Huard v . United States 10-CV-258-SM 11/22/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Steven Huard, Petitioner

v. Civil N o . 10-cv-258-SM Opinion N o .

United States of America, Respondent

O R D E R

Steven Huard was convicted by a jury of conspiracy to commit

bank robbery, bank robbery, and the use of a firearm in

furtherance of a crime of violence. He was sentenced to 360

months of imprisonment and his conviction was affirmed on appeal.

He now seeks habeas corpus relief on grounds that his trial

counsel provided constitutionally deficient representation.

.

For the reasons discussed below, Huard’s petition for a writ

of habeas corpus is necessarily denied.

Background

On October 1 9 , 2005, Steven Huard and Sean King drove a

stolen Cadillac STS to the Bellwether Credit Union in Manchester,

New Hampshire. The men, both of whom were armed with handguns

and wearing disguises to conceal their identities, entered the institution. King wore dark clothing and Huard wore a red and

white windbreaker jacket. Huard approached one of the tellers,

flashed his firearm, demanded money, and told the teller that if

he included any “bait bills” or “dye packs,” Huard would kill

him. Meanwhile, King approached a nearby teller station and

jumped the counter - forensic examination would later reveal that

the shoe print left on the counter matched King’s sneaker. Huard

provided King with a bag, into which he stuffed cash from the

teller’s drawer.

After taking more than $18,000 in cash, the men fled to the

parking lot and drove off in the stolen Cadillac. In all, they

were inside the credit union for just over a minute. Although

their identities were obscured, witnesses (both inside and

outside the credit union) described their clothing, build,

height, skin color, firearms, and getaway vehicle. The credit

union’s surveillance video confirmed the witnesses’ descriptions

of the men.

Police subsequently recovered the stolen Cadillac. Although

the vehicle had been wiped clean of any finger prints, police

discovered a portion of a torn latex glove bearing Huard’s finger

print inside the car. Police also received a tip that King had

been bragging about the robbery and his girlfriend, Charlene

2 Claps, might have knowledge about the robbery. When police

interviewed Claps, she told them (and later testified at trial)

that: the day before the robbery, she saw Huard and King wearing

latex gloves and wiping down the stolen Cadillac; she was present

when Huard and King left the Cadillac at a hotel parking lot in

Manchester; several hours after the robbery, King showed her

approximately $10,000 in cash, which she helped him sort and

count; after the robbery, King burned Huard’s red and white

windbreaker - a jacket Claps had seen Huard wearing on several

occasions - near some railroad tracks in Manchester; the weapons

used in the robbery and shown on surveillance video were

consistent with weapons owned by (or at least possessed by) Huard

and King; and on the morning following the robbery, King had

shown her, and insisted that she read, a newspaper article

describing the robbery.

Based on the information Claps provided, police located

Huard’s partially-burned red and white jacket. And, when police

later searched King’s personal effects, they discovered the

newspaper article Claps had described.

Meanwhile, not long after the robbery, Huard made a large

purchase. He bought a used Ford Windstar, paying for it in cash.

Subsequently, Officer Cogswell, a police officer in Billerica,

3 Massachusetts, was informed by fellow law enforcement officers

that Huard was believed to be operating a green Ford Windstar

with an unauthorized license plate. Officer Cogswell was also

told that Huard’s driver’s license had been revoked. Later that

day, Cogswell saw Huard driving the Windstar, ran a check on the

license plate, and learned that it had been stolen. He activated

the cruiser’s blue lights and attempted to stop Huard. Huard

fled, briefly leading the officer on a car chase, speeding

through residential areas. At times, Huard drove on the wrong

side of the road. Eventually, Huard drove back to his own

residence, jumped out of the vehicle, and ran toward, and dove

through, an open basement window. Officer Cogswell followed in

hot pursuit. After a brief but violent struggle in the basement,

Huard was subdued and removed from the house. During the

struggle, two things happened. First, Officer Cogswell noticed

that Huard had taken something from his jacket and attempted to

conceal it under a tarp on the floor. Second, Huard knocked

Cogswell’s hat off his head and onto the floor.

Outside, Huard continued to struggle with the assisting

police officers, but was eventually subdued and secured in the

back of a police car. Officer Cogswell then went back into the

basement to recover his hat. As he was picking up his hat,

Cogswell saw a .45 caliber Ruger automatic handgun lying on the

4 floor (in plain view), in the area where he had previously

noticed Huard attempting to conceal something he had removed from

his jacket. The officer recovered that weapon. Subsequently,

Huard was removed from the police car and the area inside was

searched. Officers found seven rounds of .45 caliber ammunition

in the rear passenger area, where Huard had been sitting.

The firearm recovered from the basement lies at the core of

Huard’s habeas corpus petition. Huard asserts that his defense

counsel provided constitutionally deficient representation

because he did not move to suppress that firearm and offered no

objection to its introduction into evidence at trial. He points

to other instances of allegedly deficient representation as well,

but those contentions are vague, poorly developed, and, in any

event, without merit.

Standard of Review

I.

Generally.

Huard seeks habeas corpus relief under

,

which provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is

5 otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

(a). To prevail on his ineffective assistance of

counsel claim, Huard must “show, by a preponderance of the

evidence, that [his] trial counsel’s conduct fell below the

standard of reasonably effective assistance and that counsel’s

errors prejudiced the defense.” Gonzalez-Soberal v . United

States,

(1st Cir. 2001) (citing Strickland v .

Washington,

(1984)). See also Cofske v . United

States,

(1st Cir. 2002). In assessing the quality

of trial counsel’s representation, the court employs a highly

deferential standard of review and “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that i s , the defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Strickland,

(citation and internal quotation

marks omitted). See also Knight v . Spencer,

(1st

Cir. 2006) (“It is only where, given the facts known at the time,

counsel’s choice was so patently unreasonable that no competent

attorney would have made i t , that the ineffective assistance

prong is satisfied.”) (citation and internal punctuation

omitted).

6 In other words, to satisfy the first prong of the Strickland

test, a petitioner must demonstrate that his counsel made errors

that were “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Smullen v . United States,

0 , 23 (1st Cir. 1996) (quoting

Strickland,

8 7 ) . To satisfy the second prong of the

Strickland test, a petitioner must show “actual prejudice,” by

demonstrating that there is a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Janosky v . S t . Amand,

9 , 45

(1st Cir. 2010) (quoting Strickland,

9 4 ) . A

reasonable probability is one “sufficient to undermine confidence

in the outcome.”

Given that standard, a petitioner asserting an ineffective

assistance of counsel claim bears “a highly demanding and heavy

burden. [His] failure to satisfy one prong of the Strickland

analysis obviates the need for a court to consider the remaining

prong.” Knight,

(citations omitted).

Discussion

To obtain habeas corpus relief, then, Huard must: (1) show

that Officer Cogswell’s warrantless entries into his basement -

first, in hot pursuit of Huard and, later, to recover his hat -

7 and the resulting seizure of the firearm were unconstitutional;

and (2) overcome the presumption that counsel’s decision not to

challenge the admissibility of the seized firearm at trial falls

within the bounds of a reasonable trial strategy; and (3)

demonstrate that the failure to challenge the admissibility of

the firearm was “so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”

Strickland,

; and (4) show that but for the

introduction of the firearm into evidence, there is a reasonable

possibility that the outcome of his trial would have been

different.

The basic premise of Huard’s habeas petition - that the

police officer’s warrantless entries into the basement and

subsequent seizure of the firearm violated his Fourth Amendment

rights - i s , at best, weak. Once Huard refused to stop when

Officer Cogswell attempted to pull him over and, instead, chose

to flee, leading the officer on a high-speed chase through

residential areas, he became a fleeing felon.1 The officer was,

1 Under Massachusetts law, buying or receiving stolen goods (like the license plates Huard had on his vehicle) is punishable by “imprisonment in jail . . . for not more than two and one half years.” M.G.L. ch. 266, § 6 0 . Operating a motor vehicle “negligently so that the lives or safety of the public might be endangered” is punishable by “imprisonment for not less than two weeks nor more than two years.” M.G.L. ch. 90 § 24(2)(a). Officer Cogswell had ample reason to believe Huard had committed one or both of those offenses.

8 then, plainly justified in pursuing Huard, into the basement.

See generally United States v . Martins,

(1st

Cir. 2005); United States v . Santana,

8 , 42-43 (1976).

Accordingly, Officer Cogswell’s initial presence in the basement

was lawful. And, while the point might be plausibly debated, it

is unlikely that Officer Cogswell was obligated to obtain a

search warrant before re-entering the basement to recover the hat

that Huard knocked off while resisting a lawful arrest. The

elapsed time after removing Huard was brief, and the process of

taking him into custody was ongoing. But, even assuming, for

argument’s sake, that the firearm was seized in violation of the

Fourth Amendment, and further assuming that counsel’s failure to

seek its exclusion or challenge its admissibility at trial was

not based upon any reasonable trial strategy, and further

assuming that counsel’s failure rendered his legal representation

constitutionally deficient, Huard still has not shown entitlement

to habeas relief under these circumstances.

The firearm, while constituting evidence relevant to the

charges being tried, was not critical to Huard’s convictions, nor

was it particularly compelling evidence. No direct evidence

established that the seized firearm was the one Huard used in the

robbery. That the firearm was taken from Huard shortly after the

robbery tended to show that Huard had access to and possessed a

9 firearm like the one used in the robbery, and permitted a

reasonable inference that the firearm later found in his

possession was the very one used in the robbery. But, evidence

of those facts had already been presented by Claps, who testified

that, prior to the robbery, she had seen Huard with a black and

silver handgun, generally matching the description of the firearm

used by the credit union robber who wore the red and white

jacket. United States v . Huard, Case n o . 06-cr-117-SM, Trial

Transcript Day 2 , Afternoon Session (document n o . 4 0 ) , at 3 9 .

And, witnesses to the robbery, as well as the surveillance video

established that the robber in the red and white jacket had a

firearm in his possession and brandished i t . Whether the

particular firearm introduced in evidence was in fact the firearm

used during the robbery was not critical, and not even

significant. None of the charges being tried required proof that

a specific firearm was used by Huard.

More importantly, however, the evidence introduced by the

prosecution - some of which is recounted above - overwhelmingly

established that Huard was the masked gunman wearing a red and

white jacket who robbed the credit union along with King.

Consequently, even if Huard could establish that the firearm was

seized in violation of his Fourth Amendment rights, and even if

he could demonstrate that trial counsel’s failure to seek its

10 suppression, or object to its introduction at trial, deprived him

of his Sixth Amendment rights, he still could not show (and has

not shown) that he suffered any prejudice as a result. Given the

overwhelming evidence of Huard’s guilt, the outcome of the trial

would not have been different had the seized handgun not been

introduced into evidence.

Conclusion

The evidence of Huard’s guilt - absent the firearm - was

simply overwhelming. As a result, he has not (and cannot)

satisfy the second prong of the Strickland test. That is to say,

he has failed to show that “there is a reasonable probability

that, absent the [alleged] errors, the factfinder would have had

a reasonable doubt respecting guilt.” Strickland,

.

The petition for habeas corpus relief (document n o . 1 ) is

denied. The court declines to issue a certificate of

appealability, but petitioner may seek such a certificate from

the court of appeals under Federal Rule of Appellate Procedure

22. See Rule 1 1 , Federal Rules Governing Section 2254 Cases

(2010);

(c). The Clerk of Court shall enter

judgment in accordance with this order and close the case.

11 SO ORDERED.

"hief Judge

November 2 2 , 2010

cc: David A . Vicinanzo, Esq. Aixa Maldonado-Quinones, AUSA

12