United States v. Bogomol, 18-11486

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPer Curiam.
PartiesUnited States of America, Plaintiff-Appellee, v. Gregory Bogomol, Defendant-Appellant.
Docket Number18-11486
Decision Date13 August 2021

United States of America, Plaintiff-Appellee,
v.

Gregory Bogomol, Defendant-Appellant.

No. 18-11486

United States Court of Appeals, Fifth Circuit

August 13, 2021


Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CV-216

Before Dennis, Elrod, and Costa, Circuit Judges.

Per Curiam. [*]

After unsuccessfully challenging on direct appeal his guilty plea to two counts of producing child pornography, Gregory Bogomol filed a motion to vacate his sentence under 28 U.S.C. § 2255 contending that he received ineffective assistance of counsel. Bogomol argued in the district court that his trial counsel should have moved to suppress evidence of child pornography obtained from a search of Bogomol's cell phone because his consent to that search was allegedly involuntary. The district court denied the § 2255 motion without conducting an evidentiary hearing. On appeal, Bogomol argues that the district court should have conducted an evidentiary hearing and granted his § 2255 motion. We disagree and hold that the district court did not abuse its discretion. Accordingly, we AFFIRM.

I

In 2013, the Department of Homeland Security received information that a minor male had been induced to send nude photographs of himself to a person presenting as a minor female named "Crystal Williams." When the minor declined a request to send a full-body picture, "Crystal Williams" threatened to send the minor's nude photographs to the minor's friends if he did not comply.

Investigating agents discovered that the phone number and e-mail used by "Crystal Williams" was associated with a credit card belonging to Gregory Bogomol and a physical address associated with Bogomol's father's name. The agents also determined that Gregory Bogomol was a public-high-school teacher living in Fort Worth, Texas. Concluding that they lacked probable cause to conduct a search, the agents went to Gregory Bogomol's residence and knocked on the door.

When Bogomol's wife answered the door, the agents introduced themselves as Department of Homeland Security agents and "stated that [they] were investigating a matter that someone was possibly using [the Bogomols'] identity on the Internet." Bogomol's wife invited the agents inside. Once inside the house, the agents encountered Bogomol and sat down at a table with Bogomol and his wife. At that point, the agents "explained that [they] conduct investigations related to child exploitation" and that "[the Bogomols'] name and address [were] associated with the investigation." The Bogomols then stated that they worked in education and would be happy to assist the agents.

Bogomol consented to a search of his phone. One of the agents, upon viewing the phone, opened an application and saw numerous pictures of young males in different stages of undress. The agent told Bogomol that they needed to talk about the pictures, but that he was not "under arrest or being detained in any way," and that "he did not have to answer any of [the] questions." Bogomol responded that he wanted to speak about it in private, at which point the agents "gave him the opportunity to take a ride with [them] in" the agents' vehicle. After telling his wife that he was going with the agents to fill out some paperwork, Bogomol went with the agents in their vehicle.

Once in the vehicle, the agents again questioned Bogomol about the pictures, and Bogomol confessed to using the online persona of a minor female to entice minor males to produce pictures of their genitals. He admitted that he spent two to three hours per day soliciting nude photographs of minor males, including students at the high school he taught at, and that he would attempt to blackmail victims with their nude photographs if they failed to comply with his demands. The Department of Homeland Security subsequently secured a search warrant for Bogomol's cell phone and found a large number of pornographic images of minors on it.

A federal grand jury indicted Bogomol on two counts of production of child pornography under 18 U.S.C. § 2251(a). Bogomol's defense counsel did not advise him of any potential suppression issues, and Bogomol pleaded guilty pursuant to a written plea agreement. He was sentenced to two consecutive sentences of 360 months' imprisonment.

On direct appeal, Bogomol argued that his conviction was flawed because had "did not admit that the images would move across state lines." United States v. Bogomol, 623 Fed.Appx. 219, 220 (5th Cir. 2015). This court affirmed his conviction, see id. at 221, and the Supreme Court denied his petition for certiorari, see Bogomol v. United States, 577 U.S. 1229 (2016).

Almost a year later, Bogomol filed the instant motion to vacate his sentence under 28 U.S.C. § 2255 in the United States District Court for the Northern District of Texas. He asserted a single claim in the motion: that his defense counsel provided ineffective assistance by failing to file a motion to suppress and failing to advise him of the potential suppression issues prior to the entry of a guilty plea. He argued that the agents induced his consent to their search by giving him and his wife the impression that the agents were investigating identity theft, not child pornography. In support of this assertion, Bogomol attached what he alleged were defense counsel's contemporaneous notes from his intake interview; the notes apparently relayed Bogomol's statement to defense counsel that the DHS agents "said [they were] here for identity theft." That alleged misrepresentation, argued Bogomol, vitiated his consent and made the search unconstitutional under the Fourth Amendment.

The district court denied the § 2255 motion without an evidentiary hearing. It concluded that "no misrepresentation occurred that would have overcome Bogomol's will." As to the intake notes, the district court concluded that (1) the agents' statements about their investigation were not an "affirmative misrepresentation" or "a deliberate attempt to deceive" because "the record shows that agents were present regarding an ongoing child-exploitation investigation that was associated with Bogomol's identity" and (2) that the statement in the notes was unreliable because it was not supported by affidavits or meaningful context. Finally, the district court determined that Bogomol could not show that he had been prejudiced by any potential failing by defense counsel because his plea agreement stated that he had "thoroughly reviewed all legal and factual aspects of this case with his lawyer" and was "fully satisfied with that lawyer's legal representation." The district court declined to grant a certificate of appealability.

Bogomol then moved for a certificate of appealability in this court. The motion was granted on the following issue:

Whether the district court abused its discretion in denying without conducting an evidentiary hearing, his ineffective assistance claim based on counsel's failure to investigate or advance the claim that Bogomol's consent to search his electronic devices was involuntary because it was based on false or pretextual representations or to advise Bogomol as to the possible merit of the suppression issue

II

On an appeal from a denial of a § 2255 motion, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review a district court's refusal to grant an evidentiary hearing on a § 2255 motion for abuse of discretion. Id.

To warrant an evidentiary hearing, the petitioner must "produce[] independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)). "Once such independent evidence is presented, '[a] motion brought under 28 U.S.C. § 2255 can be denied without a hearing only if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.'" Cavitt, 550 F.3d at 442 (quoting United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)). When "the files and records of a case make manifest the lack of merit of a Section 2255 claim, the trial court is not required to hold an evidentiary hearing." United States v. Hughes, 635 F.2d 449, 450 (5th Cir. Unit B Jan. 1981).[1]

III

Bogomol asserts that his counsel's assistance violated his Sixth Amendment right to effective assistance of counsel because his counsel did not investigate or object to the evidence obtained from the search of his phone. To prevail, Bogomol must prove both (1) that his counsel's performance "fell below an objective standard of reasonableness" "under prevailing professional norms" and (2) that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687-88. Under the deficiency prong, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In the context of a guilty plea, counsel's performance is deficient when counsel's advice leaves the defendant unable "to make an informed and conscious choice to plead guilty." Cavitt, 550 F.3d at 441. Under the prejudice prong, the petitioner must show "a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial." United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989) (quoting United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988)).

Because Bogomol's ineffective-assistance claim rests on the viability of his forgone Fourth Amendment claim (that the search of his phone was unconstitutional), our "inquiry . . . entails an assessment of [that] putative Fourth Amendment claim." Cavitt, 550 F.3d at 435.[2] Bogomol's primary argument is that his consent to the agents' search of his phone was involuntary. Whether Bogomol's...

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