James O. Ademiju v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2588
J AMES O. A DEMIJU,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-5583 — Robert W. Gettleman, Judge.
____________________
A RGUED MARCH 30, 2021 — D ECIDED J UNE 2, 2021
____________________
Before KANNE, B RENNAN, and SCUDDER , Circuit Judges.
KANNE, Circuit Judge. James Ademiju, a Nigerian citizen,
seeks to vacate his conviction for healthcare fraud. He con-
cedes that he filed his motion outside the one-year limitations
period but argues that the statute of limitations should be eq-
uitably tolled due to various extenuating circumstances. We
conclude that Ademiju has not met the high standard for eq-
uitable tolling, and we therefore affirm the district court.

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2 No. 19-2588
I. BACKGROUND
James Ademiju immigrated to the United States in 2001
and resided here for many years on a green card. In 2011, he
became involved in a scheme to defraud Medicare of millions.
The government eventually caught on, and, in September
2015, a grand jury indicted Ademiju on seven counts.
Ademiju pled guilty to one count of healthcare fraud, 18
U.S.C. § 1347, and stipulated to a loss amount of $1.5 million.
The plea agreement stated that “Defendant recognizes that
pleading guilty may have consequences with respect to his
immigration status”; that he “understands that no one, in-
cluding his attorney or the Court, can predict to a certainty
the effect of his conviction on his immigration status”; and
that he “nevertheless affirms that he wants to plead guilty re-
gardless of any immigration consequences that his guilty plea
may entail, even if the consequence is his automatic removal
from the United States.”
At sentencing a year later, the district court heard argu-
ment from both sides about the appropriate term of imprison-
ment. Ademiju personally and through counsel admitted that
his ability to stay in the United States was not assured. His
counsel told the court, “I’m not an immigration specialist … .
But it’s my understanding that a sentence of—any sentence of
less than one year—so if you were to sentence him to 364
days—I think the consequences for him in immigration court
are very significant. I think at that point he would be at least
eligible for a waiver.”
These representations about the potential immigration
consequences turned out to be incorrect, but no one in the
courtroom appeared to be aware of that. The government had

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No. 19-2588 3
no objection to Ademiju’s counsel’s recommendation, and the
district court sentenced Ademiju to eleven months’ imprison-
ment. The court also ordered $1.5 million in restitution.
Ademiju’s terms of supervised release required him to sur-
render to the Department of Homeland Security for a deter-
mination of his deportability. The court entered final judg-
ment on April 6, 2017, and Ademiju did not appeal. He re-
ported to prison on August 1, 2017.
In late 2017, Ademiju claims that he asked his defense
counsel if there was any way to change his sentence. His
counsel allegedly replied that the judgment was final. They
continued to communicate through June 2018.
On June 21, 2018, Ademiju was released from federal
prison and transferred into the custody of U.S. Immigration
and Customs Enforcement. By August 2018, he retained an
immigration attorney who informed him that the terms of his
plea agreement—specifically the offense of conviction and the
stipulated loss amount—subjected him to mandatory depor-
tation.
On August 8, 2018, Ademiju filed a 28 U.S.C. § 2255 mo-
tion to vacate and set aside his conviction because his attorney
provided ineffective assistance of counsel when advising him
on the immigration consequences of his guilty plea.
The government moved to dismiss the § 2255 motion as
untimely because Ademiju filed it several months after the
one-year statute of limitations expired in April 2018. Ademiju
responded that the statute of limitations should be tolled be-
cause he received incorrect advice from an attorney about his
options for recourse within the limitations period and because

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4 No. 19-2588
he could not have discovered the problem himself due to the
inadequacy of his prison’s law library.
The district court rejected Ademiju’s tolling arguments
and granted the government’s motion to dismiss. Ademiju
now appeals.
II. A NALYSIS
Motions under 28 U.S.C. § 2255 are subject to a one-year
period of limitation. 28 U.S.C. § 2255(f). In this case, that pe-
riod runs from “the date on which [Ademiju’s] judgment of
conviction [became] final.” Id. § 2255(f)(1). A petitioner who
files after that limitation period has expired is out of luck,
with a limited exception—equitable tolling.
“[E]quitable tolling is an extraordinary remedy that is
‘rarely granted.’” Carpenter v. Douma, 840 F.3d 867, 870 (7th
Cir. 2016) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir.
2013)). “A habeas petitioner is entitled to equitable tolling
only if he shows ‘(1) that he has been pursuing his rights dili-
gently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.’” Id. (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010)). The extraordinary-circum-
stance prong is met “only where the circumstances that
caused a litigant’s delay are both extraordinary and beyond
[his] control.” Id. (alteration in original) (quoting Menominee
Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016)).
Where, as here, a district court declines to apply equitable
tolling to a limitation period, our review is only for abuse of
discretion. Mayberry v. Dittmann, 904 F.3d 525, 530 (7th Cir.
2018).
Ademiju argues that three combined factors in his case
warrant equitable tolling. First, both before and at sentencing,

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No. 19-2588 5
his counsel gave him erroneous legal advice about his deport-
ability. Second, after sentencing, his counsel erroneously ad-
vised him that he could not challenge the final judgment. And
third, Ademiju’s prison had an inadequate law library that
hindered his ability to research his options because most of
the resources were in Spanish, which he does not understand.
We do not agree that these proffered factors, considered
alone or together, demand equitable tolling to such a degree
that the district court abused its discretion in declining to ap-
ply it.
Regarding the first and second factors, incorrect legal ad-
vice generally does not by itself trigger equitable tolling. See
Lee v. Cook County, 635 F.3d 969, 973 (7th Cir. 2011) (“A law-
yer’s ineptitude does not support equitable tolling.”). The Su-
preme Court has explained that “‘a garden variety claim of
excusable neglect’ … does not warrant equitable tolling.” Hol-
land, 560 U.S. at 651–52 (quoting Irwin v. Dep’t of Veterans Af-
fairs, 498 U.S. 89, 96 (1990)).
At most, Ademiju has alleged that his attorney was negli-
gent. So even though there is no question that Ademiju’s
counsel at sentencing was wrong about how the sentence
would affect Ademiju’s immigration status,1 and even though
1 Although his counsel represented to the district court that imposing
a prison sentence of less than a year could help mitigate the collateral im-
migration consequences, in reality, Ademiju was subject to mandatory de-
portation because he pled guilty to an aggravated felony. The definition
of “aggravated felony” includes offenses “involv[ing] fraud or deceit in
which the loss to the victim or victims exceeds $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i). Because Ademiju’s offense was an aggravated felony,
he was deportable, id. § 1227(a)(2)(A)(iii), and ineligible for discretionary
forms of relief. Moncrieffe v. Holder, 569 U.S. 184, 187 (2013).

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6 No. 19-2588
Ademiju’s counsel did not inform Ademiju of the possibility
of collateral review, counsel’s conduct does not rise to the
level of an extraordinary circumstance that prevented Adem-
iju from timely filing.
In rebuttal, Ademiju argues that being misled by his attor-
ney was equivalent to (or worse than) attorney abandonment,
which sometimes justifies equitable tolling, see Schmid v.
McCauley, 825 F.3d 348, 350 (7th Cir. 2016) (citing Maples v.
Thomas, 565 U.S. 266 (2012)). But that comparison is untena-
ble. We see no reason to equate Ademiju’s counsel’s negli-
gence with attorney abandonment.
Ademiju’s third argument—that his prison’s subpar law
library prevented him from timely filing his motion—like-
wise fails to support the extraordinary relief of equitable toll-
ing. Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (“[A]
prisoner’s limited access to the prison law library is not
grounds for equitable tolling.”) (citing Jones v. Hulick, 449 F.3d
784, 789 (7th Cir. 2006))).
Ultimately, nothing about this case is extraordinary.
Ademiju was clearly warned in his plea agreement that
“[r]emoval and other immigration consequences are the sub-
ject of a separate proceeding,” and he acknowledged that he
“[understood] that no one, including his attorney or the
Court, c[ould] predict to a certainty the effect of his conviction
on his immigration status.” Nevertheless, he “want[ed] to
plead guilty regardless of any immigration consequences that
his guilty plea may entail, even if the consequence is his auto-
matic removal from the United States.”
If that weren’t clear enough, the district judge warned
Ademiju at his plea hearing that entering a guilty plea “might

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No. 19-2588 7
also mean that your immigration status could be affected, and
you might have to be either deported or returned to your
home country. Do you understand that, sir?” Ademiju re-
sponded that he understood. Nothing in this case warrants
equitable relief from the consequences that Ademiju admitted
he might suffer.
Finally, we reject Ademiju’s contention that the district
court should have held an evidentiary hearing before denying
his motion. A hearing is unnecessary where “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We con-
clude on the record before us that Ademiju’s circumstances,
even if they exist exactly as he alleges, do not warrant the ex-
ceptional relief of equitable tolling, and thus a hearing was
not required. Spiller v. United States, 855 F.3d 751, 754 (7th Cir.
2017).
III. CONCLUSION
Ademiju failed to establish that extraordinary circum-
stances excuse his untimely filing, and the district court did
not abuse its discretion in refusing to toll the statute of limita-
tions. We AFFIRM.

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