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Usa v. Moshoodi Emiola Ajijola

December 8, 2010


Name of Assigned Judge Samuel Der-Yeghiayan Sitting Judge if Other or Magistrate Judge than Assigned Judge




For the reasons stated below, the relief sought pursuant to Section 2255 is an extraordinary remedy and Defendant has not shown that the instant motion should be granted. Based upon the foregoing, and the record before us, Defendant is not entitled to the relief sought in the instant motion, and therefore we dismiss the instant action and direct the Clerk of Court to notify Defendant of this dismissal. All pending motions are hereby stricken as moot. Civil case terminated.

O[ For further details see text below.] Docketing to mail notices.


This matter is before the court on Moshoodi Emiola Ajijola's (Ajijola) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Section 2255). Ajijola was tried before a jury in case number 06 CR 682 and was found guilty on both Counts on which he was tried. Ajijola appealed his conviction and on October 21, 2009, his conviction was affirmed by the Seventh Circuit (No. 08-3186). Ajijola now moves to have his sentence vacated pursuant to Section 2255.

Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. The relief sought in a Section 2255 Motion "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). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Id.

In the instant motion, Ajijola argues that the court erred in failing to appoint a substitute counsel and that his trial and appellate counsel were ineffective. Ajijola argues that he had irreconcilable differences and lack of communication with his trial counsel and that there were general conflicts between Ajijola and his trial counsel. Ajijola contends that the court should have granted his request for substitute counsel.

Ajijola also argues that his trial counsel was ineffective, because, according to Ajijola his trial counsel: (1) failed to obtain a speedy trial over Ajijola's objection, (2) failed to present certain exculpatory testimony, (3) failed to adequately provide Ajijola with discovery or allow Ajijola to adequately participate in his defense and confront adverse witnesses, (4) forbid Ajijola from testifying in his own defense, and (5) improperly permitted post-arrest statements to be introduced at trial. Finally, Ajijola contends that his appellate counsel was ineffective for permitting the introduction of certain transcripts during the appellate proceedings.

I. Speedy Trial

Ajijola argues that his trial counsel was ineffective because, according to Ajijola, over his objection, he was denied a speedy trial. Under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., "a federal criminal defendant [must] be brought to trial within 70 days of the filing of the indictment." United States v. Gearhart, 576 F.3d 459, 462 (7th Cir. 2009). A plaintiff can also bring a constitutional-based claim that is premised on the denial of a speedy trial. Id. (indicating that the court should consider: "(1) whether the delay was uncommonly long, (2) whether the government or the defendant is more to blame for the delay, (3) whether the defendant asserted his right to a speedy trial in due course, and (4) whether the defendant suffered prejudice as a result of the delay").

In the instant action, the record indicates that the court and Ajijola's trial counsel made every effort to expedite the scheduling of Ajijola's trial and that any delay in the start of the trial was due, in part, to Ajijola's own actions. Ajijola was originally indicted on November 7, 2006, and he was appointed counsel. On May 2, 2007, Ajijola's first appointed counsel was permitted to withdraw due to a potential conflict, and we appointed Ajijola new counsel. The trial date was originally set for May 9, 2007, but was reset at the requests of Ajijola's co-Defendants, who the court was obligated to give equal consideration to in setting the date for a joint trial.

On November 15, 2007, this court denied Ajijola's request that his counsel withdraw. Ajijola had expressed a desire to have his counsel substituted with a retained counsel, indicating that his family would retain counsel for him. Based upon Ajijola's repeated requests that his trial commence as soon as possible, the court advised Ajijola that if Ajijola retained counsel and his counsel filed an appearance and indicated to the court that counsel would be ready to go to trial as scheduled on January 28, 2008, the court would entertain such a request. Ajijola never retained counsel. ...

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