “Debra Boies” on four different sections of the United States postal parcel slips. The [petitioner] was then taken into custody.

Bozelko, 119 Conn.App. at 487-89, 987 A.2d at 1105-07.

         II. Procedural Background

         Following a jury trial in October 2007, the petitioner was convicted of ten felonies and four misdemeanors based on her involvement in four separate incidents involving larceny or attempted larceny, identity theft, illegal use of a credit card, and forgery.[1] She was sentenced to a total effective term of imprisonment of ten years, execution suspended after she served five years of imprisonment, followed by four years of probation. See Bozelko v. Warden, State Prison, No. CV10-4003804-S, 2013 WL 4734867, at *1 (Conn. Super. Ct. Aug. 13, 2013).

         On direct appeal, the petitioner argued that the trial court improperly denied her motion for mistrial, denied her motion to proceed pro se, and improperly instructed the jury regarding a unanimous verdict. She also challenged the convictions for identity theft and illegal use of a credit card as violating her right to be free from double jeopardy. The Connecticut Appellate Court affirmed the conviction and the Connecticut Supreme Court denied certification to appeal. State v. Bozelko, 119 Conn.App. 483, 486-87, 987 A.2d 1102, 1105, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010). None of these issues are included in the federal petition.

         On May 20, 2010, the petitioner filed a petition for writ of habeas corpus in state court on the ground that trial counsel was ineffective. Resp't's Mem. App. E at A-13 - A-20. On October 5, 2010, the petitioner filed a second state habeas action alleging ineffective assistance of sentencing counsel. Id. at A-21 - A-25. The cases were consolidated and counsel was appointed to represent the petitioner. In the amended petition for writ of habeas corpus, the petitioner alleged that trial counsel was ineffective in seven ways: (1) she failed to adequately cross-examine the state's witnesses; (2) she did not formulate a theory of defense or marshal defense evidence; (3) she did not conduct an adequate pretrial investigation; (4) her request to charge the jury was not tailored to the facts of the case; (5) her closing argument was inadequate regarding the existence of reasonable doubt; (6) she did not move to suppress statements made by the petitioner; and (7) she did not move to suppress any identification of the petitioner as being unnecessarily suggestive and conducive to misidentification. Id. at A-31. The petitioner also alleged that sentencing counsel was ineffective in four ways: (1) she failed to marshal arguments in support of mitigation of punishment; (2) failed to provide a sentencing report in support of mitigation; (3) admitted that she was not prepared for sentencing; and (4) stated that she “‘never imagin[ed] that [the petitioner] would be sentenced today[.]'” Id. at A-33.

         The state court held a hearing at which the petitioner, trial counsel, sentencing counsel, and a criminal defense mitigation specialist testified. After considering the testimony and post-trial briefs, the state court denied the petition. The court determined “that the petitioner has failed to prove, by a preponderance of the evidence, any specification of ineffective assistance by [trial counsel] under either prong of the Strickland standard by which such claims are evaluated” and “[t]he allegations against [trial counsel] are trivial and inconsequential in light of the crushing evidence of her guilt.” Bozelko, 2013 WL 4734867, at *5. The court also concluded that sentencing counsel not only met professional norms, “but in the court's opinion, she far exceeded them. This count of ineffective assistance remains unproven under the Strickland criteria.” Id. at *7.

         Although the habeas court denied certification to appeal, Resp't's Mem. App. E at A-143, the petitioner appealed the denial to the Connecticut Appellate Court. She argued that the trial court erred in determining that trial counsel was not ineffective with regard to five claims: (1) failure to file a motion to suppress the petitioner's allegedly incriminating statements to the police; (2) failure to file a motion to suppress the Federal Express driver's in-court identification; (3) failure to conduct an adequate pretrial investigation; (4) failure to adequately cross-examine the state's witnesses; and (5) failure to give an adequate summation during closing argument. The petitioner also argued that the trial court erred in determining that sentencing counsel was not ineffective during sentencing. Resp't's Mem. App. E at 9-28.

         On March 24, 2015, the Connecticut Appellate Court dismissed the appeal without comment in a per curiam decision. Bozelko v. Commissioner of Correction, 156 Conn.App. 901, 110 A.3d 548 (2015). The petitioner sought certification from the Connecticut Supreme Court challenging the application of the Strickland standard. Resp't's Mem. App. H. Certification was denied on May 20, 2015. Bozelko v. Commissioner of Correction, 317 Conn. 904, 114 A.3d 1219 (2015). The petitioner commenced this action on September 28, 2015.

         III. Standard of Review

         The federal court will entertain a petition for writ of habeas corpus challenging a state court conviction only if the petitioner claims that her custody violates the Constitution or federal laws. 28 U.S.C. § 2254(a).

         The federal court cannot grant a petition for a writ of habeas corpus filed by a person in state custody with regard to any claim that was rejected on the merits by the state court ...


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