United States District Court, D. Maryland
W. TITUS UNITED STATES DISTRICT JUDGE
matter arises out of a criminal case wherein the Petitioner
Sherif Akande (“Akande”) was charged in a
conspiracy related to bank fraud, identity theft, and money
laundering. ECF No. 1. Prior to trial, Akande pled guilty to
all counts. ECF No. 160. Now pending before the Court is
Akande's petition under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence in which he outlines two
arguments for ineffective assistance of counsel that he
believes are proper grounds for relief. See ECF No.
23, 2012, a federal grand jury returned an Indictment
charging Akande and five co-conspirators with various counts
related to bank fraud, identity theft, and money laundering.
ECF No. 1. On July 23, 2012, Akande pled not guilty to one
count of conspiracy to commit bank fraud in violation of 18
U.S.C. § 1349, two counts of bank fraud in violation of
18 U.S.C. § 1344, and one count of aggravated identity
theft in violation of 18 U.S.C. § 1028a. ECF No. 62.
motions hearing on September 18, 2013, the Court denied
Akande's motion to suppress evidence. See ECF
Nos. 141, 143. On February 6, 2014, Akande changed his plea
to guilty in an “open plea” (i.e. without a plea
agreement). See ECF No. 160. During his
rearraignment, the Court explained to Akande that by pleading
guilty he would waive “the right to appeal to complain
about any mistakes that might have been made before
or during trial, ” see ECF No. 169 at 11-12
(emphasis added), and Akande confirmed, under oath, that he
understood his waiver of this right and was satisfied with
his counsel's representation, see ECF No. 169 at
days later, Akande sought to withdraw his plea because he
allegedly had relied on the erroneous advice of his counsel,
Ms. Mirriam Seddiq (“Seddiq”), and had been
unaware that he could not appeal the denial of his earlier
motion to suppress evidence with a guilty plea. See
ECF No. 175. On May 27, 2014, the Court conducted a hearing
on the motion to withdraw Akande's guilty plea and
granted Seddiq's request to withdraw as counsel.
See ECF No. 243 at 18-20. Subsequently on May 30,
2014, Mr. William Mitchell (“Mitchell”) entered
his appearance as Akande's new appointed counsel. ECF No.
186. Prior to sentencing, Akande withdrew his motion for
withdrawal of his guilty plea, ECF No. 237 at 1 (maintaining
that he had misunderstood his appellate rights, but
acknowledged that he was guilty and agreed with the statement
of facts recited at his rearraignment).
November 24, 2014, the Court sentenced Akande to 199 months
imprisonment, followed by five years of supervised release.
ECF No. 250. On December 7, 2015, the Fourth Circuit affirmed
this Court's judgment. See United States v.
Akande, 624 Fed.Appx. 94 (4th Cir. 2015). On August 1,
2016, Akande filed a Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence. ECF No.
On December 16, 2016, the Government responded in opposition
to that Motion, ECF No. 300, and Akande replied in support of
his original Motion on March 16, 2017, ECF No.
§ 2255, a petitioner must prove by a preponderance of
the evidence that “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law.” 28 U.S.C. § 2255 (2012);
Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958). If the § 2255 motion, along with the files and
records of the case, “conclusively show that [he] is
entitled to no relief, ” a hearing on the motion is
unnecessary and the claims raised in the motion may be
dismissed summarily. Id. Akande presents two
arguments for ineffective assistance of counsel-one with
regard to Seddiq's advice to plead guilty and one with
regard to Mitchell in his subsequent handling of Akande's
guilty plea and sentencing. See ECF No. 293 at 5, 7.
The Court finds that these arguments have no legal basis.
examine claims of ineffective assistance of counsel under the
two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Under the
performance prong, a defendant must show that counsel's
performance was deficient. Id. “Judicial
scrutiny of counsel's performance must be highly
deferential.” Id. at 689; see United
States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). The
alleged deficient performance must be objectively
unreasonable and “requires showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 689. The
Court must evaluate the conduct at issue from counsel's
perspective at the time, and must “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. Under the prejudice prong, a defendant must show
that the deficient performance prejudiced the defense, and
but for counsel's unprofessional errors, there is a
reasonable probability that the result of the proceeding
would have been different. Id. at 687, 694. Unless a
defendant makes both showings, the Court cannot find that the
conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Id. at
669. Finally, “there is no reason for a court deciding
an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on
one.” Id. at 697.
Akande's claim of ineffective assistance against Seddiq
fails because he cannot establish prejudice.
alleges that his attorney, Seddiq, was ineffective because
she misadvised “that an open plea was the only way to
preserve the right to appeal the Court's denial of his
motion to suppress.” See ECF No. 293 at 5.
Akande maintains that he would not have pled guilty had he
known that he was waiving his right to appeal the denial of
his pre-trial motion. See Id. However, Akande's
contention is undercut by the record. The Court, during the
Rule 11 colloquy, properly informed Akande that he would be
waiving his right to appeal all pretrial matters.
See ECF No. 169 at 11-12. And Akande confirmed, on
the record, that he understood that he was waiving this
right. See Id. However, even if Akande had
detrimentally relied on counsel's erroneous advice, he
cannot demonstrate prejudice as it relates to his guilty
identifies an earlier plea offer by the Government for eight
years of imprisonment-an amount substantially lower than the
sentence he received. See ECF No. 293 at 5. However,
in order to “show prejudice from ineffective assistance
of counsel where a plea offer has . . . been rejected because
of counsel's deficient performance, defendants must
demonstrate a reasonable probability that they would have
accepted the earlier plea offer had they been afforded
effective assistance of counsel.” Missouri v.
Frye, 566 U.S. 133, 147 (2012) (“Defendants must
also demonstrate a reasonable probability the plea would have
been entered without the prosecution canceling it or the
trial court refusing to accept it.”). Akande presents
no evidence that the alleged plea agreement was ever actually
offered. Indeed, even if the Government had extended such an
offer, by Akande's own account, the offer was made
prior to the hearing in which the Court denied
Akande's motion to suppress. See Id. Therefore,
Akande does not and cannot prove that the Government would
have preserved such an offer especially after it had
prevailed on all contested evidentiary matters.
Akande cannot prove that this Court would have accepted such
a sentence. As the Fourth Circuit noted, this Court
thoroughly examined the 18 U.S.C. § 3553(a) sentencing
factors and “explicitly stated on the record that it
would have given Akande a 199-month sentence even if it had
calculated his Guidelines range differently.” See
United States v. Akande, 624 Fed.Appx. 94, 95 (4th Cir.
2015). Simply put, in light of Akande's vast criminal