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Barth v. United States

United States District Court, D. New Hampshire

May 30, 2019

Anthony Barth
v.
United States of America

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Anthony Barth, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255. In support, he brings four claims that his counsel provided constitutionally ineffective assistance. The government has filed its response. Barth has filed a reply. An evidentiary hearing is not required, and the petition is resolved as follows. Rule 8(a), Rules Governing Section 2255 Proceedings.

         Standard of Review

         A petitioner is entitled to habeas relief if he shows that his sentence was imposed “in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack.” § 2255(a). The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). “[A] defendant who claims ineffective assistance of counsel must prove (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that any such deficiency was prejudicial to the defense.” Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (internal citations and quotation marks omitted).

         Background [1]

         In 2016, the New Hampshire State Police and the Manchester Police were investigating the sale of heroin and fentanyl in southern New Hampshire. They identified Anthony Barth as a distributor of fentanyl. During a meeting with a confidential informant (“CI”) on June 22, 2016, the investigators learned that the CI was familiar with Barth and willing to purchase drugs from him.

         Police officers and the CI arranged drug transactions with Barth, which were conducted under surveillance. On July 28, the CI purchased ten “fingers” of fentanyl from Barth for $3, 000.[2]The CI bought 15 fingers of fentanyl from Barth for $4, 500 on August 3. On August 17, Barth agreed to sell the CI 50 fingers of heroin or fentanyl in Derry, New Hampshire.

         The police officers planned to arrest Barth on August 17. They saw his car parked behind a restaurant and identified Barth. Two marked police cars drove toward Barth's car and stopped with one car in front of Barth and the other behind him. One officer got out of the car, drew his gun, and ordered Barth to stop.

         Barth put his car into reverse and hit the police car behind him. He then shifted into drive and drove toward the officer in front of him. He did not hit the officer. He drove over the median, which consisted of a small lawn, and onto an access road to Walmart. A witness saw him leave his car, run to a dumpster, and then run into the woods. With the witness's information, officers found 25 fingers in the dumpster and 24 fingers near the edge of the woods.

         The same day officers obtained a warrant and searched Barth's home. Barth's father, Russell Barth, and his girlfriend, Alyssa Robichaud, also lived in the house, and the officers spoke to them. During the search, officers found marijuana, heroin, fentanyl, and an anabolic steroid. Inside a safe, they found $47, 000 and a large amount of gold, jewelry, and coins. The appraised value of the gold, coins, and jewelry is $146, 420.

         The drugs purchased by the CI from Barth were tested at the New Hampshire Department of Safety Forensic Laboratory on September 15, 2016. The tests showed that Barth sold 100.1 grams of fentanyl on July 28 and 148.7 grams of fentanyl on August 3. The 49 fingers found on August 17 after Barth ran into the woods contained 492.94 grams of fentanyl. 672 grams of marijuana and 65.58 grams of fentanyl were seized during the search of Barth's home.

         In a complaint filed on September 6, 2016, Barth was charged with possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), and he was arrested the same day. An indictment was filed on September 21, 2016, charging Barth with two counts of distribution of a controlled substance, fentanyl, in violation of § 841(a)(1), and one count of possession with intent to distribute a controlled substance, fentanyl, also in violation of § 841(a)(1). Barth signed an acknowledgement and waiver of rights on May 31, 2017, in which he pleaded guilty to all three counts without a plea agreement. He also acknowledged that the minimum penalty for those offenses was ten years and the maximum penalty was life in prison.

         On June 5, 2017, Barth appeared and entered his guilty plea. During his plea hearing, Barth stated that he understood the maximum penalty for the charges against him was life in prison and the mandatory minimum penalty was ten years in prison. Barth admitted that that he had possessed with intent to distribute more than 400 grams of fentanyl, as charged in Count 3. The defense did dispute the other quantities of drugs attributed to Barth and the cash, gold, and jewelry found in the home that was attributed to Barth.

         Barth objected to the length of the sentence as it was calculated in the presentence investigation report and supported by the government in its memorandum. Before sentencing, however, the defense and the government agreed that the quantity of drugs involved in Barth's offenses equaled 10, 000 to 30, 000 kilograms of marijuana, resulting in a base offense level of 34. They also agreed to a 2 point enhancement for reckless endangerment based on his operation of his car to escape capture and leaving fentanyl in the area, raising the base offense level to 36, which was then reduced to 33 based on acceptance of responsibility.

         Barth's counsel asked the court to consider the circumstances of the controlled buys from Barth, which he argued showed an attempt to manipulate the sentence, as a factor to support a variance from the guidelines. The government disputed that any manipulation ...


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