United States District Court, D. Maryland
RASHEED A. ADEDOKUN Petitioner
UNITED STATES OF AMERICA Respondent
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
Adedokun, pro se, has filed a Motion to Vacate his
sentence pursuant to 28 U.S.C. § 2255 (ECF No. 189) and
a Motion for Appointment of Counsel (ECF No. 198). The Court
has considered the Motions and the Government's
Opposition. For the reasons that follow, the Court
DENIES both Motions.
FACTUAL AND PROCEDURAL BACKGROUND
October 1, 2014, a Superseding Indictment charged Adedokun
with: (1) conspiracy to commit access device fraud; (2) use
of unauthorized access devices; (3) aggravated identity
theft; (4) possession of counterfeit access devices; and (5)
possession of device-making equipment. ECF No. 32.
9, 2015, in response to Adedokun's counsel's Motion
to Withdraw as Counsel, the Court struck the appearance of
the Office of the Federal Public Defender and appointed Marc
Gregory Hall, Esquire, as substitute counsel. ECF No. 96.
Subsequently, the Government offered Adedokun a plea
agreement which, by its terms, would be revoked if not
accepted by November 12, 2015. ECF No. 145. On the advice of
counsel, Adedokun accepted the offer and, on November 13,
2015, he pled guilty to counts two, three, and five of the
Superseding Indictment. ECF Nos. 145, 176. However, due to a
paperwork glitch, Adedokun's and Hall's signatures
were missing from the Court's copy of the agreement. The
Court, however, confirmed both Adedokun and his counsel had
“seen [the plea agreement] before today” and
“were just sort of filling it out today having read and
considered it previously” before asking both of them to
sign the agreement again. ECF No. 176 at 6-7.
accepting the plea, the Court held a sentencing hearing on
February 3, 2016. Relying on the Pre-Sentence Report (PSR),
the Court determined Adedokun's total offense level to be
16 and his criminal history category to be III. The offense
level included a two-level enhancement because “the
offense involved the possession or use of device-making
equipment.” ECF No. 149. As a result, the Court
sentenced Adedokun to a total term of 54 months'
imprisonment, followed by four years of supervised release,
and imposed $107, 403.61 in restitution. ECF No. 155.
filed a timely notice of appeal, which the Fourth Circuit
dismissed on October 13, 2016, since he had waived his right
to appeal as part of his plea agreement. ECF Nos. 157, 186.
Adedokun did not file a writ of certiorari with the United
States Supreme Court. ECF No. 189.
November 21, 2016, he filed the present Motion to Vacate. ECF
No. 189. The Government filed an Opposition on January 30,
2017, and Adedokun replied on February 27, 2017. ECF Nos.
192-93. Adedokun subsequently filed a Motion for Appointment
of Counsel on August 21, 2017. ECF No. 198.
STANDARD OF LAW
28 U.S.C. § 2255, a prisoner in federal custody may file
a motion challenging the legality of a federal sentence on
one or more of the following grounds: (1) the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the sentencing court lacked jurisdiction;
(3) the sentence exceeded the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
See 28 U.S.C. § 2255(a).
post-conviction collateral attack is not a substitute for
direct appeal. Before the Court can reach the merits, the
movant must overcome certain procedural hurdles. One such
hurdle is the procedural default rule. See Massaro v.
United States, 538 U.S. 500, 504 (2003); United
States v. Frady, 456 U.S. 152, 168-70 (1982). A claim
which could have been but was not raised on a
petitioner's direct appeal may not be raised in a §
2255 motion unless there is demonstrable cause for the
petitioner's failure to raise the claim in that appeal,
and actual prejudice is shown to have resulted from the
alleged error. Frady, 456 U.S. at 168-70. “The
existence of cause for a procedural default must turn on
something external to the defense, such as the novelty of the
claim or a denial of effective assistance of counsel.”
United States v. Mikalajunas, 186 F.3d 490, 493 (4th
Cir. 1999). The standard for prejudice is that the alleged
error that led to the issue not being brought on appeal
worked to the petitioner's “actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” Frady, 456 U.S. at
a petitioner cannot re-raise arguments in a habeas petition
that were already raised on direct appeal. Withrow v.
Williams, 507 U.S. 680, 721 (1993) (Scalia, J.,
concurring), United States v. Linder, 522 F.3d 391,
396-97 (4th Cir. 2009). Furthermore, a petitioner may not
raise successive claims in a § 2255 Motion to Vacate by
asserting different legal theories in support of the same
objection. Sanders v. U.S., 373 U.S. 1, 15-16
makes four claims in support of his Motion to Vacate: (1) his
Sixth Amendment right to counsel was violated; (2) his plea
agreement was invalid; (3) the Court erred in imposing a
two-level sentence enhancement; and (4) the Court erred in
including the Virginia conviction in his criminal history
score. ECF No. 189. The Court considers each claim in turn.