The opinion of the court was delivered by: Steven J. McAuliffe Chief Judge
Petitioner was convicted by a jury of using an unauthorized access device with the intent to defraud (18 U.S.C. § 1029(a)(2)) and aggravated identity theft (18 U.S.C. § 1028A). He was sentenced to three years in prison. His conviction and sentence were affirmed on direct appeal, and he now seeks relief pursuant to the provisions of 28 U.S.C. § 2255.
As a preliminary matter, the court notes that petitioner has moved to amend his petition. The government does not object and has fully addressed each of the four claims advanced in that amended petition. Accordingly, the motion to amend (document no. 4) is granted.
Petitioner assigns the following errors in support of his amended petition. First, he says the court erred in denying his motion for judgment of acquittal and, relatedly, that his appellate counsel provided ineffective representation to the extent he failed to raise and brief that issue in his direct appeal. Next, he says his trial defense counsel provided ineffective assistance by failing to object to impeachment evidence on Fed. R. Evid. 608(b) grounds and, relatedly, that his appellate counsel likewise provided ineffective assistance when he also failed to challenge that evidence on similar grounds.
For several years petitioner resided with Dorothy Shovan, an elderly and increasingly ailing woman whom he befriended. He became, functionally if not formally, the woman's care-giver and companion, assuming responsibilities such as buying food and paying her bills. To allow Bayard to purchase household items and to pay her bills, Ms. Shovan authorized him to use her credit cards. In 2008, Shovan's health deteriorated substantially; she suffered from severe dementia and was hospitalized. On July 25, 2008, she died.
In August of 2008, Bank of America reissued one of Shovan's credit cards. Petitioner opened the letter containing the reissued card (which was addressed to the now deceased Shovan). He took possession of the card, activated it, and used it for his own benefit. He made several retail purchases and, "[i]n e-mail correspondence, [he] told a resort representative [in New Zealand] that he wanted to pre-pay [for a vacation] using a credit card that belonged to his 'cousin,' who [petitioner] identified in a subsequent e-mail as Shovan." United States v. Bayard, 642 F.3d 59, 61 (1st Cir. 2011). Petitioner charged approximately $3,185.00 to Shovan's Bank of America account.
At trial, petitioner claimed, in general, that his use of the credit card was not "unauthorized," as he had Shovan's specific authorization to use her credit cards. Anticipating that defense, the prosecutor sought leave to introduce evidence showing that petitioner had applied for and obtained a different credit card, from J.P. Morgan Chase, in Shovan's name, at a time when she was unarguably incapacitated, and that he also used that card after she died. The prosecutor argued that the Chase card evidence was probative on the issues of petitioner's intent and absence of mistake relative to his use of the Bank of America credit card.
The court ruled that the probative value of that evidence, presented in the government's case-in-chief, was substantially outweighed by the risk of prejudice, but did not rule out admission of that evidence for a different purpose. After petitioner unequivocally testified under oath that he was authorized to use all of Shovan's credit cards, the prosecutor sought to impeach him with the Chase card evidence.
Petitioner's counsel (petitioner represented himself until after trial began, and then asked stand-by counsel to assume the defense) objected on grounds that the Chase card activity amounted to propensity evidence (Fed. R. Evid. 404(b)), and its probative value was substantially outweighed by the risk of unfair prejudice (Fed. R. 403). The prosecutor countered that the Chase card evidence was now admissible under Fed. R. Evid. 608(b) to impeach petitioner's credibility with respect to his general claim of authorization. The court, after balancing probative value and prejudicial effect (Fed. R. Evid. 403), allowed the prosecutor to ask petitioner about the Chase card activity, but also offered petitioner a contemporaneous limiting instruction to the jury. Petitioner declined the limiting instruction - an entirely reasonable tactical decision.
During the trial, petitioner moved for judgment as a matter of law, in part on grounds that the evidence was insufficient to permit a beyond-a-reasonable-doubt finding that he "used" the Bank of America card to the extent necessary to support a conviction.*fn1 Petitioner asserted that, because he did not "swipe" the card to pre-pay the New Zealand resort, he did not "use" it within the meaning of the statute. That motion was denied, and appellate counsel did not pursue it on direct appeal (nor did petitioner pursue it in his separately-filed pro se appellate brief). The court of appeals did not address that specific argument because petitioner did not appeal the denial of his motion for judgment of acquittal. Bayard, 642 F.3d at 65, n.6.
The petition rests principally upon claims of ineffective assistance of appellate counsel. To establish ineffective appellate assistance, petitioner "must first show that his counsel was objectively unreasonable." Smith v. Robbins, 528 U.S. 259, 285 (2000). That standard is difficult to meet because, to be effective, "appellate counsel . . . need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Id. at 288. And, even if a petitioner makes that showing, he must still "show a ...