UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeannette Hardy

v. Civil No. 18-cv-182-LM Opinion No.

United States of America

O R D E R

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

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

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

1 In subsequent filings, Hardy contends both that the government’s response to her petition was late, in that it was not filed within 60 days of the court’s March 19, 2018 order as directed, and that it failed to address all of her claims. 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

STANDARD OF REVIEW

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.”

(a). The burden of proof is on the petitioner.

Wilder v. United States,

(1st Cir. 2015).

Once a prisoner requests relief under § 2255 the district court

must grant an evidentiary hearing unless “the motion and the

Contrary to Hardy’s arguments, the government timely filed its response to her petition on May 17, 2018, 59 days after the court issued its order, and the response addressed all of Hardy’s claims.

2 Hardy has also filed a motion to adopt the arguments and law cited in her co-defendant’s, Zakee Stuart-Holt’s, § 2255 petition with regard to the consent search of her apartment (doc. no. 7). Stuart-Holt’s petition raises similar grounds to Hardy’s with regard to the consent search of the apartment. See Stuart-Holt v. United States, 17-cv-748-LM. The government does not object. In light of Hardy’s pro se status, the court grants Hardy’s request to consider the arguments raised and law cited in Stuart-Holt’s petition to the extent they pertain to the consent search of the apartment.

2 files and records of the case conclusively show that the

prisoner is entitled to no relief.”

(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,

(1st Cir. 2002).3

BACKGROUND

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, searched

3 Hardy does not request a hearing, and, as is explained below, Hardy’s and the government’s filings, as well as the record from Hardy’s criminal case, conclusively show that Hardy is not entitled to the relief she seeks. Therefore, a hearing on Hardy’s motion is unnecessary.

3 the 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

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,

(D.N.H. 2016).

Hardy subsequently pleaded guilty to the charged offense.

The court sentenced her to 120 months’ imprisonment.

4 DISCUSSION

Hardy moves to vacate her conviction and sentence under

. 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.

I. Ineffective Assistance of Counsel

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

5 “counsel” guaranteed the defendant by the Sixth Amendment’; and

(2) ‘that the deficient performance prejudiced the defense.’”

United States v. Valerio,

(1st Cir. 2012)

(quoting Strickland v. Washington,

(1984)).

Under the deficiency prong, the petitioner “must show that

counsel’s representation fell below an objective standard of

reasonableness.” Strickland,

. 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.”

(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.”

. Failure to satisfy either the deficiency or

prejudice prong defeats an ineffective-assistance-of-counsel

claim.

.

A. Phone Call with Stuart-Holt

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 she

6 was 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:

About 15-20 minutes after he arrived at the hospital, [Detective] Leshney took a telephone call at the nurses’ station from someone claiming to be Hardy’s husband. Leshney asked the caller for his name several times before the caller hung up. Several minutes later, MCHC Sergeant Matthew Lamanuzzi called the nurses’ station. Lamanuzzi told Leshney that inmate Stuart-Holt was concerned for Hardy’s welfare because Stuart-Holt was on the phone with Hardy when she was shot. Leshney asked Lamanuzzi to have Stuart- Holt call him back on his cell phone. Leshney testified that he wanted to speak with Stuart-Holt to gather information about the shooting and the surveillance system.5

After speaking with Lamanuzzi, Leshney and [Sergeant] Bergeron asked Hardy for consent to search her apartment for evidence of the shooting and to collect the DVR. Leshney presented Hardy with a standard MPD consent form that authorized officers to collect “any letters, papers, materials or other property which they may desire.” Hardy asked Leshney about the

4 In her affidavit, Hardy also states that prior to signing the consent form, she asked to make a phone call to contact her family. Hardy asserts that the officers denied her request.

5 Hardy had previously informed the officers that she had a surveillance system that should have captured the shooting, and that the footage was stored on a DVR located in her apartment.

7 meaning of that phrase, and he told Hardy that their search of the apartment would focus on looking for evidence of the shooting and collecting the DVR. Leshney also explained that if Hardy did not consent to a search of her apartment, he would apply for a warrant. Leshney explained that a judge might not approve the application, but if the judge did, the MPD would search her apartment pursuant to the warrant. Hardy then signed the consent form at approximately 10:15 p.m.

Casellas,

.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,

(E.D.N.Y. 2012), aff’d,

(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 prohibiting

6 Stuart-Holt subsequently called Leshney’s cell phone and asked to speak with Hardy. Leshney refused to allow Stuart-Holt to speak with Hardy because, as Leshney explained at the suppression hearing, “he had a policy of prohibiting witnesses from speaking to one another during an investigation. Since Hardy was on the telephone with Stuart-Holt during the shooting, he did not want to permit them to speak to each other while the investigation was underway.” Id. at 230.

8 witnesses 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,

(1st Cir. 2015) (quoting

United States v. Chaney,

(1st Cir. 2011)

(further citations omitted)). Thus, depending on the “totality

of the circumstances,” the denial of a phone call could render a

“situation sufficiently coercive that the defendant’s consent

was not voluntary.” Schaefer,

.

Here, however, the circumstances surrounding Hardy’s

signing of the consent form show that the alleged denial of

Hardy’s request to speak to Stuart-Holt did not undermine the

voluntariness of Hardy’s consent. In her motion to suppress,

Hardy argued that her consent to search was not valid because

the police obtained it through coercion. The court examined the

circumstances surrounding Hardy’s consent, including Leshney’s

9 statements to Hardy that he would apply for a search warrant in

the event she withheld consent, the purpose for the search, and

Hardy’s physical and mental state prior to giving consent,

including evidence that Hardy asked questions seeking

clarification of certain parts of the consent form. The court

concluded that the government carried its burden to show that

Hardy knowingly, voluntarily, and intelligently consented to the

search of her apartment.

In light of those facts, even 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’s consent

was voluntary and not coerced. The record shows that Hardy

understood at the time she signed the consent form her right to

refuse consent and the terms of her consent. The officers’

alleged refusal to allow her to speak to Stuart-Holt does not

undermine the voluntariness of Hardy’s decision. See Schaefer,

(holding that officers’ refusal to

allow defendant to call his brother did not undermine

voluntariness of consent to search where “the defendant was

presented with and signed the consent form, which explicitly

stated that he had the right to decline the search” and thus

“undoubtedly understood his legal right to refuse consent”);

United States v. Wilson,

(D.C. Cir. 2010)

10 (holding that totality of the circumstances, which included

defendant reading the consent form and understanding that she

did not have to sign it, rendered the defendant’s consent

voluntary despite her claim that officers would not allow her to

make a phone call); United States v. Tejada, No. 04 CR.

1174(LMM),

, at *3 (S.D.N.Y. Oct. 20, 2005) (A

“refusal to allow a person to answer a phone call does not

amount to coercion of the sort that would overcome a reasonable

person’s ability to come to a free and unconstrained choice.”);

United States v. Richter, No. ACM 32106,

, at *4

(A.F. Ct. Crim. App. Sept. 23, 1997) (holding that defendant’s

consent to search his residence was voluntary despite officers

refusing to allow him to make a telephone call because the

totality of the circumstances showed no coercion), aff’d,

(C.A.A.F. 1999).

For these reasons, Hardy’s attorney’s decision to forego

the argument concerning the officers’ refusal to allow Hardy to

speak on the phone with Stuart-Holt was not unreasonable. And,

even if it were unreasonable, Hardy suffered no prejudice

because the court’s ruling would have remained the same.

Therefore, Hardy’s first ineffective assistance of counsel claim

fails.

11 B. Seizure and Field Testing of the Bag of Fentanyl

During the consent search, Detective Andrew Fleming was

assigned to collect, bag, and label evidence. Fleming went into

Hardy’s bedroom and collected the DVR, which was on top of a TV

stand. The TV stand was covered with an off-white powdery

substance. At the end of the search, while doing a “sweep” of

the bedroom, Fleming noticed an open gray plastic shopping bag

on the floor a few feet from the TV stand. Standing above the

shopping bag, Fleming could see that it contained Ziploc bags,

at least one of which was open and contained an off-white chalk-

like object, which was the same color as the powdery substance

on the TV stand. The off-white objects were wrapped in opaque

wax paper. Fleming picked up the bag to get a closer look and

realized the bag contained drugs. Fleming unwrapped the wax

paper and field tested the contents of the bag, and the result

was “presumptive positive” for heroin.7 At that point, the

officers stopped searching Hardy’s apartment and sought a search

warrant.

Hardy asserts two ineffective assistance of counsel claims

based on Fleming opening the wax paper and field testing the

contents of the bag. First, Hardy argues that her counsel was

7 As it turned out, the substance was fentanyl, a controlled drug with properties similar to those of heroin.

12 ineffective for failing to argue that Fleming required a search

warrant to open the opaque wax paper and perform a field test.

Hardy acknowledges in her addendum that her counsel moved to

suppress the contents of the bag and that the court held the

officers’ seizure of the shopping bag was permissible under the

plain view exception. Casellas,

. She

argues, nevertheless, that she asked her counsel to file a

second motion to suppress, based on the argument that opening

the wax paper and field testing the drugs required a search

warrant, regardless of the plain view exception. According to

Hardy, her counsel told her she would file a motion to suppress

on those grounds but never did, and instead informed her that

her only options were to plead guilty or go to trial.

Even if Hardy’s attorney unreasonably failed to challenge

the legality of opening the wax paper and field testing the

drugs without a warrant, Hardy cannot show that the court would

have suppressed the evidence absent her counsel’s error. At the

suppression hearing, the government produced the following

evidence: During the consent search, the officers noticed “wads”

of what appeared to be twenty- and hundred-dollar bills on a

table in the living room. Fleming noted that the TV stand was

covered with an off-white powdery substance, and he noticed a

bag containing off-white chalk-like objects that were the same

13 color as the powder residue. Fleming picked up the bag to get a

closer look and realized, prior to the field testing, that the

bag contained “a lot of drugs.” Casellas,

. The court found Fleming’s testimony in this regard

“credible . . . in every respect.”

at 238 n.17.

This evidence of drug activity would have been enough to

establish probable cause for the search warrant, even without

the evidence that Fleming opened the opaque wax paper and field

tested the drugs. As a result, even if Hardy’s counsel had

filed a second motion to suppress, the court would have denied

the motion.

Hardy’s second ineffective assistance claim regarding the

field testing is based on Fleming’s testimony that the result of

the field test was “presumptive positive” for heroin. According

to Hardy, this testimony was false because the shopping bag

contained fentanyl, which cannot be detected using a heroin

field test kit. Hardy asserts that the prosecutor knew

Fleming’s testimony was false, but still offered it during the

hearing in support of the validity of the search warrant, to

convince the court to deny the motion to suppress and force her

to plead guilty. Viewed generously to Hardy, she claims that

her counsel was ineffective for failing to object to the

prosecutor’s alleged misconduct and for failing to challenge

14 Fleming’s testimony at the suppression hearing concerning the

results of the field test.8

For the same reasons discussed above, Hardy’s theory of

prosecutorial misconduct does not rise to the level of

ineffective assistance of counsel. Even if the government had

not presented Fleming’s testimony at the hearing concerning the

field test, the observed evidence of drug activity would have

been enough to establish probable cause for the search warrant,

and the court would have denied the motion to suppress.

Therefore, Hardy has not shown any prejudice from her

counsel’s alleged error in failing to move to suppress evidence

seized from her apartment based on Fleming’s seizure and field

testing of the contents of the bag. For these reasons, Hardy’s

second ineffective assistance claim is without merit.

8 Hardy did not raise this prosecutorial misconduct claim in a direct appeal. As such, her claim would be procedurally defaulted. See, e.g., Lopez v. United States,

(D. Mass. 2003) (holding that petitioner’s claim for habeas relief for prosecutorial misconduct was procedurally defaulted because petitioner failed to raise that claim on direct appeal and could not demonstrate “cause and actual prejudice or that he is actually innocent,” which would excuse the procedural default). In light of Hardy’s pro se status, however, the court will address her prosecutorial misconduct claim in the context of her ineffective assistance of counsel claim concerning the field testing. See, e.g., United States v. Nelson, No. 2:16-CR-60-DBH,

, at *1 n.1 (D. Me. Aug. 3, 2018).

15 C. Evidence Collection Log

In her addendum, Hardy raises an issue based on the

“evidence collection log” of items seized during the consent

search. She contends that the log shows that the officers

completed the consent search when they found and took the DVR

and then went to the attic to get a box that contained marijuana

and drug paraphernalia. Viewed generously to Hardy, she argues

that her counsel was ineffective for failing to move to suppress

the drugs found during the consent search because the evidence

log shows that search had ended before officers found the drugs.

The record does not support Hardy’s interpretation of the

log. Contrary to Hardy’s theory, the log does not show that the

officers exceeded the scope of her consent because the consent

search had ended before the drugs were found and tested.

Instead, the record reveals that a group of officers searched

the apartment to find the DVR and other evidence of the

shooting. The drugs were found in plain view during that

search.9 Casellas,

.

9 The court made these findings based on the evidence presented at the suppression hearing. Casellas,

. Hardy does not, and, because she did not file a direct appeal, cannot, challenge those findings. See, e.g., United States v. Rivera, No. CRIM. 03-40015-FDS,

, at *2 n.3 (D. Mass. Nov. 21, 2013) (noting that a petitioner is procedurally defaulted from raising factual challenges for the first time in a § 2255 petition).

16 Hardy has not, therefore, alleged a viable ineffective

assistance of counsel claim based on her counsel’s failure to

challenge the scope of the consent search in light of the

evidence log.

D. Lack of Evidence

Hardy’s fourth ineffective assistance of counsel claim is

based on her guilty plea. According to Hardy, her lawyer was

ineffective because she advised Hardy to plead guilty to

conspiracy to distribute and possess with intent to distribute

both heroin and fentanyl, despite the fact that there was no

evidence to support the charge based on heroin. She asserts

that had her lawyer not advised her to plead guilty, she would

have gone to trial.

Hardy’s argument appears to be that there was no evidence

that she conspired to distribute or that she possessed with

intent to distribute heroin because the drugs found in her

apartment were fentanyl, not heroin. Hardy ignores, however,

that the record shows that police discovered evidence that Hardy

and Stuart-Holt were engaged in a drug trafficking business

during which they sold substantial quantities of both heroin and

fentanyl in Manchester beginning in at least July 2014. See,

e.g., United States v. Jeannette Hardy, 15-cr-178-LM, doc. no.

88 at 9-11. Hardy does not explain how her lawyer was

17 ineffective for advising her to plead guilty in light of this

evidence.

II. Sentencing Enhancement

Hardy’s final claim is that the court improperly imposed a

two-level guideline enhancement for possession of a firearm.

She asserts that there was no evidence that she possessed a

firearm at the relevant time.

Claims that a sentencing court erred in a guideline

calculation are not generally cognizable under § 2255. Cofske

v. United States,

(1st Cir. 2002); see United

States v. Lopez,

(D. Mass. 2014) (“Among

other things, permitting defendants to challenge guideline

calculations in a § 2255 proceeding would undermine the direct-

appeal process, and result in a flood of unsubstantial, indeed

trivial, non-constitutional challenges.”). The limited

circumstances under which such claims can be challenged under §

2255 include when “they allege jurisdictional or constitutional

errors or errors that would otherwise result in a miscarriage of

justice.” Brown v. United States, No. 13-CV-21-GZS,

, at *2 (D.N.H. June 7, 2013) (citing Knight v. United

States,

(1st Cir. 1994)). Hardy makes no such

allegations here.

18 Even if Hardy’s claim were cognizable in the § 2255

context, a federal habeas petitioner challenging her sentence

must first raise her argument on direct appeal, or her claim is

deemed procedurally defaulted. See Oakes v. United States,

(1st Cir. 2005). Hardy did not raise her challenge

to her sentence on direct appeal and, therefore, cannot do so in

the § 2255 context.10

For all of these reasons, the court finds that Hardy is not

entitled to relief under § 2255.

CONCLUSION

For the foregoing reasons, Hardy’s motion to adopt Stuart-

Holt’s arguments and law cited in his motion to vacate his

sentence (doc. no. 7) is granted and her motion for relief under

(doc. no. 1) is denied. Because Hardy has not

made a substantial showing of the denial of a constitutional

right, the court declines to issue a certificate of

appealability. See

(c)(2); Rule 11(a), Rules

10 As mentioned above, despite a procedural default, “a federal habeas petition will be allowed to go forward if the petitioner can show either (i) that there is cause for the default and actual prejudice resulting from it, or (ii) that he is actually innocent of the offense of conviction.” Oakes,

. Hardy has not attempted to satisfy this standard.

19 Governing Section 2255 Proceedings. The clerk of court shall

enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge

November 2, 2018

cc: Jeannette Hardy, pro se Seth R. Aframe, Esq.

20