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Adedokun v. United States

United States District Court, D. Maryland

November 21, 2017

RASHEED A. ADEDOKUN Petitioner
v.
UNITED STATES OF AMERICA Respondent

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         Rasheed 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         On July 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.

         After 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.

         Adedokun 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.

         On 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.

         II. STANDARD OF LAW

         Under 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).

         However, 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 170.

         Likewise, 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 (1963).

         III. ANALYSIS

         Adedokun 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.

         A. ...


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