UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Zakee Stuart-Holt
v. Civil No. 17-cv-748-LM Opinion No. 2018 DNH 224 United States of America
O R D E R
On 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.
Stuart-Holt 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.
Stuart-Holt 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.1
The 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
1 In ruling on Hardy’s petition, the court similarly granted Hardy’s motion to consider the arguments raised and law cited in Stuart-Holt’s filings in this case.
2 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 order.
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.” 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).2
2 Stuart-Holt does not request a hearing, and, as is explained below, Stuart-Holt’s and the government’s filings, as well as the record from Stuart-Holt’s criminal case, conclusively show that Stuart-Holt is not entitled to the relief he seeks. Therefore, a hearing on Stuart-Holt’s motion is unnecessary.
3 BACKGROUND
On June 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.
In the 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.
While 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.
4 Both 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 behalf.
On 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.
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).
5 Stuart-Holt subsequently pleaded guilty to the charged
offenses. The court sentenced him to 210 months’ imprisonment.
DISCUSSION
Stuart-Holt 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 (3) failing to argue in the suppression motion that
the evidence log showed that the seizure of a bag containing
3 As with Hardy’s petition, Stuart-Holt’s petition also asserts a prosecutorial misconduct claim based on the prosecutor allegedly suborning perjury concerning the results of the field test. Stuart-Holt’s plea agreement contains a waiver of his right to bring a § 2255 petition other than to assert specific claims, which does not include prosecutorial misconduct. See United States v. Stuart-Holt, 15-cr-178-LM, document no. 60 at 13-14. Even if the claim were not waived, the claim would be procedurally defaulted because Stuart-Holt did not raise it first in a direct appeal. See, e.g., Lopez v. United States, 344 F. Supp. 2d 777, 782 (D. Mass. 2003). As the court did with Hardy’s claim, however, in light of Stuart-Holt’s pro se status, the court considers Stuart-Holt’s prosecutorial misconduct claim in the context of his ineffective assistance of counsel claim concerning the search and field test of the drugs found in the apartment.
6 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;4 (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 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
4 Stuart-Holt asserts that he is entitled to habeas relief because the government did not address his claim concerning the lack of evidence that he possessed heroin. The government’s failure to address a claim raised in a § 2255 petition, however, does not entitle a petitioner to relief. See Quinones-Torres v. United States, 240 F. App’x 876, 878 (1st Cir. 2007). Regardless, the government did object to that identical claim in Hardy’s § 2255 petition, and the court addressed that claim in its order denying Hardy’s petition. See Hardy, 2018 WL 5784991, at *6. For the reasons stated in that order, that claim fails.
7 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.
I. Stuart-Holt’s First Four Ineffective Assistance Claims
Stuart-Holt’s first four ineffective assistance of counsel
claims are identical to claims presented in Hardy’s § 2255
petition. On November 2, 2018, the court denied Hardy’s
8 petition, holding that she had not shown that she received
ineffective assistance of counsel. See Hardy, 2018 WL 5784991,
at *2-6. The court addressed in depth each of those four claims
in that order, and considered all arguments raised and law cited
in Stuart-Holt’s filings.
The court does not repeat its analysis here. For the
reasons stated in the court’s order denying Hardy’s petition,
claims fail.
II. Stuart-Holt’s Objection to Hardy’s Consent
Stuart-Holt faults his attorney for failing to argue in his
suppression motion that Hardy’s consent to search the apartment
was involuntary because the officers intentionally prevented
Stuart-Holt from objecting to the search. He claims that his
attorney’s failure to raise this argument constitutes
ineffective assistance of counsel because that argument would
have resulted in the court granting his motion to suppress.
In its order denying Hardy’s and Stuart-Holt’s motions to
suppress, the court addressed the circumstances surrounding
Hardy’s consent to the search, 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
9 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 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, 149 F. Supp. 3d at 228-29.6
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.
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.
10 Stuart-Holt contends that his attorney was ineffective for
failing to argue that Leshney intentionally prevented Stuart-
Holt from being able to object to Hardy’s consent to search.
Even if his counsel had made that argument, however, the court
would still have denied the motions to suppress.
As the court noted in its order denying the motions to
suppress:
Stuart-Holt asserted at the hearing that he affirmatively objected to the search while on the phone with Leshney. The evidence in the record, including Stuart-Holt’s affidavit, does not support that assertion and the court finds that he did not object while on the telephone with Leshney. Even if the court agreed with Stuart-Holt that he interposed an objection while on the telephone with Leshney, such a finding would not negate Hardy’s consent. See Fernandez v. California, 134 S. Ct. 1126, 1133-36 (2014) (noting that under [Georgia v.] Randolph, a warrantless search done on the basis of an occupant’s consent may be unreasonable if a co-occupant objects to the search, but the “holding [is] limited to situations in which the objecting occupant is [physically] present”).
Casellas, 149 F. Supp. 3d at 239 n.18. In other words, in
denying the motions to suppress, the court held that even if
Stuart-Holt had objected to Hardy’s consent, that objection
would not have undermined Hardy’s consent because Stuart-Holt
was not physically present at the hospital. Thus, any argument
based on the premise that Leshney intentionally prevented
Stuart-Holt from objecting would have been fruitless, as any
objection by Stuart-Holt under the circumstances would not have
11 invalidated Hardy’s consent.7 Therefore, Stuart-Holt has not
shown that his counsel was ineffective for failing to make that
argument.
III. Plain View Exception
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
7 To the extent Stuart-Holt intended to claim that his counsel was ineffective for failing to argue that Leshney somehow prevented Stuart-Holt from being physically present at the hospital to voice an in-person objection to Hardy’s consent, that argument fails. Stuart-Holt was incarcerated at the MCHC at the time, and that argument would have been unpersuasive.
12 was “presumptive positive” for heroin.8 At that point, the
officers stopped searching Hardy’s apartment and sought a search
warrant.
Hardy and Stuart-Holt moved to suppress the drugs, arguing
that Fleming seized the bag, which went beyond the scope of
Hardy’s consent. The court found that the seizure of the bag
was permissible under the plain view exception. Casellas, 149
F. Supp. 3d at 236-38.
Stuart-Holt faults his attorney for allegedly failing to
adequately argue that the seizure of the bag containing drugs
did not fall within the plain view exception. Although he takes
issue with the court’s conclusion that the plain view exception
applied, Stuart-Holt fails to explain adequately how his counsel
was ineffective with regard to his arguments concerning the
seizure of the bag. For example, Stuart-Holt contends that his
counsel failed to inform the court that Fleming “did not
lawfully reach the vantage point” where he would have seen the
bag. But Stuart-Holt’s and Hardy’s attorneys argued strenuously
that the plain view exception did not apply, in part for that
very reason. Therefore, Stuart-Holt has not shown that his
8 As it turned out, the substance was fentanyl, a controlled drug with properties similar to those of heroin.
13 counsel committed any error with regard to his arguments
concerning the plain view exception.
IV. Plea Agreement
Stuart-Holt next faults his attorney for failing to
recognize that the government’s representations in Stuart-Holt’s
plea agreement established his innocence of the charged
offenses.9 He points to two alleged errors. The first is that
he pleaded guilty to conspiracy to distribute and to possess
with the intent to distribute “the Schedule II controlled
substance fentanyl.” Stuart-Holt, 15-cr-178-LM, document no. 60
at ¶ 1. Stuart-Holt notes that the laboratory report on the
drugs seized from his apartment stated that the drugs were the
“narcotic drug fentanyl,” doc. no. 4 at 42, rather than the
“Schedule II controlled substance fentanyl.” Second, Stuart-
Holt notes that the plea agreement states that the police seized
182 fingers of heroin, when the substance seized was actually
9 Stuart-Holt challenges the validity of his plea agreement directly, rather than framing it as an ineffective assistance of counsel claim. As mentioned above, the plea agreement contains a waiver of Stuart-Holt’s right to bring a § 2255 petition other than in certain limited circumstances, including that his counsel was ineffective. In light of Stuart-Holt’s pro se status, the court will address his challenges to the plea agreement in the context of an ineffective assistance of counsel claim.
14 fentanyl. Stuart-Holt argues that his counsel was ineffective
for not realizing these errors.
Stuart-Holt has not shown that his counsel’s performance
was deficient. Fentanyl is a Schedule II controlled substance.
21 C.F.R. § 1308.12(c)(9). The fact that the lab report at one
point described the substance as the “narcotic drug fentanyl,”
rather than specifically identifying it as a Schedule II
controlled substance, is irrelevant. Indeed, the lab report
later refers to “the schedule II narcotic drug fentanyl.” Id.
at 42, 43. Therefore, his counsel was not ineffective for
failing to raise Stuart-Holt’s first argument.10
With regard to Stuart-Holt’s second challenge, the plea
agreement states, in relevant part:
Based on these observations, officers secured the residence and applied for a search warrant. On June 23, 2015 Manchester District Court Judge William Lyons signed the warrant and law enforcement executed a search of Hardy's residence. In total, officers seized 182 fingers of heroin and approximately
10 Stuart-Holt also appears to argue that his counsel was ineffective for failing to realize that the lab report showed that the substance tested was acetyl fentanyl, which the lab report notes was not itself a controlled substance at the time of the testing. But Stuart-Holt misinterprets the report. Although the analysis showed the presence of acetyl fentanyl, as discussed, it also showed the presence of the narcotic drug fentanyl. Regardless, as stated in the lab report, the chemical structure of acetyl fentanyl is “substantially similar to the schedule II narcotic drug fentanyl,” doc. no. 4 at 42, and thus could be deemed a controlled substance analogue, 21 U.S.C. § 802(32)(A).
15 $198,542 in cash from the apartment. The suspected drugs were field tested and the test indicated a presumptive positive result for heroin. Lab testing ultimately identified the substance as fentanyl with a total weight of 1,783.69 grams.
Stuart-Holt, 15-cr-178-LM, document no. 60 at 4-5. Stuart-Holt
faults his attorney for not pointing out that the officers
actually seized 182 fingers of fentanyl, not heroin as the plea
agreement states.
Stuart-Holt’s second challenge is without merit. The plea
agreement states that the fingers tested presumptively positive
for heroin but that lab testing ultimately identified them as
fentanyl. Therefore, Stuart-Holt’s counsel did not provide
ineffective assistance by failing to clarify that sentence in
the plea agreement.
V. Sentence
Stuart-Holt faults his attorney for failing to object to
the court’s sentence on the ground that the court improperly
found a base level offense of 37 under the sentencing
guidelines. According to Stuart-Holt, that offense level was
based on a miscalculation of the amount of money and drugs
attributed to him.11
Stuart-Holt raises a direct challenge to his sentence. As 11
discussed above, Stuart-Holt waived his right to bring such a challenge and, in any event, such a claim is generally not
16 Stuart-Holt has not shown that his counsel was deficient in
failing to challenge the offense level. Although Stuart-Holt
comes up with his own calculation as to the appropriate amount
of money and drugs that should have been attributed to him, that
calculation is simply unsupported by the record evidence.
Therefore, his counsel’s failure to object on that basis was not
unreasonable.12
CONCLUSION
For the foregoing reasons, Stuart-Holt’s motion to join
petitions (doc. no. 10) is denied to the extent it seeks to join
his petition with Hardy’s, but granted to the extent it seeks to
cognizable in the § 2255 context. See Cofske v. United States, 290 F.3d 437, 441 (1st Cir. 2002). Even if Stuart-Holt could assert such a claim in this context, the claim is procedurally defaulted because Stuart-Holt did not raise it on direct appeal. See Oakes v. United States, 400 F.3d 92, 95 (1st Cir. 2005). As with Stuart-Holt’s challenge to his plea agreement, however, in light of his pro se status, the court will address his challenges to his sentence in the context of an ineffective assistance of counsel claim.
12 Stuart-Holt also asserts that he was not given a copy of the Presentence Investigation Report. At the sentencing hearing, Stuart-Holt’s counsel stated that he reviewed the report with Stuart-Holt in advance of the hearing, and relayed to the court Stuart-Holt’s request to have a copy of the report. The government represented that the report was accessible and available at the prison where Stuart-Holt was being held, but that the prison did not allow inmates to retain copies of the report. Stuart-Holt stated that he understood. To the extent Stuart-Holt attributes some error to his counsel with regard to the report, that claim is unavailing.
17 adopt Hardy’s arguments and law cited in her § 2255 petition and
subsequent filings. His motion for relief under 28 U.S.C. §
2255 (doc. no. 4) is denied. Because Stuart-Holt has not made a
substantial showing of the denial of a constitutional right, the
court declines to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2); Rule 11(a), Rules 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 8, 2018
cc: Zakee Stuart-Holt, pro se Seth R. Aframe, Esq.