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Poupart v. United States

United States District Court, D. Connecticut

February 22, 2018



          Hon. Vanessa L. Bryant, United States District Judge

         Petitioner 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.


         On July 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.

         On 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.

         On June 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.

         On 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.

         Attorney 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.

         On 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.

         On 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. 104.

         On 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, 121.

         On 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. Id., 162.

         On 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.

         On 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.

         Attorney 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.

         On 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.

         On June 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.

         Thereafter, 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, 2015).]

         Legal Standard

         Section 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).

         Claims 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.


         Mr. 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.

         I. Failure to Object to Discovery

         Mr. 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).

         Plaintiff raised the same argument in his motion to withdraw his guilty plea. Poupart, ...

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