United States District Court, D. New Hampshire
Jeannette Hardy, pro se Seth R. Aframe, Esq.
B. McCafferty United States District Judge.
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.
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
§ 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 the files
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.
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 the apartment, recovered a large quantity of
fentanyl, and arrested 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
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.
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).
subsequently pleaded guilty to the charged offense. The court
sentenced her to 120 months' imprisonment.
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
Ineffective Assistance of Counsel
§ 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)).
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.
Phone Call with Stuart-Holt
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 was in the hospital. Hardy includes with her motion her
affidavit, in which she states that she ...