United States District Court, D. New Hampshire
Stuart-Holt, pro se Seth R. Aframe, Esq.
B. MCCAFFERTY UNITED STATES DISTRICT JUDGE.
August 16, 2016, Zakee Stuart-Holt 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 one
count of money laundering, in violation of 18 U.S.C. §
1956. On November 29, 2016, this court sentenced him to serve
210 months in prison. Stuart-Holt did not file a direct
appeal but now, proceeding pro se, seeks relief pursuant to
28 U.S.C. § 2255 from his conviction and sentence.
filed his petition on December 26, 2017. See doc. no. 1. With
the court's leave, he filed an amended petition, see doc.
no. 4, and an addendum to his amended petition, see doc. no.
9. In those filings, Stuart-Holt raises numerous ineffective
assistance of counsel claims.
has since filed several motions, four of which remain pending
before the court. First, Stuart-Holt moves to join his
co-defendant's, Jeannette Hardy's, § 2255
petition, see Hardy v. United States, 18-cv-182-LM (D.N.H.
Dec. 23, 2018). In support of his motion, Stuart-Holt asserts
that he and Hardy are adopting the same arguments and citing
the same law. See doc. no. 10. Indeed, Stuart-Holt's and
Hardy's petitions appear to be identical in many
respects. But, as discussed below, Stuart-Holt's
subsequent filings raise certain ineffective assistance of
counsel claims that Hardy did not assert in her petition. In
addition, the court has already issued an order denying
Hardy's petition. See Hardy v. United States, No.
18-cv-182-LM, 2018 WL 5784991 (D.N.H. Nov. 2, 2018).
Therefore, the court denies Stuart-Holt's motion to the
extent it seeks to join his petition with Hardy's. In
light of Stuart-Holt's pro se status, the court grants
the motion to the extent it asks the court to consider the
arguments raised and law cited in Hardy's filings in her
§ 2255 case.
remaining pending motions are a “motion for the court
to take judicial notice” (doc. no. 17), a “motion
to amend/supplement motion seeking court to take judicial
notice” (doc. no. 18), and a “motion to expedite
judge's decision” (doc. no. 19). In each of these
filings, Stuart-Holt cites additional case law and makes
further arguments concerning his ineffective assistance of
counsel claims. The court construes document nos. 17, 18, and
19 as addenda to Stuart-Holt's § 2255 petition, and
addresses the arguments raised in those filings 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. 2002).
22, 2015, Jeannette 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. At
the time she entered her apartment building, she was speaking
on the phone with Stuart-Holt, who was incarcerated at the
Merrimack County House of Corrections (“MCHC”)
and with whom she shared a lease on her apartment.
aftermath of the shooting, and while she was in the hospital,
Hardy made statements to law enforcement officers and signed
a consent form, authorizing them to search her apartment for
evidence related to the shooting. During the same time,
Stuart-Holt attempted to reach Hardy by telephone, but law
enforcement officers prevented him from doing so.
searching Hardy's apartment, officers discovered a large
amount of what they believed to be heroin. The officers
subsequently obtained a warrant, searched the apartment,
recovered a large quantity of fentanyl, and arrested Hardy.
Additional investigation led to evidence that (1) Hardy and
Stuart-Holt had participated in a drug trafficking business
since at least July 2014 and (2) Stuart-Holt maintained a
safe deposit box in his name at Bank of America to conceal
proceeds of the drug trafficking business.
Hardy and Stuart-Holt were 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. Stuart-Holt
was also indicted on one count of money laundering in
violation of 18 U.S.C. § 1956. On October 13, 2015,
Attorney Charles O'Leary appeared on Stuart-Holt's
November 17, 2015, Hardy filed two motions to suppress. The
first sought to suppress certain statements she made
following the shooting and the second sought to suppress
evidence seized during the searches of the apartment. On
November 18, 2015, Stuart-Holt filed a motion to suppress,
seeking to suppress evidence seized during the searches of
the apartment as well as evidence seized pursuant to a
warrant during the subsequent search of the safe deposit box.
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 offenses. The
court sentenced him to 210 months' imprisonment.
moves to vacate his conviction and sentence under 28 U.S.C.
§ 2255. In support, he asserts eight claims of
ineffective assistance of counsel. He claims that his
attorney was ineffective for: (1) failing to argue in the
suppression motion that Hardy's consent to search the
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
drugs found in the apartment; (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
Hardy's consent to search; (4) advising him to plead
guilty to conspiracy to distribute and intent to possess
heroin when there was no evidence that he possessed
heroin; (5) failing to argue in the suppression
motion that Hardy's consent to search the apartment was
involuntary because law enforcement officers deliberately
prevented Stuart-Holt from being present and objecting prior
to Hardy signing the consent-to-search form; (6) failing to
adequately argue that the seizure of the bag containing drugs
did not fall within the plain view exception; (7) failing to
recognize that the government's representations in his
plea agreement established his innocence of the charged
offenses; and (8) failing to object to the court's
sentencing calculation. The court addresses each claim in
§ 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