United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING PETITION FOR RELIEF
UNDER 28 U.S.C. § 2255 [DKT. 1]
Vanessa L. Bryant, United States District Judge
Richard Poupart (“Poupart” or
“Petitioner”) brings this pro se
petition for habeas relief under 28 U.S.C. § 2255,
asserting six ineffective assistance of counsel claims
against his counsel who represented him through preparation
for trial, his guilty plea shortly before trial, and
sentencing. [Dkt. 1.] For the foregoing reasons, this Motion
to Vacate, Set Aside, or Correct Sentence is DENIED.
22, 2010, the Government filed a sealed complaint and
affidavit in support of an application for an arrest warrant
for Mr. Poupart, detailing an investigation into violations
of 18 U.S.C. § 2252 concerning material involving the
sexual exploitation of minors. United States v.
Poupart, 3:11-cr-00116 (“Poupart”),
Dkt. 4. On August 6, 2010, Mr. Poupart appeared before
Magistrate Judge Margolis, and Judge Margolis ordered Mr.
Poupart detained pending a formal detention hearing on August
23. Id., Dkt. 7. The day of his initial appearance,
the Court appointed the Federal Public Defender's Office
to represent Mr. Poupart. Id., Dkt. 13. Assistant
Federal Defender Sarah Merriam represented Mr. Poupart at his
August 23, 2010 detention hearing, where the Court ordered
Mr. Poupart detained and denied his motion for bond.
Id., Dkts. 20, 22. Assistant Federal Defender
Merriam moved to withdraw her representation on October 1,
2010, citing “substantial and irreconcilable
differences” and stating Mr. Poupart “has stated
on several occasions that he does not trust [Attorney
Merriam] to provide sound legal advice, and that he has no
confidence in the Office of the Federal Defender to act in
his best interest.” Id., Dkt. 31. Magistrate
Judge Margolis granted the motion to withdraw and ordered the
appointment of substitute counsel. Id., Dkt. 32.
Attorney Jodi Gagne appeared as CJA counsel on October 7,
2010. Id. at Dkt. 33.
October 25, 2010, Mr. Poupart moved for a new attorney,
stating he wished to be represented by Attorney Norman Pattis
because he believed Attorney Pattis was more experienced with
computer-related cases. Id. at Dkt. 34. In the
motion filed on Mr. Poupart's behalf, Attorney Gagne
stated she explained to Mr. Poupart that she has practiced
“criminal law for a number of years and is fully
capable to provide him with highly competent legal
services.” Id. Attorney Gagne also explained
to Mr. Poupart that “the Court is not obligated to
provide him with counsel of his choice.” Id.
Attorney Gagne also noted that while Attorney Pattis
expressed willingness to represent Mr. Poupart, he was no
longer a member of the CJA Panel. Id. Magistrate
Judge Margolis denied the motion on October 28, 2010.
Id. at Dkt. 38. Mr. Poupart did not retain Mr.
Pattis or choose to represent himself and thus continued to
be represented by Attorney Gagne.
30, 2011, a grand jury returned a two-count indictment
charging Mr. Poupart with (1) knowingly transporting and
shipping in interstate commerce, by any means including by
computer, a visual depiction, the production of which
involved the use of a minor engaging in explicit conduct and
which visual depiction was of such conduct, in violation of
18 U.S.C. § 2252(A)(1); and (2) knowingly possessing one
or more matters, which contained any visual depiction that
had been mailed, shipped and transported in interstate
commerce, which was produced using materials that were
shipped, mailed, or transported in interstate commerce, by
any means including by computer, the production of which
involved the use of a minor engaging in sexually explicit
conduct, and which visual depiction was of such conduct, in
violation of 18 U.S.C. § 2252(a)(4)(B). Id.,
Dkt. 56. At the arraignment on July 19, 2011, Mr. Poupart
entered a plea of not guilty. Id., Dkt. 60.
August 22, 2011, Attorney Gagne moved to appoint Attorney
James Filan as additional CJA counsel on behalf of Mr.
Poupart, to second-chair the trial. Id., Dkt. 68.
The motion described the case as “exceedingly
complex” and “high stakes” given the
“vast number of pictures found on Mr. Poupart's
computer(s) that could be considered child
pornography.” Id. After a status conference,
the Court denied the motion without prejudice on September 2,
2011, stating Attorney Gagne could renew her motion if, upon
further development of the case, the criteria under CJA
Guideline § 230.53.201(a) for appointment of additional
counsel in non-capital cases was met. Id., Dkt. 72.
Gagne filed several motions seeking to exclude evidence. The
first was a motion in limine to exclude a deposition
transcript uncovered at Mr. Poupart's home, in which the
victim in a prior sexual assault case against Mr. Poupart
described the facts surrounding that sexual assault.
Id., Dkt. 74. Attorney Gagne also sought to exclude
evidence of the fact that Mr. Poupart was a photographer for
an adult website which his sister operated. Id.
Attorney Gagne also moved to exclude any sexual
“toys” uncovered in Mr. Poupart's home.
Id. Finally, Attorney Gagne sought to exclude
evidence of prior bad acts or uncharged crimes committed by
Mr. Poupart, including his prior sexual assault convictions.
Id., Dkt. 75. On October 31, 2011, after a two and a
half hour hearing, District Court Judge Arterton granted in
part and denied in part the motion to exclude evidence of Mr.
Poupart's prior misconduct, finding the Government could
offer evidence of Mr. Poupart's 2009 Connecticut state
conviction involving sexual assault in the fourth degree.
Id., Dkts. 92, 132. Judge Arterton denied the other
motions in limine. Id., Dkt. 92.
November 3, 2011, Attorney Gagne moved to incur expenses to
retain a computer forensic investigator to help prepare the
case for trial. Id., Dkt. 93. The expert would help
determine “how [the images which are the subject of the
indictment] got onto the computer, who put those images on
the computer, when those images were put on the computer, the
process by which the government obtained those images off the
computer, the chain of custody of the computer and its
images, and, finally, testimony at trial as to all of the
above.” Id. The motion also explained that
this would be the second computer expert retained in this
case, as Attorney Gagne “previously hired a computer
expert, pre-indictment, to consult on the case.”
Id. Attorney Gagne explained that the prior expert
was “unable, for a number of reasons, to continue on
this case now that trial is imminent.” Id.
Judge Arterton granted the motion and approved expenses up to
$7, 500. Id., 94.
December 22, 2011, Attorney Gagne again moved to appoint
Attorney James Filan to serve as co-counsel at trial.
Id., Dkt. 103. The following day, the Court granted
the motion in light of the increased complexity and demands
of the case as the trial date approached. Id., Dkt.
January 18, 2012, Attorneys Gagne and Filan moved to incur
expenses to retain additional experts for trial, including a
dermatologist to determine whether identifying features in a
photo on Mr. Poupart's computer could belong to his minor
niece, a private investigator to obtain background
information on witnesses the Government identified who would
testify against Mr. Poupart, and to continue using the
services of the previously retained computer forensic expert.
Id., Dkts. 112, 113, 115. All three motions were
granted on February 9, 2012. Id., Dkts. 119, 120,
March 26, 2012, Attorneys Gagne and Filan moved in
limine to exclude evidence of Mr. Poupart's criminal
record for impeachment purposes, as well as for the
non-impeachment purposes for which that evidence was excluded
in the ruling on their prior motion in limine.
Id., Dkt. 132. However, on May 25, 2012, before
Judge Arterton had an opportunity to rule on that motion, Mr.
Poupart entered into a plea agreement with the Government.
Id., Dkt. 142. On May 25, 2012, at a change of plea
hearing, Mr. Poupart pled guilty to count two of the
indictment. Id., Dkt. 145. On August 5, 2012,
Attorney Filan moved to withdraw his appearance, as Mr.
Poupart's guilty plea rendered a second attorney
unnecessary. Id., Dkt. 161. The motion was granted.
August 7, 2012, Attorney Gagne moved to withdraw her
appearance as well, stating she and Mr. Poupart “do not
see eye to eye on the direction in which this case should be
heading.” Id., Dkt. 163. Without violating the
attorney-client privilege, Attorney Gagne stated that she
“refused to take an action requested by Mr. Poupart,
” and “Mr. Poupart expressed his desire for a
different attorney.” Id. The Court held a
hearing on the motion to withdraw on August 21, 2012, and
took the motion under advisement. Id., Dkt. 166. The
Court also ordered Mr. Poupart to file a motion to withdraw
his guilty plea, if so desired, by August 31, 2012.
Id. On August 27, 2012, Attorney Paul Thomas
appeared as stand-by counsel to aid Mr. Poupart in filing his
motion to withdraw his guilty plea. Id. at Dkt. 167.
September 5, 2012, Mr. Poupart filed a motion to withdraw his
guilty plea, aided by Attorney Thomas. Id., Dkt.
172. In his motion, Mr. Poupart asserted Attorneys Gagne and
Filan intimidated him into accepting a plea agreement and
ineffectively assisted him. Id. The Court denied the
motion to withdraw guilty plea on October 18, 2012.
Id., Dkt. 178. At a November 6, 2012 hearing on
Attorney Gagne's motion to withdraw counsel, the Court
denied Attorney Gagne's motion and granted Attorney
Thomas's oral motion to withdraw. Id., 181. On
November 14, 2012, upon reconsideration, the Court granted
Attorney Gagne's motion to withdraw and appointed
Attorney C. Thomas Furniss as substitute CJA counsel.
Id., Dkt. 182.
Furniss represented Mr. Poupart for his sentencing, which
included filing a sentencing memorandum and representing Mr.
Poupart at the sentencing proceeding. Id., Dkts.
187, 193. On February 7, 2013, Judge Arterton sentenced Mr.
Poupart to 240 months imprisonment and a life term of
supervised release. Id., Dkts. 193, 200.
February 19, 2013, Mr. Poupart entered a notice of appeal of
the final judgment. Id., Dkt. 197. Mr. Poupart wrote
a letter to Judge Arterton requesting substitute counsel to
represent him on his appeal, as Attorney Furniss “has
made it abundantly clear that he does not wish to handle my
appeal.” Id., Dkt. 209. Mr. Poupart asserted
Attorney Furniss displayed “incompetence handling the
sentencing based on his refusal to handle my case the way I
asked and lack of discussion prior to filing the sentencing
memorandum, ” and as a result Mr. Poupart had “no
desire to have him handle my appeal.” Id. The
Court denied the motion in light of the Second Circuit's
appointment of Attorney Gerzog to represent him on his
appeal. Id., Dkt. 210.
3, 2014, the Second Circuit affirmed the Judgment of the
District Court, finding (i) the District Court did not
violate Mr. Poupart's Sixth Amendment rights by allowing
him to file a pro se motion to withdraw his guilty
plea without first conducting a proceeding pursuant to
Faretta v. California, 422 U.S. 806 (1975); and (ii)
the sentence imposed was procedurally and substantively
reasonable, as the District Court explicitly considered the
18 U.S.C. 3553(a) factors in determining his sentence.
Id., Dkt. 215.
Mr. Poupart timely filed this habeas petition before the
Court. 18 U.S.C. § 2255(f) (setting a one-year
limitations period from the date the judgment of conviction
becomes final); [Dkt. 1 (Motion to Vacate filed April 10,
2255 enables a prisoner in federal custody to petition a
federal court to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). Relief under Section 2255 is
generally available to rectify three irregularities, namely
“only for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or
fact that constitutes a fundamental defect which inherently
results in complete miscarriage of justice.”
Graziano v. United States, 83 F.3d 587, 590 (2d Cir.
1996) (internal quotation marks and citation omitted).
Section 2255 provides that a district court should grant a
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b).
for ineffective assistance of counsel are analyzed under the
two part test established in Strickland v.
Washington, 466 U.S. 668 (1984). To prevail, a movant
must both allege facts demonstrating that
“counsel's representation fell below an objective
standard of reasonableness” and that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 687-88, 694. As
to the first showing, a movant must demonstrate that
counsel's performance “amounted to incompetence
under ‘prevailing professional norms'” rather
than demonstrating that the performance “deviated from
best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011) (quoting
Strickland, 466 U.S. at 690). As to the second
showing, a movant must demonstrate “a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Poupart brings six ineffective assistance of counsel claims
arising out of his counsel's actions during trial
preparation, his change of plea, and sentencing, some of
which were already addressed in Judge Arterton's Order
Denying Motion to Withdraw Guilty Plea. The Court addresses
each claim in turn.
Failure to Object to Discovery
Poupart first asserts his counsel was ineffective for failing
to challenge the admissibility of videotaped recordings of
forensic interviews of two minor victims because there was a
break in the chain of custody of those recordings. Because
the recordings provided the basis for the search warrant of
Mr. Poupart's residence, he also asserts his counsel
should have challenged all evidence seized pursuant to that
warrant. The Government responds that the recordings were not
offered as evidence at trial. In addition, the Government
asserts Shelton Police Detective Trabka was present at the
recorded interviews, and his affidavit in support of the
search warrant would have provided probable cause for the
warrant even without the recordings themselves. Taking into
consideration the totality of the circumstances, including
that Detective Trabka was present at the time the recordings
were made and described the interviews in his affidavit, the
decision not to challenge this evidence falls within the
range of strategic decisions competent counsel would make and
thus counsel's decision not to do so did not fall below
the performance of competent counsel. Henry v.
Poole, 409 F.3d 48, 52 (2d Cir. 2005).
raised the same argument in his motion to withdraw his guilty
plea. Poupart, ...