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United States v. Hagberg

United States District Court, D. Montana, Billings Division

January 7, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DUSTIN ALEC HAGBERG, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court

         This case comes before the Court on Defendant/Movant Dustin Alec Hagberg's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Hagberg is a federal prisoner proceeding pro se.

         I. Background

         On August 10, 2018, the Court issued an order explaining it was reviewing Hagberg's claims under Rule 4(b) of the Rules Governing § 2255 Proceedings. Because the claims involved only matters that were not litigated, the Court could not say Hagberg was conclusively not entitled to relief. But neither did his claims appear strong enough to warrant the appointment of counsel and formal discovery or an evidentiary hearing.

         Instead, the Court struck a middle course, requiring the United States to "take other action," Rule 4(b), § 2255 Rules, by filing an affidavit from Hagberg's counsel, see Rule 7, § 2255 Rules. See, e.g., United States v. Rodriguez-Vega, 797 F.3d 781, 791-92 (9th Cir. 2015). A protective order was also entered. See Order (Doc. 47) at 3-4 ¶¶ 4-6.

         Hagberg's counsel responded on September 5, 2018. Hagberg was given an opportunity to reply, see Order (Doc. 47) at 3 ¶ 2, but he did not do so.

         II. Proceedings in the Criminal Case

         On August 19, 2016, a grand jury indicted Hagberg on one count of possessing 50 grams or more of a substance containing methamphetamine, with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1). See Redacted Indictment (Doc. 4). Assistant Federal Defender Gillian Gosch was appointed to represent Hagberg. See Order (Doc. 11). If convicted under the indictment, Hagberg faced a mandatory minimum penalty of five years in prison and a maximum penalty of 40 years. See 21 U.S.C. § 841(b)(1)(B)(viii).

         On October 18, 2016, the parties filed a fully executed plea agreement. Hagberg agreed to plead guilty to a superseding information charging him with possessing methamphetamine with intent to distribute it. He faced no mandatory minimum penalty and a maximum penalty of 20 years. See 21 U.S.C. § 841(b)(1)(C); Plea Agreement (Doc. 21) at 2 ¶ 2. The United States agreed to dismiss the indictment and to recommend a three-level reduction for acceptance of responsibility. Both parties agreed the base offense level should be at least 26. See Plea Agreement at 2 ¶ 2, 6 ¶ 6.

         At sentencing, the Court adopted the presentence report without change. The advisory guideline range was 70 to 87 months. Hagberg was sentenced to serve 70 months in prison, concurrent with his state cases, to be followed by a three-year term of supervised release. See Judgment (Doc. 41) at 2-3; Statement of Reasons (Doc. 42) at 1 §§ I, III.

         Hagberg did not appeal. His conviction became final on March 30, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         Hagberg timely filed his § 2255 motion on March 2, 2018. See 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

         III. Claims and Analysis

         Hagberg claims that counsel was ineffective in various respects. These claims are governed by Strickland v. Washington,466 U.S. 668 (1984). At this stage of the proceedings, Hagberg must allege facts sufficient to support an inference (1) that counsel's performance fell outside the wide range of reasonable professional assistance, id. at 687-88, and (2) that there is a reasonable probability that, but ...


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