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UNITED STATES v. OBOH

March 6, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
SUNDAY OBOH, Defendant.



The opinion of the court was delivered by: JAMES H. ALESIA

 Before the court is defendant Sunday Oboh's second Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255.

 I. BACKGROUND

 On April 15, 1994, defendant Sunday Oboh, pursuant to a written plea agreement, entered a plea of guilty to Count I of the indictment, charging him with knowingly and intentionally possessing with intent to distribute approximately 200 grams of mixtures containing heroin. Under the plea agreement, defendant agreed to cooperate with the government. (Plea Agreement P 12.) In return, the government promised to move for a downward departure pursuant to United States Sentencing Guideline § 5K1.1 and 18 U.S.C. § 3553(e) to an agreed sentence of incarceration of 80 percent of the low end of the applicable sentencing guideline range, or of the applicable mandatory minimum sentence, 21 U.S.C. § 841, whichever was higher. (Plea Agreement P 15.) On August 26, 1994, the court sentenced defendant to 48 months incarceration and 5 years of supervised release.

 On September 8, 1994, defendant filed his first 28 U.S.C. § 2255 motion. The court denied his motion based on both procedural default (failure to appeal) and the merits. Defendant now brings his second Section 2255 motion ("Motion"), presenting essentially two arguments. Defendant argues he should be granted relief (1) under recently enacted 28 U.S.C. § 3553(f), providing for a limitation on the applicability of statutory minimums in certain cases, and (2) because of ineffective assistance of counsel traced to broken promises and advice with which he is unsatisfied.

 II. DISCUSSION

 A. Procedural Default

 It is an abuse of the writ for a petitioner to raise a ground for Section 2255 relief in a second petition that he could have raised in his first, regardless of whether a failure to raise it in the prior Section 2255 motion stemmed from a deliberate choice. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). When a prisoner files a second motion, "the government bears the burden of pleading abuse of the writ." Id. at 494, 111 S. Ct. at 1470. To excuse the petitioner's failure to raise the claim earlier, he must show cause for and prejudice from his failure to raise the claim. Id. A failure to provide a showing of cause or prejudice will result in a denial of the motion as an abuse of the writ.

 Defendant Oboh has not shown either cause for or prejudice from his failure to previously raise the two arguments. Defendant's explanation for his failure to present his current arguments is that he did not think it was necessary to present them. (Motion at 6.) His argument of ineffective assistance of counsel could have been raised earlier, and he has not shown cause for or prejudice from that failure.

 Regarding Section 3553(f), Section 80001(c) of the enacting legislation states that it would apply to sentences imposed 10 days after the date of enactment (September 13, 1994). The defendant, who was sentenced on August 26, 1994, therefore is not prejudiced from his failure to raise this argument previously, since it is a nonstarter.

 Defendant's failures constitute an abuse of the writ, and he is barred from bringing these arguments in this subsequent motion.

 B. Merits

 1. Section 3553(f)

 Under Section 3553(f), defendant believes he should not be subjected to the mandatory minimum sentence. Regardless of any other reason, defendant does not even qualify for the exception to the statutory mandatory minimum. One of the requirements for the exception is that the defendant not have more than one criminal history point as calculated under the sentencing guidelines. Sunday Oboh had more than one criminal history point. (See Statement of Reasons for Imposing Sentence ...


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