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Adefumi v. United States

August 11, 2010


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Before the Court is pro se Petitioner Olu Adefumi's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Petitioner's Section 2255 motion. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).


"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); see also Echevarria v. United States, 688 F. Supp. 2d 805, 807 (N.D. Ill. 2010). "[R]elief under § 2255 is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) ("It is not easy to vacate a guilty plea in a collateral proceeding. . . . [A] defendant who knowingly and voluntarily enters a guilty plea admits not simply that he committed the acts charged in the indictment; it is an 'admission that he committed the crime charged against him.'") (quoting Young v. United States, 124 F.3d 794, 797 (7th Cir. 1997))); see also Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005).

A Section 2255 motion is not a substitute for a direct criminal appeal, nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (noting that a Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal") (citation omitted). Accordingly, if a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), that enforcing the procedural default would lead to a "fundamental miscarriage of justice," see Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006), or that there has been a change of circumstances involving facts or law. See Varela, 481 F.3d at 935-36. "[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694 (2003); see also Johnson v. United States, 604 F.3d 1016, 1018 (7th Cir. 2010).

Courts "'need not grant an evidentiary hearing in all § 2255 cases.'" Almonacid, 476 F.3d at 521 (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)). A court, rather, "should grant an evidentiary hearing on a § 2255 motion when the petitioner 'alleges facts that, if proven, would entitle him to relief.'" Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009) (quoting Hall v. United States, 371 F.3d 969, 972 (7th Cir. 2004)); see also Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008); Torzala, 545 F.3d at 525 ("[Petitioner] did not submit any affidavits in support of his motion, and the district court 'has discretion to deny an evidentiary hearing where the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004))).

Courts "'can hardly demand of a layman and pauper who draws his petition behind prison walls the skill of one trained in the law.'" Osagiede, 543 F.3d at 405 (quoting Tomkins v. Missouri, 323 U.S. 485, 487-88, 65 S.Ct. 370 (1945), and noting that "[p]ro se petitioners will, at times, confuse legal theories or draw the wrong legal implications from a set of facts"). Accordingly, courts construe pro se Section 2255 motions liberally. See McGee v. Bartow,593 F.3d 556, 565-66 (7th Cir. 2010).


On May 24, 2006, Petitioner Adefumi pleaded guilty -- without a plea agreement -- to one count of conspiring to possess and distribute crack cocaine with Francisco Periche-Guillen in violation of 21 U.S.C. § 846 (Count One) and two counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Two and Three). During his change-of-plea hearing, Petitioner admitted that he had distributed crack cocaine in Chicago, Illinois, starting in summer 2001 until at least November 2003. (R. 4-1, 5/24/06 Change of Plea Hr'g Tr. at 28.) In July 2003, Petitioner sold crack two times to a witness cooperating with the FBI. (Id. at 29.) Based on these controlled buys, along with information provided by confidential sources and cooperating witnesses, the government estimated that Petitioner had distributed over 1.5 kilograms of cocaine base in the form of crack cocaine. (Id. at 22.)

After Petitioner entered his blind guilty plea, a probation officer calculated a total offense level of 38, based on a drug quantity of 1.5 kilograms of crack cocaine, and a criminal history category of III for a Guideline range of 292 to 365 months. See U.S.S.G. § 2D1.1(a)(3), (c)(1). After conducting a sentencing hearing on October 20, 2006, the Court concluded that the government had proven -- through several witnesses and Petitioner's confession and guilty plea -- that Petitioner had distributed over 1.5 kilograms of crack. The Court also denied Petitioner's request to reduce his sentence based on the crack/powder cocaine disparity based on then-controlling circuit precedent. The Court then determined that the probation officer's Guideline calculation was correct and sentenced Petitioner to 292 months' imprisonment, which was at the low end of the Guideline range. (See 10/20/06 Sentencing Hr'g Tr. at 243-250.)

On direct appeal, Petitioner argued that he distributed a form of cocaine that did not constitute cocaine base and that he was not responsible for distributing more than 100 grams. Also, Petitioner argued that his sentence was based on the unfairness of the 100:1 ratio between crack and powder cocaine. In light of the Supreme Court's holding that sentencing courts may take the 100:1 disparity into account at sentencing, see Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), the Seventh Circuit vacated Petitioner's sentence and remanded for re-sentencing. On April 2, 2009, the Court re-sentenced Petitioner to 204 months' incarceration. Petitioner Adefumi did not directly appeal his April 2, 2009, sentence. Instead, he filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.


Petitioner Adefumi argues that he received ineffective assistance of counsel because, "[h]ad counsel discovered [information contained in Francisco Guillen's FBI Form 302] that the government ultimately relied on in sentencing the petitioner . . . , then the petitioner would have been better positioned to accept the government's initial plea offer." (R. 1, Mot. at Attach.) The 302 reflects that Mr. Guillen informed the FBI that he usually sold Petitioner "between 2.25 ounces to 4.5 ounces of crack cocaine on approximately one to two occasions per week throughout the last 1.5 to two year period." (R. 1, Ex. A, 4/6/04 F. Guillen 302 at 6.) According to Petitioner, "[h]ad counsel done the necessary investigation and discovered what the government intended to rely on as relevant conduct, [he] would have accepted the [earlier plea] offer and the outcome of the proceedings would have been different." (R. 1, Mot. at Attach.)

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. "The Amendment guarantees, among other things, the right to counsel's effectiveness in those proceedings where a right exists also to have counsel appointed or retained," including at sentencing. United States v. Parker, Nos. 09-4044 & 09-4046, -- F.3d --, 2010 WL 2652212, at *2 (7th Cir. June 16, 2010); see also Osagiede, 543 F.3d at 406 ("Ineffective assistance of counsel claims are, of course, brought to vindicate the Sixth Amendment right to counsel, since the right to counsel is the right to effective counsel." (emphasis in original)).

To establish ineffective assistance of counsel, Petitioner "must demonstrate both deficient performance and prejudice." Johnson, 604 F.3d at 1019; see also Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008). Specifically, "[t]o succeed on a claim of ineffective assistance, a prisoner must prove (1) his attorney's performance fell below an objective standard of reasonableness, and (2) he suffered prejudice as a result." Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 693, 104 S.Ct. 2052 (1984)). Courts analyze each element of this Strickland standard "in light of the totality of the circumstances, after engaging in an ...

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