United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Court
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.
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
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.
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.
Proceedings in the Criminal Case
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. §
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.
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.
did not appeal. His conviction became final on March 30,
2017. See Gonzalez v. Thaler, 565 U.S. 134, 150
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).
Claims and Analysis
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 ...