United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
NANCY J. ROSENSTENGEL, District Judge.
This matter is before the Court on Petitioner Adebisi Tafike Adigun's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (hereinafter § 2255) (Doc. 1). As ordered by this Court, the United States filed a response (Doc. 17), and Adigun filed two successive replies (Docs. 25 and 29). Additionally, Adigun filed a Motion to File on the Court's Fast Track Docket (Doc. 36), Motion to Expedite (Doc. 37), Notice of Inquiry and Motion to Receive Content (Doc. 38), Motion to Sever (Doc. 39), Motion for Status Report (Doc. 40), and Motion for Fast Track Partial Summary Judgment (Doc. 41). For the reasons set forth below, Adigun's § 2255 motion is denied, and his remaining motions (Docs. 36, 37, 38, 39, 40, and 41) are denied as moot.
The events giving rise to Adigun's underlying criminal case began on March 16, 2010, when Adigun was observed by a police officer sitting in a van with an open container of beer on the vehicle's console (CR 176). When the officer asked Adigun to pour the beer out, he saw him drop a plastic bag out of the passenger side window ( Id. ). When the officer inquired about the bag, Adigun responded, "Well, that's my girlfriend's. She likes to smoke crack." ( Id. at 3). Adigun was then placed under arrest.
The next month, on April 7, 2010, Adigun was stopped for driving a vehicle with an expired license plate (CR 176). He was driving to Chicago along with his girlfriend, Jessica Marczewski ( Id. ). The arresting officer claimed to have seen beer bottles missing from a six pack in the vehicle and suspected the two might be intoxicated ( Id. ). After being escorted to the patrol car, Adigun allegedly gave the officer consent to search the vehicle ( Id. ). Adigun denies any consent. During the search, the officer discovered crack cocaine lodged beneath a booster seat, and Adigun and Marczewski were both arrested ( Id. ).
On August 3, 2010, Adigun was charged in a Superseding Indictment with one count of conspiracy to distribute and two counts of possession with intent to distribute crack and powder cocaine (CR 34). Marczewski was charged with aiding and abetting Adigun on the conspiracy to distribute count and one of the possession counts ( Id. ). Adigun retained attorneys N. Scott Rosenblum, Adam Fein, and Marc Johnson from the law firm of Rosenblum, Schwartz, Rogers & Glass, PC to represent him.
Marczewski quickly pleaded guilty, and she entered into a cooperating agreement with the Government and provided law enforcement with information about Adigun's drug dealings (and her own) (CR 51, 52). She said that on the day before her arrest, she witnessed Adigun wire $4, 000.00 via Western Union for the purpose of purchasing cocaine (CR 52). Afterwards they traveled together to Chicago and retrieved the cocaine ( Id. ). Adigun and Marczewski were eventually arrested on the return trip ( Id. ). She also provided information about hand-to-hand drug deliveries she made for Adigun and firearms inside the house she shared with Adigun ( Id. ).
Adigun moved to suppress the evidence seized during the two arrests (CR 64), and he was successful as to the April 7 arrest with Marczewski (CR 79). Now retired District Judge G. Patrick Murphy granted the motion to suppress, reasoning that the Government did not meet its burden of proof to establish that Adigun consented to the search of the vehicle (CR 79-80). Shortly before the trial was set to begin, the Government asked the Court to reconsider its ruling based on a new theory that Adigun did not have standing to challenge the search because he was driving a borrowed car and had no legitimate expectation of privacy (CR 97). Following a hearing on the matter, Judge Murphy agreed that Adigun failed to satisfy his burden of showing that he had an expectation of privacy, and he overturned the previous order suppressing the seizure, allowing all of the evidence to come in against Adigun ( see CR 165).
Adigun's attorney then asked the Court to reconsider yet again (CR 103), and Judge Murphy allowed the attorney to make an offer of proof regarding Adigun's expectation of privacy ( see CR 167). Adigun took the stand and answered a litany of questions from his attorney and the Government ( see id. ). Judge Murphy found that there was nothing that suggested Adigun was given permission to take the car to Chicago ( Id. at p. 44), and therefore he did not have an expectation of privacy. Judge Murphy went on to comment about Adigun's credibility. He stated, "I don't believe one word that this defendant tells me. I don't think he has any credibility... I don't believe one single word that he told me. He makes up his testimony as he goes along. He is a - he is a facile, if not an accomplished, liar. He lies easily and quickly and often, but he's not very good [at] it." ( Id. at p. 46). Consequently, Judge Murphy stood by his ruling that all of the evidence would come in against Adigun ( Id. ).
On the morning of trial, Adigun asked for a continuance and a new lawyer (CR 176). He was dissatisfied with his counsel's outlook following the reversal of previously suppressed evidence ( Id. ). He stated, "I just don't think that my counsel is ready at this time, and... his perspective on appeal to the output of the trial, I don't think, is in my best interest." ( Id. at 5). Adigun's lawyers advised that they were in fact ready to try the case ( Id. ). Judge Murphy denied the continuance and request for a new lawyer and gave Adigun some time to decide whether he wished to proceed with trial ( Id. ). After speaking with his sister, Adigun elected to plead open, without a plea agreement ( Id. ).
At sentencing, Judge Murphy sustained a number of Adigun's objections to the PSR and adopted his calculation of drug quantity over that offered by the probation office (CR 176). But Judge Murphy overruled Adigun's objection to the two-level enhancement for possession of a dangerous weapon during the commission of a drug trafficking offense (CR 164, pp. 130-32). Judge Murphy determined the guideline range to be 151-188 months' imprisonment, with a mandatory minimum sentence of 120 months. Finding that Adigun was "dishonest, " "manipulative, " and "very dangerous", he was sentenced to a low end guideline sentence of 151 months' imprisonment.
Adigun filed a timely appeal arguing that the district court erred by failing to suppress contraband seized from his vehicle and by incorrectly calculating a mandatory minimum ten year sentence (CR 176). The Seventh Circuit Court of Appeals denied the appeal on both points, finding first that an unconditional guilty plea precluded a challenge to the denial of a motion to suppress, and second that the error in calculating his mandatory minimum was harmless because his sentence was not affected by the error ( Id. ).
Adigun filed his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on December 12, 2013 (Doc. 1). In his petition, Adigun made the following claims:
I. Counsel was ineffective for failing to advise him that he waived his right to appeal pretrial motions by pleading guilty.
II. Adigun's guilty plea was defective, rendering his guilty plea unknowing and involuntary.
III. Counsel was ineffective because they failed to raise the issue that the Government forfeited the standing issue by not addressing it or before the original suppression hearing.
IV. Counsel was ineffective for failing to raise the argument during the suppression hearing that the driver of a vehicle has a presumptive right to drive the vehicle.
V. Counsel was ineffective for failing to investigate and present evidence that he had permission to use Tracy Borah's vehicle on April 7, 2010.
VI. Counsel was ineffective for failing to investigate and present counter evidence that he had not possessed a firearm in furtherance of a drug trafficking crime.
I. Evidentiary Hearing
A 28 U.S.C. § 2255 motion does not mandate an evidentiary hearing. Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996); see also Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001). "[A] district court must grant an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle him to relief." Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006) (emphasis in original) (internal quotations omitted). But if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, " a hearing is not required. Id. Allegations that are "vague, conclusory, or palpably incredible rather than detailed and specific" do not warrant a hearing. Bruce, 256 F.3d at 597. Likewise, "mere speculation" does not warrant an evidentiary hearing, as the petitioner "must file [a] detailed and specific affidavit showing he has actual proof of allegations he is making." Miller v. United States, 183 Fed.Appx. 571, 578 (7th Cir. 2006). For evidentiary hearing consideration, the Seventh Circuit requires a petition made pursuant to 28 U.S.C. § 2255 to "include an affidavit setting forth the specific basis for relief." Kafo, 467 F.3d at 1067. An affidavit accompanying the ...