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Boden v. United States

United States District Court, E.D. Tennessee

March 23, 2017

RAYMOND W. BODEN, SR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Raymond W. Boden, Sr. has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. 51]. The government filed a response in opposition [Doc. 58]. Additionally, Petitioner filed a reply to the response [Doc. 60]. Also before the Court are Petitioner's motion to accept reply and to schedule an evidentiary hearing [Doc. 59], and two motions for appointment of counsel [Docs. 63, 65]. Upon review of the motion and filings in the record, the Court finds that Petitioner is not entitled to relief under 28 U.S.C. § 2255, and it will accordingly deny the § 2255 motion for the reasons set forth herein. In addition, the Court will grant in part and deny in part Petitioner's motion to accept reply and to schedule an evidentiary hearing, and will deny the motions to appoint counsel.

         I. Factual and Procedural History

         On June 20, 2012, Petitioner pleaded guilty to violating 18 U.S.C. § 2422(b) pursuant to a written plea agreement with the United States [Doc. 37]. The plea agreement states that the government “agrees not to prosecute any of the defendant's immediate family members for any alleged involvement they might have had in tampering with the defendant's Yahoo! email account subsequent to his arrest” [Id. ¶ 2]. Further, the plea agreement states that Petitioner agrees and stipulates to certain facts, as the government has referenced in its response to the § 2255 motion [Doc. 58].

         During the change of plea hearing, the Court recited the legal rights that Petitioner was giving up by pleading guilty, and Petitioner swore that he understood [Doc. 56 pp. 6-7]. Further, Petitioner stated, “No, sir, ” when the Court asked whether “any person, including an officer or agent of the government, [had] put any pressure on [Petitioner], mental or physical, to force [him] to plead guilty” [Id. at 7]. The Court then specifically referenced the government's promise not to prosecute any of Petitioner's immediate family for any alleged involvement that they may have had in tampering with the Yahoo! Account [Id. at 8]. The Court advised Petitioner of the elements and maximum penalty of the offense [Id. at 12-19]. Petitioner also affirmed the factual basis set forth in the plea agreement and stated that he was pleading guilty because he was, in fact, guilty [Id.]. The Court concluded that Petitioner's plea was knowing and voluntary, accepted his plea, and adjudged him guilty of violating 18 U.S.C. § 2422(b) [Id. at 21-22].

         II. Motions to Accept Reply, Schedule Evidentiary Hearing, and Appoint Counsel

         Petitioner requests that the Court accept and consider his reply brief [Doc. 60] filed in support of his § 2255 motion. The Court will grant this request and consider the brief in making its determination. Petitioner also requests an evidentiary hearing, which the Court finds is not necessary at this juncture. As such, the Court will deny Petitioner's request for an evidentiary hearing.

         Petitioner also requests appointment of counsel to assist him with his § 2255 motion. The court has discretion to appoint counsel when required by the interests of justice under 18 U.S.C. § 3006A. In light of this discretion and after careful consideration, the Court finds that the interests of justice do not require appoint of counsel at this time. In particular, Petitioner has not shown that the issues presented are of a factual or legal complexity that would warrant the appointment of counsel. As such, the Court will deny Petitioner's requests for counsel.

         III. Petitioner's Declaration

         In support of his § 2255 motion, Petitioner filed a declaration [Doc. 51-1]. In his declaration, he asserts that he created the mrhelper@yahoo.com email to explore adult swinger sites. Petitioner states that he began to place advertisements for adults on Craigslist. He states that fun_mom_of_1 (“fun_mom”) replied to his Craigslist advertisement. Petitioner claims that had he had any intention of violating the law, he would not have used his actual name to create his email account. He asserts that searching for the mrhelper account in Google shows that his internet activities were open and legal and that “this is exactly one of the first things [his] attorney's office did.” Petitioner states that he placed an ad, “Fantasy to Fill, ” looking for a mother-daughter team. Petitioner continues that he received a reply from fun_mom, which was actually law enforcement. Petitioner states that in response to fun_mom's question regarding age, Petitioner stated that he would “prefer daughter be 18 yrs.” Petitioner states that he tried to find out the daughter's age, but he was not given the daughter's age in response to any of his email requests. Further, Petitioner states that he met the mother, Gina, at Brusters. After several email exchanges, Petitioner agreed to meet Gina at a hotel and was arrested. Petitioner claims that the advertisement was looking for two adult females, a mother and daughter.

         Petitioner's declaration further provides that in October 2011, he and his attorney prepared for trial. Petitioner's attorney requested information in the mrhelper account about October 31, 2011, but the government responded that it could not access the account. Petitioner states that an officer asked for the answer to the security questions, and with the approval of his attorney, Petitioner and his attorney gave the police the options that would be the correct answers. Petitioner states that he asked his son to verify the question that Yahoo! was asking, which his son did. Petitioner's son told Petitioner that the question being asked by Yahoo! was the same as the question that Petitioner was answering for the police. Petitioner asked his son to verify that the password given to the police was correct, and his son did. Later, Petitioner's attorney expressed concern that the government might use Petitioner's assistance against Petitioner's son and Petitioner. Petitioner states that his son assured him that he did not alter or delete anything while he was in the account. Petitioner claims he received discovery from the government, including an IP report that shows three IPs connected to the Yahoo! account after he was arrested. One IP address was located at the Tennessee State Capital and the other was located in downtown Knoxville, Tennessee. Petitioner states that as he proceeded to trial, the government informed Petitioner's attorney that charges were pending against Petitioner's wife and son. Petitioner's attorney stated that he had reviewed the evidence given to him and that the government had a case against his family. Petitioner states that his attorney told him that if he agreed to sign a proffered plea agreement in the next few days, the government would not file any charges against Petitioner's wife and son, as long as Petitioner did not tell his family about the charges. Petitioner states that after he was imprisoned, he reviewed the jail telephone conversations and documents related to the allegations against his wife and son and that the information does not contain evidence of obstruction of justice.

         IV. Section 2255 Motion

         To obtain relief pursuant to 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         Petitioner alleges the following four grounds for relief in his § 2255 motion: (1) his plea agreement was coerced because the government threatened to bring charges against members of his family; (2) the government engaged in misconduct that corrupted evidence, which was subsequently used to coerce him into entering into a plea agreement; (3) had he proceeded to trial, evidence of entrapment would have ...


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