Hageman v. USA
Filing
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ORDER AND MEMORANDUM DECISION denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255) - CASE CLOSED. Signed by Judge Tena Campbell on 7/31/14 (alt)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
COLENE HAGEMAN,
Petitioner,
ORDER AND
MEMORANDUM DECISION
vs.
UNITED STATES OF AMERICA,
Case No. 2:13-CV-641-TC
Respondent.
Petitioner Colene Hageman pled guilty to possession of methamphetamine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1). The court sentenced Ms. Hageman to seventy
months in custody. Ms. Hageman filed this petition under 28 U.S.C. § 2255, seeking to correct her
sentence.
Ms. Hageman, proceeding pro se, asserts two arguments in support of her contention that
she received ineffective assistance of counsel. Her first argument is that her attorney failed to watch
the videotape of the traffic stop. The second argument is that her attorney was ineffective when he
failed to accompany her to the presentencing report interview.
The court recognizes that pro se litigants’ pleadings should be construed more liberally than
if a licensed attorney had drafted them. Haines v. Kerner, 404 U.S. 519, 520 (1972); Whitney v.
New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997). Applying this more lenient standard, the
court has carefully considered the relevant pleadings and the entire record and concludes that Ms.
Hageman has failed to meet her burden of establishing that her attorney was ineffective.
Accordingly, the court DENIES Ms. Hageman’s petition.
BACKGROUND
On March 8, 2011, Ms. Hageman was pulled over for speeding on Interstate 70 in Emery
County. After an investigation and a recovery of methamphetamine by Sergeant Steve Salas of the
Utah Highway Patrol (UHP), both Ms. Hageman and her passenger, Brenda Seybels, were arrested.
A grand jury for the District of Utah returned an indictment against Ms. Hageman and Ms. Seybels.
Attorney Joseph Jardine defended Ms. Hageman. A motion to suppress evidence in the case
was filed and a hearing was held on May 18, 2011. In preparation for the evidentiary hearing, Mr.
Jardine claims he reviewed the discovery provided by the government including the videotape of
the traffic stop. (Dkt. No. 5-1 at ¶ 4). After the hearing, Mr. Jardine filed a memorandum in
support of the motion to suppress and argued in front of the court on the motion. The court denied
the motion and Ms. Hageman decided to accept the plea offer from the government.
Ms. Hageman violated her pretrial release and on August 9, 2011, she appeared before
Magistrate Judge Brooke Wells and admitted to two allegations in the violation petition. Ms.
Hageman’s release was revoked and she was ordered into custody.
On December 6, 2011, Ms. Hageman appeared before Magistrate Judge David Nuffer and
entered her plea of guilty. A condition of the plea agreement was a complete acceptance of
responsibility by Ms. Hageman.
A presentencing report (PSR) was prepared by a probation officer before the sentencing of
Ms. Hageman. Part of the report required the probation officer to conduct an interview with Ms.
Hageman. Mr. Jardine was not present with Ms. Hageman at the interview and in the words of Ms.
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Hageman, the interview “did not go well.” (Dkt. No. 1 at 5). During the interview, Ms. Hageman
denied knowing that the drugs were in the car, but did tell the probation officer that she would
admit to knowledge of the drugs if it would help her.
The PSR did not credit Ms. Hageman with a reduction for acceptance of responsibility and it
calculated a sentencing range of 235 to 293 months, based on a criminal history category I, and
base, adjusted and total offense levels of 38. Objections to the PSR were required to be filed by
February 2, 2012. Mr. Jardine withdrew from the case on February 8, 2012, without filing an
objection to the PSR. Parker Douglas of the Federal Defender Office was appointed on February
23, 2012.
On June 20, 2012, Mr. Douglas filed a sentencing memorandum, incorporating an objection
to the PSR, arguing that Mr. Jardine’s absence from the PSR interview and his failure to object to
the PSR before the deadline should be taken into account by the court as a failure of adequate
representation and Ms. Hageman’s PSR should be amended. Mr. Douglas argued that the PSR
report should give Ms. Hageman credit for acceptance of responsibility and the safety valve
provision of § 5C1.2 should apply to Ms. Hageman. Because of this, Mr. Douglas contended that
the PSR report erroneously calculated the guideline sentence range and that the correct range should
be between 48 and 72 months.
On June 27, 2012, an amended PSR was issued, giving Ms. Hageman credit for acceptance
of responsibility and applying the safety valve provision of § 5C1.2. The amended PSR calculated
a base offense level of 27, based on a criminal history category I, and recommended a sentence
range of 70-87 months. Ms. Hageman was sentenced to 70 months in prison with credit for time
served.
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ANALYSIS
To demonstrate ineffective assistance of counsel, “a petitioner must establish both that his
attorney’s representation was deficient and that he was prejudiced by that deficiency.” James v.
Gibson, 211 F.3d 543, 555 (10th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). The standard applies to sentencing proceedings and plea hearings as well as at trial. See
United States v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). There is a strong presumption that
counsel provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome
that presumption. James, 211 F.3d at 555.
To establish prejudice under Strickland, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. But “a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.” Id. at 697.
I.
Videotape
Ms. Hageman argues that her counsel provided ineffective assistance when he failed to
review the videotape of the traffic stop which ultimately led to discovery of the drugs in the car Ms.
Hageman was driving. Ms. Hageman contends that had her attorney viewed the videotape, he
would have seen that she slammed on her brakes when she went from a speed limit area of 70 mph
to 60 mph. And because of this she would not have been speeding and she should not have been
pulled over. Ms. Hageman also contends that had her attorney viewed this evidence, he would have
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been more fully prepared for the evidential hearing and the drugs discovered in the car would have
been suppressed.
At the evidentiary hearing, Sergeant Salas testified that he had observed a white passenger
car traveling eastbound on I-70 that appeared to be speeding. He turned on his radar and clocked
the car’s speed at 70 mph in a 60mph zone.1 He activated his emergency lights and the video
recorder in his car began to record.2 The videotape of the traffic stop was introduced at the
evidentiary hearing and the court reviewed the video before making a ruling to deny the motion
to suppress. Ms. Hageman does not challenge Sergeant Salas’ testimony regarding her speed on
the radar which was the basis for the traffic stop. Accordingly, the record does not reflect and
Ms. Hageman fails to demonstrate that she was prejudiced by the failure of her counsel to review
the videotape of the traffic stop.3 Because the court finds no prejudice, there is no need to
evaluate Mr. Jardine’s performance.
II.
Presentencing Interview
Ms. Hageman argues that her counsel provided ineffective assistance when he failed to
attend the presentencing interview with her and the probation officer. Ms. Hageman contends
that because she was not accompanied by her attorney and not given proper instructions on how
He also believed the window tinting of the front driver’s side window was darker than
Utah law allowed.
1
The videotape of the traffic stop begins 30 seconds before the emergency lights are
activated. The car recording system is programed to begin a recording when the lights are
activated, but it includes 30 seconds previous to any emergency light activation.
2
Mr. Jardine claims that he reviewed the videotape before the evidentiary hearing and Ms.
Hageman has presented no evidence to the court of the contrary.
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to handle the interview, things went bad, and she was given an additional 34 months on her
sentence compared to her co-defendant, who was given only 36 months for pleading to the same
charge.
Though Mr. Jardine did not accompany Ms. Hageman to the presentencing interview, any
prejudice that may have been attributed to his absence was rectified by Ms. Hageman’s new
attorney, Mr. Douglas. Mr. Douglas’ memorandum to the court requested an amendment to the
PSR to give Ms. Hageman credit for acceptance of responsibility and calculation of the safety
valve. The PSR was amended accordingly and during the sentencing of Ms. Hageman, the
government, the probation office, and the court all agreed that Ms. Hageman had taken full
responsibility for her actions. The court took into account the pretrial release violations of Ms.
Hageman, the vigorous advocacy of her new attorney, and sentenced her to the low end of the
sentencing guideline recommendation. Ms. Hageman was sentenced to 70 months in prison with
credit for time served. Ms. Hageman fails to demonstrate that she was prejudiced by the absence
of her counsel at the presentencing interview and the court need not evaluate Mr. Jardine’s
performance.
CONCLUSION
Accordingly, the court DENIES Ms. Hageman’s Motion to Correct Sentence (Dkt. No. 1).
DATED this 31st day of July, 2014.
BY THE COURT:
TENA CAMPBELL
United States District Judge
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