UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Patricia Taylor

v. Civil No. 06-cv-287-JD

Opinion No. 2006 DNH 138

United States of America

O R D E R

Patricia Taylor, proceeding pro se, seeks relief from her

conviction and sentence pursuant to 28 U.S.C. § 2255. Her

conviction is based on her guilty plea to three counts of bank

fraud for which she received a fifty-one month sentence and was

ordered to pay a fee of $300 and restitution of $1,700. In

support of her § 2255 motion, Taylor asserts that she received

constitutionally ineffective assistance of counsel. The

government opposes Taylor’s motion.

Standard of Review

When a petition for relief under § 2255 is not dismissed

initially, the court must determine whether a hearing is

necessary. Rule 8(a) of Rules Governing § 2255 Proceedings. A

hearing is not necessary “where a habeas motion (1) is inadequate

on its face, or (2) although facially adequate is conclusively

refuted as to the alleged facts by the files and records of the

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case.” Carey v. United States, 50 F.3d 1097, 1098 (1st Cir.

1995). When no evidentiary hearing is held, “[t]he court must

take the allegations contained in the petitioner’s motion as

true, except to the extent that they are contradicted by the

record or are inherently incredible, and to the extent they are

merely conclusions rather than statements of fact.” Id.

(internal quotation marks omitted).

Background

Taylor was arrested on March 15, 2004, at the Granite Bank

in Concord, New Hampshire, when her efforts to obtain a loan

raised the suspicions of bank employees who called the police. 

Taylor then provided false account information to a Concord

police officer. She had previously opened an account at that

bank with checks drawn on an account in Maryland that had

insufficient funds to cover the checks Taylor had written. 

Before the Granite Bank realized the deficiency, between March 8

and March 12, 2004, Taylor withdrew $5,250 from the account. 

Taylor states that the arresting officer opened a sealed envelope

containing the money she had withdrawn and removed the bills that

were banded together. The police reported that $4,150 was

recovered at the time of her arrest. Taylor contends that the

police seized $5,150 from her.

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1Taylor submitted a letter from Dr. Drogin, dated February

15, 2006, in which he responds to her letter of February 9, 2006,

asking him about issues pertaining to nervous breakdowns. In his

letter, Dr. Drogin summarizes some of the information Taylor had

provided during his examination of her in May of 2004. Dr.

Drogin does not provide an assessment or substantiate Taylor’s

statements about her emotional condition.

3

Taylor was indicted on two charges of bank fraud. Taylor

was initially represented by the federal public defender’s

office. Taylor states that her counsel arranged for a competency

assessment by Dr. Eric Drogin in April of 2004. She asserts that

Dr. Drogin found that she was under severe duress before she

committed the crimes. She also asserts that Dr. Drogin found

that she had suffered one and possibly two nervous breakdowns

between July and November of 2003. Taylor does not provide any

results from that assessment.1

On June 10, 2004, Taylor hired private counsel, Charles

O’Leary, and he represented Taylor during the remainder of the

proceedings. After reviewing her file, O’Leary advised Taylor

that she would receive a twenty-four to thirty month sentence. 

Taylor’s previous counsel had given her the same advice. Taylor

states that although O’Leary told her that he would file a motion

for severance of count two from the remaining counts and that

severance was important for her defense, he did not file a motion

or otherwise pursue the issue.

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In mid-July of 2004, Taylor wrote to the Concord Police

Department demanding return of property taken from her at the

time of her arrest. She stated that her car was impounded and

that $4,150 was taken from her purse. She also stated that

neither her husband nor her attorney, Charles O’Leary, had been

able to get information about her property. The record does not

include the police department’s response to her letter.

Taylor contends that O’Leary told her that the prosecutor

wanted “three pieces of information and if he was satisfied he

wouldn’t pursue the case.” Memorandum (doc. no. 1) at 2. Taylor

states that her husband provided information about an account she

set up for a business loan from Wachovia Bank and information

that the bank officer involved in approving the account had been

arrested for fraud. When Taylor provided that information, she

says that O’Leary told her it would “wrap up the case” and that

she would be released but two days later he told her that he

could not use the information she had provided. Taylor faults

O’Leary for not hiring a private detective to investigate the

circumstances of the Wachovia account. 

Taylor’s daughter died on January 8, 2005, and the funeral

was held in Maryland on January 12, which Taylor was unable to

attend because she was incarcerated. Taylor states that she

discussed her daughter’s death with O’Leary. She also states

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that the circumstances of her life before and after the charges

were brought against her caused extreme emotional disturbance. 

Taylor contends that O’Leary pressured her into signing the

plea agreement by telling her he had only one hour to return the

signed agreement to the prosecutors or the agreement would be

void. Taylor asserts that she never received a copy of the plea

agreement. She also states that she was taking Valium at the

time she signed the plea agreement because of severe depression

and grief. 

On January 12, 2005, the government filed an information

charging Taylor with three counts of bank fraud. On the day of

the change of plea hearing, January 13, 2005, Taylor states that

O’Leary brought a box of disorganized papers to court, which

constituted her file. She looked through the papers and found a

document which, she believes, should have been submitted to the

prosecutor. She also states that she asked O’Leary why the plea

agreement did not specify the sentence as being between twentyfour and thirty months and that he answered that the length of

the sentence was agreed but never appeared in an agreement. 

 Taylor appeared in court, with counsel, on January 13, 2005. 

In response to the court’s questions, she stated that she did not

have an alcohol or drug problem, that she had never been treated

for such a problem in the past, and that she was then taking

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Ativan, which she identified as an anti-anxiety medication

prescribed for her because of her daughter’s recent death. 

Taylor testified that she had had enough time to talk with her

counsel about the case, that she had told him everything she knew

about the case, and that she was satisfied with his

representation of her. She testified that she had reviewed the

plea agreement with her attorney and signed it freely and

voluntarily. She also denied that anyone had said or done

anything to force her to enter the guilty plea. She waived

indictment and pled guilty to all three counts in the

information. The court accepted her pleas and set a date for

sentencing that was later changed to May 31, 2005.

Taylor states that she was interviewed, with O’Leary

present, in March of 2005, by Melissa Thibaud, a United States

Probation Officer. She contends that she received three copies

of the presentence report on May 5, 2005, but that O’Leary did

not review the report with her. She noted that the instructions

in the packet from Thibaud were for O’Leary to review the report

with her and to make any corrections. Taylor also noted that

Thibaud requested documents about the custody of her

grandchildren that Taylor’s husband had sent to O’Leary two

months previously. Taylor claims she made corrections and sent

the packet of copies of the presentence report back to O’Leary

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who then lost the packet and ignored the corrections she had

made. Taylor also states that O’Leary lied to her and told her

that he had submitted her corrections to Thibaud. She notes that

O’Leary sent a letter to Thibaud on May 10, 2005, stating that

Taylor had no factual or legal objections to the presentence

report.

The presentence report states that Officer Miguel Ceborello

of the Concord Police Department recovered $4,150 from Taylor

when he placed her under arrest. The property report form filed

by Ceborello after Taylor’s arrest states that $4,150 was taken

from Taylor. The plea agreement also states that $4,150 was

recovered at the time of her arrest. The presentence report

states in the “Victim Impact” section, however, that Taylor

agreed as part of the plea agreement to permit the Concord Police

to deliver the money that was recovered from her at the time of

the arrest and that “[a]ccording to Susan Shanoff of Granite

Bank, the bank has received $3,650 from the Concord Police

Department.” Presentence Report ¶ 12. As a result, the

restitution amount still owed to the Granite Bank was reported to

be $1,700.

In the criminal history section, the presentence report

lists thirty-three adult criminal entries that resulted in a

total of forty-five criminal history points. Taylor’s crimes of

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conviction were theft, passing bad checks, and forgery. Based on

the Sentencing Guidelines, forty-five points establishes a

criminal history category of VI. 

The section of the presentence report titled “Offender

Characteristics” describes Taylor’s family, including her exhusbands who were alcoholic and abusive, along with other family

members with substance abuse problems. The report states that

Taylor has had mental health and emotional problems. Although

medication was prescribed for those conditions, Taylor denied

ever taking the prescribed medication, and one counselor

confirmed that Taylor had not taken the medication prescribed for

her. With respect to substance abuse, the report states as

follows:

Taylor admitted to consuming alcohol occasionally

usually during social events. She denied drinking to

intoxication or any problems associated with alcohol. 

The defendant disclaims any history of substance abuse

or participation in treatment for substance abuse

issues.

Presentence Report ¶ 101. On May 10, 2005, O’Leary sent a letter

to Thibaud in which he stated that Taylor had no factual or legal

objections to the presentence report.

Taylor states that O’Leary told her before sentencing that

her claim that she had $1,000 more than the police reported in

her possession at the time of her arrest could not be proven. He

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said that he would look into that issue, however, and the $500

discrepancy between the amount that was reportedly taken from her 

at the time of her arrest and the amount delivered to Granite

Bank after she was sentenced. On the day of the sentencing

hearing, May 31, 2005, Taylor states that she asked O’Leary if

she would receive twenty-four to thirty months as her sentence. 

He replied that the presentence report recommended a fifty-one

month sentence and that was what she would receive. 

At the sentencing hearing, O’Leary told the court that the

defense had no objection to the presentence report. Taylor had

prepared a brief statement that was read by O’Leary. In her

statement, Taylor acknowledged her extensive criminal history,

described problems she had had due to avoiding responsibility for

her actions, and described problems with her family and finances. 

Taylor was sentenced to serve fifty-one months, to pay a fine of

$300, and to pay restitution to Granite Bank in the amount of

$1700. Judgment was entered on June 2, 2005. 

Taylor alleges that O’Leary stopped communicating with her

after she filed a professional conduct complaint against him. 

Proceeding pro se, Taylor filed a notice of appeal on June 10,

2005, in which she asked that counsel be appointed to represent

her because she was indigent. From that point forward, Taylor

has represented herself in the proceedings in this court. 

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On June 1, 2005, Taylor wrote to Melissa Thibaud, the

probation officer who prepared her presentence report, asking if

she had received a copy of the presentence report with Taylor’s

corrections and explanations. On June 10, 2005, Taylor wrote to

Thibaud again and enclosed a copy of the criminal history section

of the presentence report with her corrections and notations. 

Taylor wrote again on July 1, after she had been transferred to

the Federal Correctional Institution at Danbury, Connecticut,

(“FCI Danbury”) to give Thibaud her contact information.

Taylor also wrote to the prosecutor, Assistant United States

Attorney Kinsella, on June 1, 2006, asking about the money that

was taken from her at the time of her arrest. She stated that

the arresting officer took $5,000 from a sealed packet and an

additional $150 from her purse. Based on those representations,

she argued that the $3,650 returned to Granite Bank after her

sentencing was $1500 less than the amount taken from her. 

Kinsella responded to Taylor’s letter by writing to O’Leary

and explaining that the arresting officer indicated he had

recovered $4,000, not $5,000, as the amount of money from

Taylor’s withdrawal. Kinsella noted that Taylor had admitted

that amount several times, including in her correspondence and

the plea agreement, and had not raised the $5,000 theory until

recently. Kinsella acknowledged the discrepancy between the

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$4,150 the arresting officer reported and the $3,650 that was

returned to the bank. He explained that he contacted Lieutenant

Walter Carroll at the Concord Police Department about the

discrepancy. Carroll told Kinsella that the officer who prepared

the money to be returned to the bank found only $3,650 and that

Carroll investigated and determined that the arresting officer

had miscounted the money he recovered at the time of Taylor’s

arrest. He confirmed that $3,650 was the correct amount. 

The court denied Taylor’s motion for return of $1,500 on

September 15, 2005, due to lack of jurisdiction and lack of

merit. Taylor appealed that decision.

Taylor wrote to the court on July 11, 2005, about receiving

mental health therapy and participating in a residential drug and

alcohol treatment program available at FCI Danbury. She reported

that she would need a court order to be admitted into a program. 

The court referred Taylor’s request to the probation department

for review. 

On July 21, Clayton Foster, Deputy Chief United States

Probation Officer, responded. Foster reported that he had

reviewed the presentence report, had spoken with Thibaud about

the report and Taylor, and had spoken with Taylor’s counselor at

FCI Danbury. Foster confirmed that the presentence report

indicated that Taylor did not have an alcohol or other substance

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abuse problem and that the presentence report covers Taylor’s

mental health history. Taylor’s counselor told Foster that

contrary to Taylor’s representations in her letter to the court,

Taylor had not yet been screened at FCI Danbury and she had not

advised Taylor to seek modification of the judgment in her case

to establish her eligibility for a treatment program. Foster

concluded that facts did not exist to warrant amending the

judgment in Taylor’s case to include a requirement for treatment

for alcohol or substance abuse. 

The court denied Taylor’s request for an order to amend

judgment based on the probation department’s report. The court

noted that Taylor would be screened by the Bureau of Prisons and

that “if it is determined that she is in need of counseling or

any program, whether it be for mental health or for drug or

alcohol problems, she will be placed in an appropriate program.” 

On August 22, 2005, Taylor filed a motion to amend the

presentence report. In her motion, Taylor represented that she

had requested many changes in the presentence report but that

neither O’Leary nor Thibaud thought her changes were necessary. 

She stated that amendment was necessary to make her eligible for

substance abuse treatment and that, contrary to the presentence

report, she was an alcoholic. The court again referred the

matter to the probation department for review. Foster reported

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that he had contacted Taylor’s counselor at FCI Danbury who

stated that she had referred Foster to the substance abuse

counselor at the prison. The counselor also confirmed that

Taylor’s screening had found her eligible for treatment except

that her problems were not corroborated in her presentence

report.

The substance abuse counselor told Foster that Taylor would

be eligible for the treatment program only if her statements

about alcohol and substance abuse were found to be true, which

required corroboration that was not in the presentence report. 

Foster found that Taylor had reported different experiences about

substance abuse to Thibaud and to the FCI Danbury counselor,

undermining Taylor’s credibility. He also talked with O’Leary

who reported that he was present and recalled Taylor’s

presentence interview with Thibaud and that the report was

accurate. He also confirmed that all of the corrections Taylor

had requested to the presentence report pertained to her criminal

history, not to information about her use of alcohol or other

substances. Foster concluded that corroborating information was

lacking to support Taylor’s recent self-reports of drug and

alcohol abuse and noted that her reports “appear[] to have

coincided with Taylor becoming aware of the sentence reduction

benefits to the 500 hour program.” The court denied Taylor’s

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2Taylor alleges that O’Leary withheld evidence that the

prosecutor had requested, lost documents, never reviewed the

presentence report or made her corrections to it, made promises

that were not kept as to the length of her sentence, and did not

pursue an issue about the amount of restitution. She also

complains about the circumstances of her guilty plea.

14

motion because the probation department’s review did not find

sufficient substantiation to support the requested change.

Taylor filed separate appeals of the court’s decisions

denying her motion for money to be returned to her and her motion

to amend the presentence report. The First Circuit consolidated

the appeals and affirmed both decisions.

 Discussion

In her motion for relief under § 2255, Taylor claims that

O’Leary’s representation of her constitutes ineffective

assistance of counsel based on a multitude of alleged errors and

deficiencies.2 Taylor identifies four issues in her memorandum

in support of her motion for § 2255 relief: the plea agreement,

restitution, the presentence report, and “evidence.” In her

response to the government’s objection to her § 2255 motion,

however, Taylor limited the issues she is raising in support of

relief. 

Taylor stated unequivocally that she is not questioning her

plea or her sentence. Instead, the issues she is pursuing are

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the presentence report and restitution. She stated that she

included details about lost documents, rushed decisions, missed

deadlines, and miscommunication with O’Leary only to show a

pattern of ineffective representation. Therefore, the court

interprets Taylor’s claims in support of her request for § 2255

relief to be (1) that she received constitutionally ineffective

representation due to O’Leary’s alleged failure to submit her

corrections of the presentence report to the probation department

and (2) due to O’Leary’s failure to pursue her assertions that

more money was taken from her by the Concord police than was

returned to Granite Bank.

To succeed on her ineffective assistance of counsel claim,

Taylor must establish that her counsel’s performance was

deficient and that the deficiency prejudiced her defense. United

States v. Colon-Torres, 381 F.3d 76, 85 (1st Cir. 2004) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient

performance, in this context, means that “counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. Counsel’s

deficiency prejudices the defense only if there is a reasonable

probability that but for counsel’s errors the outcome of the

proceedings would have been different and more favorable to the

defendant. Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006). 

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A. Presentence Report

Taylor contends that O’Leary provided ineffective assistance

when he failed to consult with her about the presentence report

and failed to submit her corrections to the probation department. 

She asserts that if her input had been sought and her corrections

and explanations had been submitted to the probation department,

her criminal history would have been reduced, resulting in a

lower criminal history score. She also contends that her

statements about her alcohol and drug use were mistaken because

she did not realize that she had an alcohol or drug problem at

the time of the interview.

1. Criminal history.

For purposes of assessing a claim of ineffective assistance

of counsel, the court may consider whether the asserted error

prejudiced the petitioner without first finding a constitutional

deficiency in her counsel’s representation. See, e.g., United

States v. Moran, 393 F.3d 1, 11 (1st Cir. 2004). Taylor asserts

that if her corrections to the criminal history section of the

presentence report had been submitted to the probation

department, her criminal history score would have been lower,

resulting in a shorter sentence. Therefore, the court will

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3Taylor’s criminal history yielded a score of forty-five

when only a score of thirteen was necessary to reach Criminal

History Category VI. See U.S.S.G. Ch. 5, Pt. A.

17

review her corrections to see if they would have made a

difference.3

Most of Taylor’s notations point out that certain listed

offenses were consolidated for purposes of the legal proceedings

against her. The presentence report indicates the same thing. 

Therefore, those notations, if considered, would not have changed

Taylor’s criminal history score. In other places, Taylor

provides explanations for the charges against her and corrects

dates. Again, those notations, if considered, would not have

changed her criminal history score. Therefore, the record

establishes that Taylor cannot show she was prejudiced by her

counsel’s alleged failure to submit her corrections to the

presentence report to the probation department.

2. Alcohol and substance abuse.

To the extent Taylor argues that O’Leary’s representation

was constitutionally deficient because the presentence report did

not include information about alcohol and substance abuse, she

has not provided any basis for that claim. The record shows that

Taylor herself did not understand that she had any problem with

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alcohol or drug use until she underwent the screening process at

FCI Danbury. Therefore, O’Leary’s representation was not

deficient for failing to correct the presentence report on the

issue of alcohol and substance abuse, when that issue did not

arise until after Taylor began serving her sentence.

B. Restitution

Taylor also alleges that O’Leary was constitutionally

ineffective because he did not pursue her claims that the Concord

police under-reported the amount of money that was recovered from

her at the time of her arrest. She claims that she had $5150

when she was arrested rather than only $3650, which was the

amount returned to Granite Bank. The record does not indicate

whether or to what extent O’Leary investigated the discrepancy in

the amounts of money taken from Taylor. In response to Taylor’s

pro se inquiry, however, Assistant United States Attorney

Kinsella addressed the issues she raised.

As Kinsella noted, Taylor has stated repeatedly that she had

$4150, as the police report indicated, when she was arrested. 

Taylor contends that her claim of having $5000 is based upon

information in the presentence report, which notes that she

withdrew $5250 from the Granite Bank account between March 8 and

March 12 of 2004. She was not arrested until March 15. Taylor

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provides no credible basis to believe that she had $5000 in a

sealed withdrawal envelope on March 15 when she was arrested. 

The police report and her own admissions to the contrary

conclusively refute her claim.

Kinsella also inquired about the discrepancy between the

amount the arresting officer recorded as the cash taken from

Taylor, which was $4150, and the $3650 that was kept by the

Concord police for restitution to the Granite Bank. He found

that the Concord police had investigated the discrepancy and

determined that the arresting officer miscounted the money he

took from Taylor. Kinsella reported his findings to O’Leary. 

The record provides no basis to believe that if O’Leary had

investigated the discrepancy himself, he would have uncovered

something other than what Kinsella reported. Kinsella’s

investigation confirmed that $3650 was the correct amount. 

Therefore, Taylor suffered no prejudice due to O’Leary’s alleged

failure to investigate the discrepancy in the amount of money

taken from her at the time of her arrest.

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C. Summary

Because the record conclusively refutes Taylor’s allegations

made in support of her motion for § 2255 relief, no evidentiary

hearing is necessary to resolve the motion. In the absence of

any basis to find that Taylor’s counsel was constitutionally

ineffective in his representation of her, her motion must be

denied.

Conclusion

For the foregoing reasons, the plaintiff’s motion for habeas

corpus relief (document no. 1) is denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 7, 2006

cc: Aixa Maldonado-Quinones, Esquire

Patricia Taylor, pro se 

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