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Hansen v. United States

United States District Court, D. Idaho

July 30, 2018

SALLY R. HANSEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, Chief U.S. District Court Judge.

         INTRODUCTION

         Pending 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.

         BACKGROUND

         On 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.

         The 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.

         Petitioner 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.

         LEGAL STANDARD

         1. 28 U.S.C. § 2255

         Title 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. § 2255(a).

         Rule 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) (citation omitted).

         The 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.

         2. Ineffective Assistance of Counsel

         The 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 ...


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