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[NOT FOR PUBLICATION]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
_____________
____________________
Charles A. Tamuleviz, Assistant United States Attorneys, on brief
____________________
appellee.

____________________
____________________

Per Curiam.
__________
pro se from
___ __
2255.

Petitioner

the dismissal

Samson O. Agbosasa appeals

of his motion

under 28 U.S.C.

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.

imprisonment,
sentence
sentencing

that

911, and was

sentence

previously imposed
court

also

to
in

mandated

sentenced to
run

an
one

six months

concurrently
unrelated
year

case.
of

with

a
The

supervised

release, including surrender of defendant to the

Immigration

and

proceedings

Naturalization

Service

pursuant to 8 U.S.C.

for

deportation

1101, et seq.
__ ____

Petitioner is currently

awaiting deportation.
The underlying facts and chronology, as culled from
the files
January

and records

1990, petitioner

accident.
claim.
in

in the

He

case, are

was involved

not disputed.
in

retained a lawyer to assist

a motor

vehicle

in processing his

In June 1990, petitioner was granted pretrial release

a pending criminal

proceeding.

Petitioner's

travel was

restricted and he was required to make periodic personal

telephonic reports.
the petitioner's
his

In

consent to

(1)

On August 27, 1990, an investigator from

insurance company

accident claim.

and

called petitioner

about

The investigator obtained petitioner's

tape the

conversation

and (2)

answer

the

-2-

questions

posed in

outset of the

the absence

conversation, the

of

his attorney.

At

investigator inquired

the
into

petitioner's

citizenship status.

was

Lagos, Nigeria,

born in

Petitioner stated that he

came to

the United

States in

1979, and became a United States citizen in 1986.

Approximately

six

weeks

indictment was returned against

later

two-count

petitioner charging him with

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

911, and
U.S.C.

(2) using

408(g)(2).

false social

security number,

42

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

affirmatively
you now

to the presiding

Petitioner then

responded

judge's express query:

"Do

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

indictment in this case,

wilfully

Nigeria.

which charges you with

falsely and

representing yourself to be a citizen of the United

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

In July 1992, petitioner filed this
raising two grounds for relief:
were

violated

insurance

during

the

2255 petition

(1) that his Miranda rights

_______

telephone

interview

with

the

investigator, and (2) that he was denied effective

assistance of counsel because his attorney refused to move to

-3-

suppress

the

statements

conversation. In
petitioner

during

an accompanying

contended that he

conviction,
his

made

the

August

memorandum and

learned, several

27,1990

affidavit,
months after

that the investigator's failure to advise him of

Miranda
_______

rights

statements, made
unrelated criminal

rendered

while he was

petitioner's

on bail awaiting trial

case, inadmissible.

that the investigator

citizenship
in an

Petitioner asserted

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
two-fold.
not in

First, it argued that because

custody or otherwise

the telephone
his Fifth
Arizona,
_______

384 U.S.

charges that the

the petitioner was

deprived of his

conversation with the

Amendment rights

2255 hearing was

freedom during

insurance investigator,

were not

violated.

(1966).

Second,

petitioner's

investigator was acting as an

agent of the

436, 478

Miranda
_______

v.

government were, respondent maintained, false, conclusory and

without any factual support.
496 U.S. 292, 300 (1990),

Relying on Illinois v. Perkins,

________
_______

the government concluded that even

if

the investigator

agent

had been

during the August

functioning

as a

27, 1990 telephone

government

conversation, a

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

suspect gives

law

a voluntary

enforcement

statement to

official.

an

Consequently,

-4-

respondent claimed,

as there

plea proceeding was

deficient under Fed. R. Civ.

petitioner's
basis

for

bald
2255

were no

and unelaborated
relief

and

allegations that

assertions

were

subject

the

P. 11, the
provided no
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

the
case.

under the terms of

June 1990 pretrial release order in a pending, unrelated

Petitioner

investigator

must

also
have

contended
known

of

that
that

the

insurance

pending

criminal

proceeding and

petitioner's "technical custody"

because (1)

within a few hours of the telephone interview, its transcript

was in the
(2)

the

hands of an Assistant United

transcript

afield of routine

showed that

the

States Attorney and

interview

accident claim inquiries in

incriminating information.

ranged far

eliciting the

Illinois v. Perkins was literally

________
_______

inapplicable, petitioner claimed, because both parties to the

telephone interview
Finally,

fully understood each

other's identity.

petitioner attaches importance to the fact that the

investigator

called petitioner

personally despite

the fact

that petitioner's attorney had filed the claim.

-5-

The
motion

"for

district court
the

reasons

set

summarily
forth

response," and this appeal ensued.

denied
in

the

the

2255

government's

II.
__
We

have

little

dismissal was correct.

cell-mate

was an

difficulty

In Illinois v.
________

inmate's incarceration.

or

not

for

the

the

elicited

unrelated to

the

In deciding that neither Miranda nor

_______
statements voluntarily given

agent posing as

496 U.S. at 300, the

agent who

an offense

Amendment applies to

to an undercover

that

Perkins, a prisoner's
_______

undercover government

incriminating statements about

the Fifth

concluding

a fellow inmate,

Perkins,
_______

Court observed that "detention, whether

crime

in question,

does

not

warrant

presumption that the use of an undercover agent to speak with

an incarcerated suspect
involuntary."
is

Id. at 299.
___

speaking with

coercion

confession thus

obtained

When a suspect is unaware that he

_______

government

is missing.

"warnings are

makes any

Id.
___

not required

official,

Thus,

the

the Court

to safeguard the

element

of

held, Miranda
_______
constitutional

rights of inmates who make voluntary statements to undercover

agents."

Id. at 300.
___
Even

pretrial

if

we

were to

assume,

arguendo,
________

that the

release order in the unrelated criminal case placed

restrictions

on petitioner's

liberty

-6-

so as

to

constitute

custody
and

for Miranda purposes

_______

also

assume

that the

at the time

of the interview,

investigator

agent, given the fact that

was

an undercover

petitioner does not claim that he

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

____________________________
a government
fail.

agent, his

No such

investigator

claim to

warnings

be given

before

the

that

elicited

the

incriminating response.

Petitioner's

further

claim

that

Miranda
_______

was

because

counsel

-- either
case

asked

to

must

the questions

criminal

here

needed

Miranda protections
_______

implicated
in the

-- fares

no

he

was

represented

by

insurance

matter or

the pending

better,

since the

element

of

coercion was not satisfied.

Similarly,
conduct

regarding

the

claim

was deficient because he failed

petitioner's voluntary statements made

prejudice resulted.
for

In short,

counsel's errors,

different."

See Murchu
___ ______

the

that

to move to suppress
on August 27,1990, no

it cannot be said

result

counsel's

below

v. United States,
_____________

would

that "but
have

926 F.2d

been
50, 58

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

_____ ______
Accordingly, even under the conspiratorial scenario
petitioner posits,
properly

the petition

subject to summary

was,

dismissal.

as a
We

matter of

law,

have considered

petitioner's remaining arguments and find them without merit.

Affirmed.
________

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