Hardy v. United States, Civil No. 18-cv-182-LM
| Decision Date | 02 November 2018 |
| Docket Number | Civil No. 18-cv-182-LM |
| Citation | 2018 DNH 214 |
| Parties | Jeannette Hardy v. United States of America |
| Court | U.S. District Court — District of New Hampshire |
On October 4, 2016, Jeannette Hardy pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute controlled substances, heroin and fentanyl, in violation of 21 U.S.C. §§ 846 and 841, and, on February 27, 2017, this court sentenced her to serve 120 months in prison. Hardy did not file a direct appeal but now, proceeding pro se, seeks relief pursuant to 28 U.S.C. § 2255 from her conviction and sentence. In support, she raises several ineffective assistance of counsel claims, and alleges prosecutorial misconduct. She further claims that the court improperly applied a two-level enhancement under the sentencing guidelines for possession of a firearm. The government disputes Hardy's claims.1
On October 11, 2018, Hardy filed a "motion for judicial notice." See doc. no. 9. In that filing, Hardy cites additional case law and makes further arguments concerning her ineffective assistance of counsel claims. The court construes document no. 9 as an addendum to Hardy's § 2255 petition, and addresses its arguments in this order.2
Under § 2255, a federal prisoner may ask the court to vacate, set aside, or correct a sentence that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). The burden of proof is on the petitioner. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015). Once a prisoner requests relief under § 2255 the district court must grant an evidentiary hearing unless "the motion and thefiles and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). If the district court does not hold an evidentiary hearing, the allegations set forth in the petition are taken as true "unless those allegations are merely conclusory, contradicted by the record, or inherently incredible." Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).3
On June 22, 2015, Hardy was assaulted by an unknown man as she attempted to enter her apartment building and then was shot in the hand by him as she escaped and ran outside. In the aftermath of the shooting, Hardy, while in the hospital, made statements to law enforcement officers and signed a consent form, authorizing them to search her apartment for evidence related to the shooting. While searching Hardy's apartment, which she leased with Zakee Stuart-Holt, officers discovered a large amount of what they believed to be heroin. Law enforcement officers subsequently obtained a warrant, searchedthe apartment, recovered a large quantity of fentanyl, and arrested Hardy.
Hardy was indicted on one count of conspiracy to distribute and possess with intent to distribute controlled substances, heroin and fentanyl, in violation of 21 U.S.C. §§ 846 and 841. On October 16, 2015, Magistrate Judge Andrea Johnstone appointed Attorney Jaye Rancourt to represent Hardy.
On November 17, 2015, Hardy and Stuart-Holt, who had also been indicted on a charge of conspiracy to distribute and possess with intent to distribute controlled substances, as well as a charge of money laundering, moved to suppress evidence seized during the searches of the apartment. Hardy also moved to suppress certain statements she made following the shooting.
On January 14 and 15, 2016, the court held evidentiary hearings on the motions to suppress. During the hearings, several Manchester Police Department officers testified, as did two medical professionals. The court heard oral argument on the motions to suppress on January 22, 2016. On February 25, 2016, the court denied the motions. See United States v. Casellas, 149 F. Supp. 3d 222 (D.N.H. 2016).
Hardy subsequently pleaded guilty to the charged offense. The court sentenced her to 120 months' imprisonment.
Hardy moves to vacate her conviction and sentence under 28 U.S.C. § 2255. In support, Hardy asserts four claims of ineffective assistance of counsel. She claims that her attorney was ineffective for: (1) failing to argue in the suppression motion that Hardy's consent to search her apartment was involuntary because the police did not permit her to speak to Stuart-Holt before she provided consent; (2) failing to argue in the suppression motion that the police violated the Fourth Amendment by searching and field testing a substance found in her residence; (3) failing to argue in the suppression motion that the evidence log showed that the seizure of a bag containing drugs went beyond the scope of her consent-to-search; and (4) advising her to plead guilty when there was no evidence that she possessed heroin. In addition, Hardy claims that the court improperly applied a two-level enhancement under the sentencing guidelines for possession of a firearm. The court addresses each claim in turn.
When a § 2255 petition is based on ineffective assistance of counsel, the petitioner "must demonstrate both: (1) that 'counsel's performance was deficient,' meaning that 'counsel made errors so serious that counsel was not functioning as the"counsel" guaranteed the defendant by the Sixth Amendment'; and (2) 'that the deficient performance prejudiced the defense.'" United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Under the deficiency prong, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and the petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotation marks omitted). Under the prejudice prong, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Failure to satisfy either the deficiency or prejudice prong defeats an ineffective-assistance-of-counsel claim. Id. at 700.
Hardy faults her attorney for failing to argue in her suppression motion that Hardy's consent to search her apartment was involuntary because the police did not allow her to speak to Stuart-Holt on the telephone prior to giving consent while shewas in the hospital. Hardy includes with her motion her affidavit, in which she states that she wanted to speak to Stuart-Holt, but the officers refused her request.4 See doc. no. 1 at 7-8.
In its order denying Hardy's and Stuart-Holt's motions to suppress, the court addressed the circumstances surrounding Hardy signing the consent-to-search form, as well as Stuart-Holt's phone calls to Hardy while she was in the hospital:
Casellas, 149 F. Supp. 3d at 228-29.6
Assuming that Hardy expressed a desire to speak to Stuart-Holt prior to signing the consent form and that the officers refused her request, Hardy has not shown that her attorney's failure to raise that argument constitutes ineffective assistance of counsel. First, "there is no absolute constitutional right to a telephone call during police questioning," particularly prior to an arrest. United States v. Schaefer, 859 F. Supp. 2d 397, 408 (E.D.N.Y. 2012), aff'd, 519 F. App'x 71 (2d Cir. 2013). That is especially so where, as here, the investigation revealed that Stuart-Holt was on the telephone with Hardy at the time she was shot so he was a witness to the crime. Leshney had a policy of prohibitingwitnesses from speaking to one another during an investigation. Thus, the police had "valid law enforcement reasons" for not allowing Hardy to speak to Stuart-Holt. Id.
Although a phone call is not constitutionally required, the refusal to permit a call may be relevant to the voluntariness of a defendant's consent. "To determine whether consent was voluntary, [the court] examine[s] the totality of the circumstances, which may include consideration of the defendant's 'age, education, experience, knowledge of the right to withhold consent, and evidence of coercive tactics.'" United States v. Hinkley, 803 F.3d 85, 91 (1st Cir. 2015) (). Thus, depending on the ...
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