United States District Court, D. Idaho
SALLY R. HANSEN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge.
before the Court is Petitioner's Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255
(Civ. Dkt. 1) and (Crim. Dkt. 37). The motion is fully
briefed. Having reviewed the filings in this matter, the
Court will deny Petitioner's Motion without a hearing.
January 6, 2015, a Criminal Information was filed in this
Court, charging Petitioner with fifteen counts of wire fraud,
in violation of 18 U.S.C. § 1343, stemming from a scheme
to embezzle from the City of Athol. Information,
Crim. Dkt. 1. A signed plea agreement was filed with the
Court on January 9, 2015. Plea Agreement, Crim. Dkt.
4. Section I, Paragraph A of the plea agreement stated the
Petitioner agreed to plead guilty to Count One of the
Information, but later sections of the agreement referenced
additional charges. Id. On January 21, Petitioner
signed an amended plea agreement, agreeing to plead guilty to
all fifteen counts in the Information. Am. Plea
Agreement, Crim. Dkt. 8. The Government contends that
the first plea agreement contained numerous typos, and that
the second plea agreement corrected those typos and
accurately reflected the pre-charging agreement of the
parties that Petitioner would plead to the Information, and
not to specific counts. Gov.'s Br. at 6, Civ.
Dkt. 7; see also Gov.'s Br. Ex. 1, Civ. Dkt.
7-1. Petitioner disputes that the first plea agreement was
the result of a typo, and alleges that the second plea
agreement offered because the government learned that her
counsel lacked experience in federal criminal cases.
Petition at 5, Civ. Dkt. 1-1, Crim Dkt 37-1.
petitioner was sentenced on June 9, 2015. Judgment
at 2, Crim. Dkt. 32. Petitioner was committed to the custody
of the United States Bureau of Prisons for a term of 48
months, and ordered to pay restitution in the amount of $434,
112 to the City of Athol. Id. at 5. At sentencing,
four employees of the City of Athol gave victim statements as
to the effect of petitioner's actions. The petitioner did
not appeal her sentence or conviction. The instant motion was
timely filed on April 25, 2016, and is the petitioner's
first motion under § 2255. See Petition, Civ.
Dkt. 1 and Crim. Dkt. 37.
argues that she was denied the effective assistance of
counsel, and offers four grounds in support of her motion.
First, she argues that her counsel was ineffective when he
advised her to sign the amended plea agreement, and agree to
plead guilty to all counts charged in the Information.
Id. at 4. Second, she argues that her counsel was
ineffective for failing to object to an enhancement under
§ 2B1.1 of the United States Sentencing Guidelines for
the use of “sophisticated means” in conducting
the embezzlement scheme. Third, she argues that her counsel
was ineffective for failing to object to the inclusion of 18,
989.00 in forensic accounting fees in her order for
restitution. Finally, Petitioner argues that her counsel was
ineffective for failing to argue for a downward departure
under § 5K2.0 of the Sentencing Guidelines, and for
failing to object to the victim statements offered by
employees of the city of Athol.
28 U.S.C. § 2255
28 U.S.C. § 2255 provides four grounds under which a
federal court may grant relief to a federal prisoner who
challenges the imposition or length of her or her
incarceration: (1) “that the sentence was imposed in
violation of the Constitution or laws of the United
States;” (2) “that the court was without
jurisdiction to impose such sentence;” (3) “that
the sentence was in excess of the maximum authorized by
law;” and (4) that the sentence is otherwise
“subject to collateral attack.” 28 U.S.C. §
4(b) of the Rules Governing Section 2255 Proceedings provides
that a federal district court judge must dismiss a §
2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.”
“Under this standard, a district court may summarily
dismiss a § 2255 motion only if the allegations in the
motion, when viewed against the record, do not give rise to a
claim for relief or are ‘palpably incredible or
patently frivolous.'” United States v.
Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011)
Court need not hold an evidentiary hearing if the issues can
be conclusively decided on the basis of the evidence in the
record. See Frazer v. United States, 18 F.3d 778,
781 (9th Cir. 1994). In determining whether a § 2255
motion requires a hearing, “[t]he standard essentially
is whether the movant has made specific factual allegations
that, if true, state a claim on which relief could be
granted.” Withers, 638 F.3d at 1062.
Ineffective Assistance of Counsel
well-established two-prong test for evaluating ineffective
assistance of counsel claims is deficient performance and
resulting prejudice. See Strickland v. Washington,
466 U.S. 668 (1984). Mere conclusory allegations are
insufficient to state a claim of ineffective assistance ...