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Boisvert v. United States

United States District Court, D. Connecticut

January 24, 2018

Eugene Boisvert, Plaintif,
v.
United States of America, Defendant.

          MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE.

         I. Background

         Before the Court is a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct sentence filed by Eugene Boisvert ("Petitioner"). [Dkt. No. 1.] Petitioner contends that his trial counsel was ineffective in failing to (1) conduct a proper investigation; (2) retain and offer testimony at trial of a forensic expert; (3) adequately cross examine Government witnesses with regard to his online chats; (4) object to the admission of certain evidence; and (5) move to suppress petitioner's post-Miranda statements. On January 8, 2018, the Court conducted an evidentiary hearing at which Petitioner was represented by appointed counsel. At the onset of the hearing, Petitioner and his counsel requested a recess for the purpose of discussing Petitioner's contentions, after which Petitioner withdrew all claims except the claim that his counsel was ineffective for failing to file a motion to suppress. In so doing, Petitioner admitted that his trial counsel did retain a forensic expert whose opinion corroborated the government's evidence establishing that Petitioner was online at the time of the chats which formed the basis of the charge. As a result, Petitioner's counsel was effective in choosing not to call the expert as a witness at trial as his testimony would have been incriminating. Petitioner also admitted that his trial counsel properly stipulated to the admission of the records of regularly conducted activity, as they were admissible under the Federal Rules of Evidence. Finally, Petitioner admitted that his trial counsel adequately cross-examined the government's witnesses. Thus the sole remaining issue before the Court is whether Petitioner's trial counsel was ineffective in failing to file a motion to suppress Petitioner's post-Miranda statements. For the reasons stated below, the Court finds that Petitioner's trial counsel was not ineffective in so failing and DENIES the writ.

         II. Facts

         A Federal Bureau of Intelligence (FBI) agent impersonated a teenaged girl and engaged in numerous prurient conversations with a male individual identifying himself as an adult. The conversations took place in a chat room and were electronically recorded. The pair agreed to meet to engage in intimate sexual conduct at a beach in Milford, Connecticut, where the girl purportedly lived. The pair also agreed that the adult male would wear a certain article of clothing when they met so the child could identify him. On the day of the scheduled meeting, FBI agents and other law enforcement officers followed the Plaintiff from his home in Massachusetts to a street in Milford, Connecticut on the route to the beach. Around the corner from the beach, the agents blocked Plaintiff's vehicle from fleeing the scene, exited their vehicles with drawn firearms, and apprehended Petitioner. At the scene, law enforcement discovered that Petitioner was in possession of the article of clothing which the individual engaged in the chat stated he would be wearing. The Petitioner was arrested and taken to the FBI office, where he was advised of his Miranda rights both orally and in writing. Petitioner was directed to initial each individual advisement in the written Miranda advisement and to sign the document, which Petitioner did. [Hearing Exhibit 1.] Two FBI agents then interrogated Petitioner, during which they showed him transcripts of chats. They asked him if the transcripts were of his chats and, if so, to initial each. He initialed them indicating that he recognized them as transcripts of his chat conversations. Plaintiff was indicted, prosecuted for, and convicted of Use of Interstate Facilities to Persuade a Minor to Engage in Sexual Activity in violation of 18 U.S.C. S 2422(b) and Interstate Travel with Intent to Engage in Illicit Sexual Conduct in violation of 18 U.S.C. §2423(b).

         Petitioner established his indigence and was appointed counsel to represent him. Over the course of his prosecution, he was represented by three attorneys, each of whom advised him to accept a plea offer. The first two attorneys withdrew because the attorney-client relationship broke down when counsel advised Petitioner that, in light of the government's evidence, it was in Petitioner's best interest to accept a plea offer. Prior to trial, the government delayed seeking an indictment so that Petitioner would have an opportunity to plead to a charge which did not carry a mandatory minimum 10-year sentence. Petitioner chose not to plead guilty because he insisted he did not intend to engage in illicit sexual conduct. Petitioner preferred to go to trial and explain that he was only chatting with the child to scare her so that she would no longer visit chat rooms, and that he arranged to meet her solely for the purpose of learning where she lived so that he could tell her family what she was doing. In none of the chats offered at trial did Petitioner ask the child for her address, home telephone number, or her parents' identities. Throughout the prosecution Plaintiff admitted to his attorney, as he admitted to the FBI, that he did engage in the chats with the individual who identified herself as a female child. At trial, Petitioner admitted that he engaged in the chats and arranged to meet the child and testified, to the obvious incredulity of the jury, that he did so for her protection.

         In preparation for trial, Petitioner's third attorney engaged a forensic expert. The expert's opinion corroborated the government's theory of the case and accordingly Petitioner's attorney chose not to call the expert as a witness at trial. At trial, the government admitted into evidence numerous chats which were initialed by Petitioner as well as the testimony of law enforcement officers involved in the investigation, including the agent who impersonated the female child. Petitioner was ultimately convicted.

         Following Petitioner's conviction, he filed an appeal challenging his conviction and sentence, which included an enhancement for his patently dishonest testimony. Both were affirmed. Thereafter, Petitioner filed a writ of habeas corpus contending that documents he filed with his writ conclusively proved that he was not online at the time his crimes of conviction were committed. A review of the documents submitted did not establish what Petitioner claimed, and the Court scheduled a hearing to confirm that Petitioner's papers meant what they said and to ensure that the Court did not misconstrue his position. Upon Petitioner's confirmation that the Court understood his argument, the petition was denied and Petitioner appealed. On appeal, the matter was remanded because the Court failed to appoint an attorney to represent the Petitioner at the hearing. This Court appointed counsel to represent Petitioner and the subject evidentiary hearing was conducted on January 8, 2018.

         As intimated above, Petitioner abandoned his claim that the exhibits filed in support of his original writ proved that he was not online at the time of the subject chats, establishing his innocence. Instead he asserted five new claims, and then with the assistance of his fourth attorney withdrew all but one of these new claims. The sole remaining claim is that counsel was ineffective in failing to move to suppress his initials and signature on the Miranda advisement and the transcribed chats. For purposes of this decision and in the interest of finality, the Court addresses this claim here without addressing the issue of procedural default.

         Specifically, Petitioner claims that the totality of the circumstances surrounding his apprehension and interrogation were coercive and that his signature and initials were not made voluntarily. For the reasons stated below, the Court finds Petitioner's counsel was not ineffective in failing to file a motion to suppress Mr. Boisvert's custodial statements.

         III. Legal Standard

         To establish ineffective assistance of counsel, a habeas petitioner must “(1) demonstrate that his counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (quoting United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005)) (applying the ineffective assistance of counsel inquiry set forth in Strickland v. Washington, 466 U.S. 668 (1984)). To satisfy the “performance” prong, there must be a demonstration that counsel made errors “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). Counsel's omissions fall outside this range of reasonableness if they “cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness.” Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003). To satisfy the “prejudice” prong, petitioner must demonstrate that “there is 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; see also Mazzuca, 570 F.3d at 502. In assessing prejudice stemming from the failure to investigate and introduce (or exclude) certain evidence, a court must consider “all the relevant evidence that the jury would have had before it” had the evidence been introduced, including unfavorable evidence. Wong v. Belmontes, 130 S.Ct. 383, 386 (2009) (per curiam).

         A petitioner challenging his conviction on the basis of ineffective assistance of counsel bears a heavy burden, as “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance.” Strickland, 466 U.S. at 689 (1984). A defendant's post hoc accusations alone are not sufficient to overcome this strong presumption, because a contrary holding would lead to constant litigation by dissatisfied criminal defendants and harm the effectiveness, and potentially even the availability, of defense counsel. Id. In adjudicating a claim of ineffective assistance of counsel, the “ultimate focus of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696.

         Because the Petitioner here alleges his trial counsel was ineffective for declining to move to suppress his signed chat transcripts, the Court must consider the law governing suppression to determine whether trial counsel's decision amounted to ineffective assistance. The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” An accused may not be compelled against his will to incriminate himself. See Miranda v. Arizona, 384 U.S. 436, 460 (1966). “[T]he very fact of custodial interrogation exacts a heavy toll on individual liberty.” Id. at 45. This is because interrogations are inherently intimidating, stress-provoking and coercive. Law enforcement officials may not question a suspect unless the suspect voluntarily waives her constitutional right to remain silent. Malloy v. Hogan, 378 U.S. 1, 8 (1964). Only a confession which is ...


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