Agbosasa v. United States

Opinion

USCA1 Opinion

        November 18, 1993       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1446 

                                 SAMSON O. AGBOSASA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Samson O. Agbosasa on brief pro se.
            __________________
            Edwin J. Gale,  United States  Attorney, Stephanie  S. Browne  and
            _____________                            ____________________
        Charles A. Tamuleviz,  Assistant United States Attorneys, on brief for
        ____________________
        appellee.

____________________

____________________

Per Curiam.  Petitioner  Samson O. Agbosasa appeals
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            pro se from  the dismissal  of his motion  under 28 U.S.C.   
            ___ __

            2255.  Finding no error, we affirm.

                                          I.
                                          _

                      In  1990, upon  a plea  of  guilty, petitioner  was

            convicted of falsely representing that he was a United States

            citizen, 18  U.S.C.    911, and was  sentenced to  six months

            imprisonment,  that  sentence  to  run  concurrently  with  a

            sentence  previously imposed  in  an  unrelated  case.    The

            sentencing  court  also  mandated  one  year   of  supervised

            release, including surrender of defendant to the  Immigration

            and  Naturalization   Service  for   deportation  proceedings

            pursuant to 8 U.S.C.   1101, et seq.  Petitioner is currently
                                         __ ____

            awaiting deportation.

                      The underlying facts and chronology, as culled from

            the files  and records  in the  case, are  not disputed.   In

            January  1990, petitioner  was involved  in  a motor  vehicle

            accident.  He  retained a lawyer to assist  in processing his

            claim.  In June 1990, petitioner was granted pretrial release

            in  a pending criminal  proceeding.  Petitioner's  travel was

            restricted and he was required to make periodic personal  and

            telephonic reports.  On August 27, 1990, an investigator from

            the petitioner's  insurance company  called petitioner  about

            his  accident claim.   The investigator obtained petitioner's

            consent to  (1)  tape the  conversation  and (2)  answer  the

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questions  posed in  the absence  of  his attorney.   At  the

            outset of the  conversation, the  investigator inquired  into

            petitioner's  citizenship status.   Petitioner stated that he

            was  born in  Lagos, Nigeria,  came to  the United  States in

            1979, and became a United States citizen in 1986.

                      Approximately   six   weeks   later   a   two-count

            indictment was returned against  petitioner charging him with

            (1) falsely representing United States citizenship, 18 U.S.C.

               911, and  (2) using  a  false social  security number,  42

            U.S.C.    408(g)(2).  On December 7, 1990, petitioner pleaded

            guilty to count one and count  two was dropped.  At the  plea

            hearing, relying upon petitioner's August 27, 1990 statements

            that he  was a citizen  of the United States,  the government

            made the proffer that at trial it would prove that petitioner

            remained a  citizen of  Nigeria.   Petitioner then  responded

            affirmatively  to the presiding  judge's express query:   "Do

            you now  want to plead guilty to . . . the first count of the

            indictment in this case,  which charges you with  falsely and

            wilfully  representing yourself to be a citizen of the United

            States . . . on or about August 27, 1990?"

                      In July 1992, petitioner filed this   2255 petition

            raising two grounds for relief:   (1) that his Miranda rights
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            were  violated  during  the  telephone   interview  with  the

            insurance  investigator, and (2) that he was denied effective

            assistance of counsel because his attorney refused to move to

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suppress  the  statements  made  during  the  August  27,1990

            conversation. In  an accompanying  memorandum and  affidavit,

            petitioner  contended that he  learned, several  months after

            conviction,  that the investigator's failure to advise him of

            his   Miranda   rights  rendered   petitioner's   citizenship
                  _______

            statements, made  while he was  on bail awaiting trial  in an

            unrelated criminal  case, inadmissible.   Petitioner asserted

            that the investigator  was conspiring with the  government to

            entrap him and thus had reason to know that any  admission of

            alienage by the defendant would be highly incriminating.

                      The government's response to the   2255 hearing was

            two-fold.   First, it argued that because  the petitioner was

            not in  custody or otherwise  deprived of his  freedom during

            the telephone  conversation with the  insurance investigator,

            his Fifth  Amendment rights  were not  violated.  Miranda  v.
                                                              _______

            Arizona,  384 U.S.  436, 478  (1966).   Second,  petitioner's
            _______

            charges that the  investigator was acting as an  agent of the

            government were, respondent maintained, false, conclusory and

            without any factual support.  Relying on Illinois v. Perkins,
                                                     ________    _______

            496 U.S. 292, 300 (1990),  the government concluded that even

            if  the investigator  had been  functioning  as a  government

            agent  during the August  27, 1990 telephone  conversation, a

            fact which was denied, Miranda warnings are not required when
                                   _______

            an incarcerated  suspect gives  a voluntary  statement to  an

            undercover   law   enforcement   official.      Consequently,

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respondent claimed,  as there  were no  allegations that  the

            plea proceeding was  deficient under Fed. R. Civ.  P. 11, the

            petitioner's  bald  and unelaborated  assertions  provided no

            basis  for     2255  relief   and  were  subject  to  summary

            dismissal.

                      Petitioner's   opposition   to   the   government's

            response maintained that the Miranda "in custody" requirement
                                         _______

            had been satisfied because at  the time of the interview, his

            liberty was restricted by the authorities  under the terms of

            the  June 1990 pretrial release order in a pending, unrelated

            case.     Petitioner  also  contended   that  the   insurance

            investigator   must  have  known  of  that  pending  criminal

            proceeding and  petitioner's "technical custody"  because (1)

            within a few hours of the telephone interview, its transcript

            was in the  hands of an Assistant United  States Attorney and

            (2)  the  transcript  showed that  the  interview  ranged far

            afield of routine  accident claim inquiries in  eliciting the

            incriminating information.  Illinois v. Perkins was literally
                                        ________    _______

            inapplicable, petitioner claimed, because both parties to the

            telephone interview  fully understood each  other's identity.

            Finally,  petitioner attaches importance to the fact that the

            investigator  called petitioner  personally despite  the fact

            that petitioner's attorney had filed the claim.

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The  district court  summarily  denied  the    2255

            motion  "for  the  reasons  set  forth  in  the  government's

            response," and this appeal ensued.

II.
                                         __

                      We  have  little  difficulty  concluding  that  the

            dismissal was correct.  In Illinois v.  Perkins, a prisoner's
                                       ________     _______

            cell-mate  was an  undercover government  agent who  elicited

            incriminating statements about  an offense  unrelated to  the

            inmate's incarceration.  In deciding that neither Miranda nor
                                                              _______

            the Fifth  Amendment applies to  statements voluntarily given

            to an undercover  agent posing as  a fellow inmate,  Perkins,
                                                                 _______

            496 U.S. at 300, the  Court observed that "detention, whether

            or  not  for  the  crime  in question,  does  not  warrant  a

            presumption that the use of an undercover agent to speak with

            an incarcerated suspect  makes any  confession thus  obtained

            involuntary."  Id. at 299.  When a suspect is unaware that he
                           ___                            _______

            is  speaking with  a  government  official,  the  element  of

            coercion  is missing.   Id.   Thus,  the Court  held, Miranda
                                    ___                           _______

            "warnings are  not required  to safeguard the  constitutional

            rights of inmates who make voluntary statements to undercover

            agents."  Id. at 300.
                      ___

                      Even  if  we  were to  assume,  arguendo,  that the
                                                      ________

            pretrial  release order in the unrelated criminal case placed

            restrictions  on petitioner's  liberty  so as  to  constitute

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custody  for Miranda purposes  at the time  of the interview,
                         _______

            and  also  assume  that the  investigator  was  an undercover

            agent, given the fact that  petitioner does not claim that he

            knew, at the time of the interview, that the investigator was
                  ____________________________

            a government  agent, his  claim to  Miranda protections  must
                                                _______

            fail.    No such  warnings  needed  to  be given  before  the

            investigator  here  asked  the questions  that  elicited  the

            incriminating response.    Petitioner's  further  claim  that

            Miranda  was  implicated   because  he  was  represented   by
            _______

            counsel  -- either  in the  insurance  matter or  the pending

            criminal  case  -- fares  no  better,  since the  element  of

            coercion was not satisfied.

                      Similarly,  regarding  the   claim  that  counsel's

            conduct  was deficient because he failed  to move to suppress

            petitioner's voluntary statements made  on August 27,1990, no

            prejudice resulted.   In short,  it cannot be said  that "but

            for  counsel's errors,  the  result  below  would  have  been

            different."   See Murchu  v. United States,  926 F.2d  50, 58
                          ___ ______     _____________

            (1st Cir.), cert. denied, 112 S. Ct. 99 (1991).
                        _____ ______

                      Accordingly, even under the conspiratorial scenario

            petitioner posits,  the petition  was,  as a  matter of  law,

            properly  subject to summary  dismissal.  We  have considered

            petitioner's remaining arguments and find them without merit.

                      Affirmed.
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