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AGUNLOYE v. UNITED STATES

March 31, 1998

DAVID AGUNLOYE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ALESIA

 This matter is before the court on petitioner David Agunloye's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. For the following reasons, Agunloye's motion under section 2255 is denied.

 I. BACKGROUND

 In January of 1995, a grand jury returned a five-count indictment against petitioner David Agunloye and codefendants Tony Laniyan and Ayodele Odunuga. Count I charged defendants with conspiring with each other and with others to knowingly conduct financial transactions involving property represented to be the proceeds of narcotics trafficking, with the intent to conceal and disguise the nature, location, ownership and control of those proceeds, in violation of 18 U.S.C. §§ 371 and 1956(a)(3). Counts II through V charged each defendant with knowingly conducting financial transactions involving property represented to be the proceeds of narcotics trafficking, with the intent to conceal and disguise the nature, location, ownership and control of those proceeds, in violation of 18 U.S.C. § 1956(a)(3).

 In March of 1996, the case was tried before a jury. The jury found Agunloye guilty of counts I, III, IV and V, and not guilty of count II. Apparently not pleased with his trial counsel, James Montgomery, Agunloye filed a motion for an emergency appointment of new counsel. The court appointed Federal Defender Daniel Martin to represent Agunloye at sentencing.

 II. DISCUSSION

 Agunloye attacks his conviction and sentence by contending that both his trial counsel, Montgomery, and his sentencing counsel, Martin, performed ineffectively. These arguments will be addressed in turn.

 A. Ineffective assistance of trial counsel

 Agunloye first claims that he is entitled to relief under § 2255 because he was denied his Sixth Amendment right to effective assistance of counsel at his trial. This claim raises two issues. The first is whether the claim is procedurally barred. The second is, if the claim is not procedurally barred, whether there is any merit to Agunloye's arguments.

 1. Procedural bar

 Agunloye did not raise the claim that Montgomery was ineffective on direct appeal. Thus, the first issue is whether Agunloye's claim is procedurally barred.

 Generally, a defendant who does not raise the issue of ineffective assistance of trial counsel in his direct appeal, if the basis of such claim is clear from the record, is barred from raising this otherwise appealable issue collaterally. See McCleese v. United States, 75 F.3d 1174, 1176 (7th Cir. 1996). However, a defendant is not barred from claiming ineffective assistance of counsel for the first time in collateral proceedings in limited circumstances, such as where the defendant needed additional time to develop extrinsic evidence or where trial and appellate counsel are the same. Id. at 1179.

 In this case, Agunloye had different trial and sentencing counsel and he has not presented any material extrinsic evidence in support of his claim. Thus, Agunloye is procedurally barred unless he can show both cause for his failure to raise the issue on appeal and actual prejudice from counsel's alleged errors. United States v. Frady, 456 U.S. 152, 167, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Under certain circumstances prejudice is presumed. One such circumstance is where defendant told his counsel to file an appeal and defendant's counsel failed to do so. Castellanos v. United States, 26 F.3d 717, 719-20 (7th Cir. 1994). In that case, defendant need only show that he instructed his counsel to appeal. Id. at 720.

 In this case, Agunloye contends that he told Martin specifically to file an appeal and Martin failed to do so. To support his argument, Agunloye referred to a sworn memorandum in which he claims that he "repeatedly" asked Martin to file an appeal on his behalf. See Def.'s Mem. in Supp. of 28 U.S.C. § 2255 Mot. (hereinafter "Def.'s Mem.") at 4. Conversely, Martin states in a sworn affidavit that at no time did Agunloye ever instruct Martin to file an appeal. See Gov't. Resp. Ex. A. An evidentiary hearing was held to resolve this discrepancy.

 The court finds that Agunloye never instructed Martin to appeal. In reaching this finding, the court relied on the following evidence adduced during the evidentiary hearing: (1) the testimony of the witnesses; (2) a letter from Agunloye to Martin postmarked August 22, 1996; and (3) Agunloye's failure to fire Martin.

 During the evidentiary hearing, the court had the unique opportunity to observe the demeanor of the testifying witnesses. Both Martin and Agunloye were called to testify. The court found that Martin, a thirteen-year Federal Defender, was knowledgeable and very credible in his testimony that Agunloye did not request that he appeal. Conversely, the court found Agunloye's testimony to be totally unbelievable. Agunloye testified that he met with Martin on August 13, 1996, immediately after his sentencing, and requested that Martin appeal. Tr. of § 2255 Evidentiary Hr'g, Mar. 18, 1998 (hereinafter "Tr.") at 44. Agunloye further testified that during the week following his sentencing he called Martin twice from the Metropolitan Correction Center and both times requested that Martin appeal. Tr. at 47-49. Agunloye stated that Martin "shouted" at him that he had no issues to raise on appeal. Tr. at 47. Agunloye further stated that, after his second telephone conversation with Martin, he called Martin every day, three times each day, and left messages that he wanted Martin to appeal his case. Tr. at 50-51.

 The government entered into evidence a copy of a letter that Agunloye wrote to Martin on August 21, 1996. See Gov't. Ex. 4. In this letter Agunloye thanked Martin "for the good job" that Martin had done during the sentencing hearing and thanked him for his cooperation. Agunloye testified that he wrote this letter after he had spoken twice over the phone with Martin and after he had left several voice mail messages for Martin requesting that he appeal. Tr. at ...


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