USA v. Adeyemo

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Michael Adefemi Adeyemo, a/k/a )
Adekunle Olufemi Adetiloye, )
)
Petitioner, ) OMNIBUS ORDER
)
vs. )
) Case No. 3:22-cv-181
United States of America, )
)
Respondent. )
______________________________________________________________________________
United States of America, )
)
Plaintiff, )
)
vs. ) Case No. 3:15-cr-90
)
Michael Adefemi Adeyemo, a/k/a, )
Adekunle Olufemi Adetiloye, )
)
Defendant. )
______________________________________________________________________________
Petitioner Michael Adefemi Adeyemo moves to vacate, set aside, or correct sentence under
28 U.S.C. § 2255. Doc. 187. The United States opposes the motion. Doc. 204. After careful review,
the motion is denied in part and an evidentiary hearing is ordered on two remaining issues.
I. BACKGROUND
In 2001, Adeyemo and two others were charged in California with operating a fraud
scheme. United States v. Adeyemo, No. 8:01-cr-75 (C.D. Cal. filed May 9, 2001). Adeyemo left
the country before he could be arrested. By late 2003, he lived in Canada under the false name and
identity of Adekunle Olufemi Adetiloye. He applied for refugee status in Canada using the new
name and false biographical information. In 2008, a grand jury in this District returned an
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indictment alleging fraud-scheme charges against Adeyemo under his false name. United States v.
Adetiloye, No. 3:08-cr-28 (D.N.D. Mar. 19, 2008).
In 2010, Canada extradited Adeyemo to the United States, where he later pleaded guilty
and was sentenced in North Dakota as Adetiloye. In 2014, the government realized Adetiloye and
Adeyemo were the same person. In 2018, a jury found Adeyemo guilty on four counts of
obstruction of justice, in violation of 18 U.S.C. § 1503, for providing or affirming false identifying
information to the District of North Dakota with the intent to mislead the court and to prevent the
Central District of California from discovering his location. These convictions were affirmed on
appeal. See United States v. Adeyemo, 819 F. App’x 469, 470 (8th Cir. 2020).
On October 21, 2022, Adeyemo filed this motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255, alleging various forms of ineffective assistance of counsel related to his
convictions in Case No. 3:15-cr-90. Doc. 187.
II. LEGAL STANDARD
A motion under 28 U.S.C. § 2255 provides avenues for relief “in several circumstances,
including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.”
Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). “Habeas
review is an extraordinary remedy and will not be allowed to do service for an appeal.” Fletcher
v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d
759, 762 (8th Cir. 2012)).
To obtain relief on an ineffective assistance of counsel claim, a petitioner must satisfy the
two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). For the first
prong, a petitioner must establish constitutionally deficient representation, meaning counsel’s
performance fell below an objective standard of reasonableness. Meza-Lopez v. United States, 929
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F.3d 1041, 1044 (8th Cir. 2019) (citing Strickland, 466 U.S. at 687-88). “This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. Courts view the representation from
counsel’s perspective at the time of the alleged error to avoid the effects of hindsight and second-
guessing. Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019) (citing Strickland, 466 U.S. at 489).
A petitioner must overcome a strong presumption that defense counsel provided “adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690; see also Camacho v. Kelley, 888 F.3d 389, 394 (8th Cir. 2018).
Strategic decisions made after a thorough investigation of the law and facts are virtually
unchallengeable. United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011).
To satisfy the second prong, a petitioner must demonstrate that prejudice resulted from the
deficient representation. Strickland, 466 U.S. at 687. To do so, a petitioner must show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Adejumo v. United States, 908 F.3d 357, 361 (8th Cir. 2018) (quoting
Strickland, 466 U.S. at 694). A reasonable probability is one “sufficient to undermine confidence
in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at
694). When evaluating the probability of a different result, courts view the totality of the evidence
to gauge the effect of the error. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006)
(citing Strickland, 466 U.S. at 495). Where a petitioner raises multiple ineffective assistance of
counsel claims, each claim must be examined independently rather than collectively. Hall v.
Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d 1226,
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1233 (8th Cir. 1996)). Cumulative error will not justify habeas relief. Middleton v. Roper, 455
F.3d 838, 851 (8th Cir. 2006).
A § 2255 motion may be dismissed without a hearing if “(1) the petitioner’s allegations,
accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.” Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 (8th Cir. 2011).
“The movant bears the burden to prove each ground entitling relief.” Golinveaux v. United States,
915 F.3d 564, 567 (8th Cir. 2019) (citation omitted). Whether to grant or deny an evidentiary
hearing is committed to the discretion of the district court. See id.
III. DISCUSSION
Adeyemo asserts his counsel was ineffective and that the ineffective representation caused
him prejudice. In support of this argument, he raises a plethora of issues that can be logically
categorized as follows: (1) pretrial issues; (2) trial issues; (3) sentencing issues; and (4) appeal
issues.
A. Pretrial Issues
Adeyemo asserts his counsel was deficient during the pretrial stage of his representation
for the following reasons: (1) conflict of interest; (2) failure to reasonably investigate several issues
related to the case; (3) failure to investigate potential witnesses; and (4) deficient legal advice. The
United States opposes these assertions.
1. Conflict of Interest
Adeyemo argues that his counsel’s attempt to withdraw from his case created a conflict of
interest and resulted in deficient representation. Doc. 213 at 7-11. An attorney who seeks to
withdraw from representation, but ultimately remains on as counsel, is not (in isolation)
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ineffective. See e.g., Meza-Lopez v. United States, 929 F.3d 1041, 1045 (8th Cir. 2019). That
isolated fact does not show that the representation fell below an objective standard of
reasonableness.
Further, Adeyemo only states in conclusory fashion that the purported conflict of interest
caused him prejudice. Doc. 213 at 11-12. Conclusory allegations are claims that lack factual
specificity. See Allen v. Entergy Corp., 181 F.3d 902, 905-06 (8th Cir. 1999); see also Berg v.
Norand Corp., 169 F.3d 1140, 1146 (8th Cir. 1999). Conclusory allegations are insufficient to
grant relief. See e.g., Munz v. Parr, 758 F.2d 1254, 1259 (8th Cir. 1985) (conclusory or non-
specific factual allegations insufficient, even for a pro se party). Because Adeyemo has not
specified how the motion to withdraw caused him prejudice, the claim fails under Strickland for
lack of prejudice as well.
2. Failure to Reasonably Investigate
Adeyemo also argues that counsel was deficient for failure to reasonably investigate the
following issues: (1) the interplay between his prior fraud case and obstruction of justice charges;
(2) his refugee status; (3) potential mitigating circumstances; (4) an aiding and abetting jury
instruction; (5) the potential for a pre-trial motion to inspect records related to jury selection; (6)
potential Fifth Amendment issues; (7) the “traditional culture” theory advanced at trial; and (8) the
District of California’s decision to not prosecute in a separate case. The United States opposes
these assertions.
a. The interplay between Adeyemo’s prior fraud conviction and
obstruction of justice charges
Adeyemo argues that his counsel’s failure to adequately investigate a prior change of plea
transcript fell below the objective standard of reasonableness and caused him prejudice. Doc. 213
at 14-16. “Reasonable performance of counsel includes an adequate investigation of facts,
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consideration of viable theories, and development of evidence to support those theories.” Cagle v.
Norris, 474 F.3d 1090, 1097 (8th Cir. 2007) (quoting Lyons v. Luebbers, 403 F.3d 585, 594 (8th
Cir. 2005). While Adeyemo argues his attorney should have more thoroughly investigated this
transcript, he has not articulated what this transcript would have revealed or how this would have
changed the ultimate outcome of his trial. This is a conclusory allegation that is again subject to
summary dismissal.
b. Issues related to refugee status
Adeyemo argues that counsel’s failure to adequately investigate his refugee status fell
below the objective standard of reasonableness and caused him prejudice. Doc. 213 at 16-19. He
claims counsel would have uncovered additional legal defenses to the obstruction of justice
charges if he had investigated why he was granted asylum in Canada. Nevertheless, Adeyemo has
not identified exactly what exculpatory evidence would have been discovered by a more thorough
investigation of the circumstances surrounding his refugee status in Canada under a false name.
And it remains unclear how this purported information would have led to a different result at
Adeyemo’s trial, where he was convicted of providing false information to a federal district court.
As such, this is a conclusory allegation that is subject to summary dismissal.
c. Potential mitigating circumstances related to international
treaties
Adeyemo argues that counsel’s failure to adequately investigate the circumstances of his
extradition and rights under an international treaty fell below the objective standard of
reasonableness and caused him prejudice. Doc. 213 at 19-20. Again, Adeyemo does not provide
any concrete factual information in his allegation. Instead, he broadly asserts that a more thorough
investigation of the extradition treaty in conjunction with his status as a refugee would have
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changed the outcome of his trial. But without more, this is another conclusory allegation subject
to summary dismissal.
d. Jury instructions
Adeyemo argues his counsel failed to request an aiding and abetting instruction. Doc. 213
at 20-23. Adeyemo, however, was the sole individual indicted on four counts of obstruction of
justice and charged as the principal, so this claim is illogical. Additionally, even if an aiding and
abetting instruction was appropriate, there is no prejudice because aiding and abetting an offense
against the United States is punishable as if the defendant committed the underlying crime. See 18
U.S.C. § 2(a). Once again, the claim is subject to summary dismissal.
Adeyemo also argues throughout his briefing that an instruction on “mere presence” was
appropriate, and that counsel failed to properly investigate the instruction or request it. This is
contradicted by the record. See Doc. 163 at 11. The transcript of the pretrial conference reflects
that counsel did request the “mere presence” instruction and the Court rejected it as inapplicable
because there was no conspiracy charge. Id. Because there was no conspiracy charge, any failure
to renew the request for a “mere presence” instruction was not deficient performance and did not
cause Adeyemo any prejudice because this request was futile. See Thomas v. United States, 951
F.2d 902, 904-05 (8th Cir. 1991) (failure to raise a meritless issue does not constitute ineffective
assistance).
e. Jury selection issues
While at times difficult to follow, Adeyemo appears to argue that counsel was deficient for
not challenging the Court’s process for selection of jurors. Doc. 213 at 23-25, 56-57. The Jury
Selection and Service Act provides that individuals are entitled to “juries selected at random from
a fair cross section of the community in the district or division wherein the court convenes.” 28
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U.S.C. § 1861. The District of North Dakota randomly selects potential jurors from a list of
individuals who voted in the most recent presidential election. United States v. Garcia, 674 F.
App’x 585, 587 (8th Cir. 2016). This selection process has been upheld by the Eighth Circuit in
several cases. Id.; United States v. Greatwalker, 356 F.3d 908, 911 (8th Cir. 2004); United States
v. Morin, 338 F.3d 838, 843 (8th Cir. 2003). Given the well-settled nature of this issue, even if
Adeyemo’s attorney would have challenged the process, any motion would have lacked merit, and
counsel is not deficient for failing to raise a meritless argument. See Thomas, 951 F.2d at 904-05.
This allegation is therefore subject to summary dismissal.
f. Fifth Amendment theory of defense
Adeyemo goes on to argue that counsel was ineffective for failing to properly investigate
the Fifth Amendment strategy that was used at trial. Doc. 213 at 25-29. Adeyemo does not suggest
he opposed the strategy prior to trial. Instead, he essentially argues that the strategy was so far
below an objective standard of reasonableness that it must follow that counsel did not thoroughly
investigate the strategy prior to trial.
Adeyemo must overcome a strong presumption that defense counsel provided “adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. “Some strategy decisions . . . are so unreasonable that they can support
a claim of ineffective assistance of counsel.” United States v. Villalpando, 259 F.3d 934, 939 (8th
Cir. 2001). That being said, Adeyemo must also demonstrate there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Prejudice is not shown if the evidence is so strong that the
outcome of the case could hardly have been other than a verdict of guilty. Goeders v. Hundley, 59
F.3d 73, 77 (8th Cir. 1995).
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A common theme throughout Adeyemo’s briefing is his conflation of adequate
representation with success. But this is not the Strickland standard. The Court is mindful that in
some cases where the evidence is overwhelming against a defendant, counsel must make novel
arguments in an attempt to advocate for their client. Here, it is unnecessary to examine whether
counsel’s investigation of his trial strategy was deficient because the evidence against Adeyemo
was overwhelming.1 Adeyemo has not presented any factual information that leads the Court to
believe the outcome at trial would have been different if counsel had decided against pursuing the
Fifth Amendment argument. As a result, the claim fails for lack of prejudice and can be summarily
dismissed.
g. “Traditional culture” theory of defense
Adeyemo suggests his counsel was deficient for informing the jury that it is common in
Nigeria (where Adeyemo is from) to have more than one name. Doc. 213 at 29-32. Again, the
evidence in this case was overwhelming, and Adeyemo has not presented any factual information
that leads the Court to believe the outcome at trial would have been different if counsel had decided
against informing the jury about Nigerian naming conventions. As a result, the claim fails for lack
of prejudice and can be summarily dismissed.
h. California case
Adeyemo goes on to argue his counsel was deficient for failure to investigate a related case
in California, where the prosecutor chose not to pursue charges against him. Doc. 213 at 32-35.
Even if taken as true, Adeyemo has not alleged how this would have led to the outcome at trial
1 So overwhelming that the Eighth Circuit affirmed the sufficiency of the evidence without analysis
under Eighth Circuit Rule of Appellate Procedure 47B. United States v. Adeyemo, 819 F. App’x
469, 470 (8th Cir. 2020).
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being different other than stating so in conclusory fashion. Accordingly, summary dismissal is
appropriate.
3. Failure to Interview Witnesses
Next, Adeyemo suggests his counsel was deficient for failure to interview potential
witnesses. Specifically, he asserts that Alicia Whitman and Matt Hoffman should have been
interviewed prior to trial. Doc. 213 at 46-49. There is, however, “no per se rule that failure to
interview witnesses constitutes ineffective assistance.” Sanders v. Trickey, 875 F.2d 205, 209 (8th
Cir. 1989). The analysis will turn on the facts of each individual case. Id.
Alicia Whitman testified against Adeyemo at trial. Adeyemo claims that a more thorough
investigation would have revealed that Whitman suffers from bi-polar disorder and was on anti-
depressants as well as anti-anxiety medication. Adeyemo then suggests this information would
have damaged Whitman’s credibility. On this record, however, the Court cannot reach this
conclusion. While Whitman may, or may not, suffer from certain mental health issues, her
testimony does not appear to have any discrepancies or problems that leads the Court to believe
there were any genuine issues. Further, while Adeyemo suggests the outcome of his trial would
have been different if counsel had investigated the purported mental health issues, he has failed to
illustrate exactly why this would have been the case. The claim is summarily dismissed.
Matt Hoffman testified at trial that Adeyemo appeared to have falsified his paperwork
related to his request for refugee status by claiming to be homosexual. While Adeyemo claims a
more thorough investigation of Hoffman would have led to information supporting Adeyemo’s
claim that he needed refugee status due to his same-sex sexual orientation, it is not at all clear why
this would be the case. It is also unclear why the failure to thoroughly interview a witness who
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believed Adeyemo to be heterosexual would have led to a different outcome when Adeyemo’s
convictions involve false statements to the Court. The claim is summarily dismissed.
4. Advice to Reject Plea Deal and Proceed to Trial
Adeyemo argues his counsel was deficient by advising him to reject a plea agreement and
proceed to trial. Doc. 213 at 52-53. What is more, Adeyemo suggests his counsel guaranteed him
a not guilty verdict at trial. Id. at 52. Attorney Ron Hettich—Adeyemo’s former counsel—
submitted an affidavit disputing these accusations and stating he recommended Adeyemo accept
a plea agreement. Doc. 205.
While quite skeptical of Adeyemo’s claim that he was “guaranteed” a not guilty verdict
and advised to reject a plea agreement, it is inappropriate to weigh creditability at this state of the
proceedings. See Franco v. United States, 762 F.3d 761 (8th Cir. 2014); see also United States v.
Sellner, 773 F.3d 927, 930 (8th Cir. 2014). An evidentiary hearing is necessary prior to making a
credibility determination. See Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013) (a
district court is not permitted to make a credibility determination on the affidavits alone).
B. Trial Issues
1. Jury Selection
With the pretrial claims resolved, the next category of claims involve alleged issues at trial.
Adeyemo argues he received ineffective assistance of counsel during jury selection. Doc. 213 at
56-61. He asserts a general dissatisfaction with counsel’s jury selection and broadly challenges the
racial makeup of the jury.
To the extent Adeyemo is suggesting counsel should have been more thorough in his
examination of potential jurors, he has not explained how a more zealous approach to jury selection
would have led to a different result. If Adeyemo is suggesting the representation was so deficient
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that prejudice should be presumed, this argument fails as well. Adeyemo’s counsel was active in
questioning the jurors about their ability to treat Adeyemo fairly and ignore issues related to race,
sexuality, and criminal history. Doc. 163 at 73-78. When counsel is present and active during the
jury selection process, no prejudice can be assumed. See e.g., United States v. Kehoe, 712 F.3d
1251, 1254 (8th Cir. 2013). Lastly, to the extent Adeyemo is challenging the racial makeup of the
jury, this argument has already been addressed. See supra, Section 3(A)(2)(e).
2. Opening Statement
Adeyemo next contends his counsel provided ineffective assistance of counsel by not
delivering an adequate opening statement. Doc. 213 at 61-64. The Court has reviewed the
transcript of counsel’s opening statement and observed no obvious deficiencies. He also argues
that counsel was deficient for suggesting that the United States would not be able to meet its burden
on one of the necessary elements for conviction. Doc. 213 at 61-62. But this was a strategic choice
by counsel and not deficient performance. Adeyemo then suggests counsel conceded his guilt to
the jury during the opening statement. Id. at 63-64. That claim is refuted by the record—nowhere
in the transcript does counsel concede Adeyemo’s guilt. Finally, Adeyemo has not explained how
a different opening statement would have changed the ultimate outcome of his trial. As a result,
he has not demonstrated prejudice. The claim is summarily dismissed.
3. Jury Instructions
Adeyemo raises several challenges related to the jury instructions and the special verdict
form, contending that his counsel was ineffective in securing appropriate instructions. As an initial
matter, the sufficiency of the jury instructions and the failure to give a “nexus requirement”
instruction were unsuccessfully challenged on appeal. United States v. Adeyemo, 819 F. App’x
469, 470 (8th Cir. 2020). Claims raised during a direct appeal cannot be revisited in a § 2255
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motion. United States v. Shabazz, 657 F.2d 189, 190 (8th Cir. 1981). So, a claim on either of these
issues is precluded. Adeyemo also revisits his argument that an aiding and abetting instruction
should have been given. Doc. 213 at 68. Again though, because Adeyemo acted alone, it was not
deficient for counsel not to suggest this instruction, and no prejudice resulted from the failure to
request the erroneous instruction.
Adeyemo also argues that an unanimity instruction was not given, but this is contradicted
by the record. Doc. 133 at 2. He also goes on to posit that counsel failed to object to the special
verdict form, but this is again contradicted by the record. Doc. 165 at 509:21-510:4.
Next, Adeyemo suggests counsel should have proposed additional jury instructions based
upon his “theory of defense.” Id. at 67. Despite a significant number of pages being devoted to this
argument, it is unclear what this purported instruction would have been, why it would have been
appropriate under the circumstances, and how it would have changed the outcome of the trial. So,
there is no deficient performance or prejudice shown. Similarly, Adeyemo also takes issues with
counsel’s lack of objection to the jury instructions. Id. at 74. But his counsel did object to the jury
instructions and unsuccessfully challenged their sufficiency on appeal. Adeyemo, 819 F. App’x at
470. Additionally, Adeyemo has not elaborated as to what objection he believes was appropriate
and how it would have changed the outcome of trial. As such, the claim fails.
4. Cross Examination
Adeyemo takes issue with his counsel’s cross examination of witnesses Matt Hoffman and
Alicia Whitman. Id. at 75, 78, 82. Cross-examination techniques, like other matters of trial
strategy, are generally entrusted to the professional discretion of counsel. Henderson v. Norris,
118 F.3d 1283, 1287 (8th Cir. 1997). He offers no details beyond making a conclusory claim that
cross examination was deficient. The Court reviewed the trial transcript and cannot identify any
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deficiencies with counsel’s performance. The claim is conclusory and there is no prejudice—the
claim fails under Strickland.
5. Failure to Object to Evidence
Adeyemo also alleges that counsel failed to object to the admission of “prejudicial and
extraneous evidence.” Doc. 213 at 76, 78. As an initial matter, relevant evidence is only
inadmissible if it results in “unfair prejudice.” See Fed. R. Evid. 403. Once again, Adeyemo offers
no detail as to what evidence should have been objected to, what unfair prejudice resulted, and
how any objection would have changed the ultimate outcome of his case. As such, the claim fails.
6. Failure to Produce Mitigating Evidence
Adeyemo goes on to argue that counsel was deficient by failing to present mitigating
evidence. Again though, matters of trial strategy are generally entrusted to the professional
discretion of counsel. See Henderson, 118 F.3d at 1287. The majority of Adeyemo’s argument
lacks specificity as to what precisely counsel should have done and how it would have led to a
different outcome. That said, he did submit the affidavit of Uloma Anyanwu in support of his
motion. Doc. 217. In the affidavit, Anyanwu suggests they would have been willing to testify
regarding Adeyemo’s same-sex orientation. Id. at 3. Taking this affidavit and Adeyemo’s briefing
as true, he has alleged he was forced to flee Nigeria due to his sexual orientation and that counsel
failed to investigate or present evidence concerning this issue. But Adeyemo has not said how
providing this information to the jury would have led to a different result. Indeed, even if this
evidence was introduced, the evidence was overwhelming to support the convictions. He has failed
to articulate any prejudice, and the claim fails under Strickland.
7. Failure to Secure Expert Witness
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Adeyemo argues counsel was deficient for failing to secure expert testimony concerning
immigration and asylum law. Doc. 213 at 84. He suggests this expert could have provided
information related to his claim for refugee status in Canada. Again, however, none of this
purported expert testimony would have addressed whether Adeyemo gave false identifying
information. As such, the failure to secure an expert of immigration and asylum law was not
deficient representation and was not prejudicial.
8. Failure to File Meritorious Rule 29 and 33 Motions
Adeyemo next posits that counsel was deficient for failing to file meritorious motions under
Federal Rule of Criminal Procedure 29 and 33. Doc. 213 at 85. Notably, counsel did make both of
these motions, and the motions were denied. Doc. 143. The record decisively refutes this claim,
and the claim fails.
9. Closing Argument
Adeyemo goes on to assert that he received ineffective assistance of counsel during closing
argument. Doc. 213 at 88-89. The issues he raises though all challenge strategic decisions of
counsel and relate to trial strategy. See Guzman-Ortiz, 849 F.3d at 714 (noting the broad range of
legitimate trial strategy at closing argument). Further, the Court has reviewed the transcript and
found nothing deficient about counsel’s closing argument. The claim is summarily dismissed.
C. Sentencing
For his next category of claims, Adeyemo argues his counsel was ineffective at sentencing.
He alleges counsel was ineffective for failing to object to inaccuracies in the presentence
investigation report (“PSIR), that he was convicted by the judge as opposed to the jury, that counsel
failed to object to the base offense level, and that an unwarranted sentencing disparity should have
been raised.
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1. Objections to the PSIR
Adeyemo first argues that counsel failed to sufficiently object to the disputed issues in the
PSIR, and that the Court did not comply with Federal Rule of Criminal Procedure 32(c). Doc. 213
at 92-93. As to the claim that the Court failed to satisfy Federal Rule of Criminal Procedure 32(c),
Adeyemo has not explained how the Court failed to satisfy the rule and the claim fails. Specifically
as to the PSIR, Adeyemo alleges the document references an erroneous aiding and abetting
conviction and an erroneous admission of guilt related to a different case. Id. at 92. The Court has
reviewed the PSIR and neither allegation is an accurate reflection of what is stated in the PSIR,
and the claim is summarily dismissed.
2. Conviction by a Judge
Adeyemo alleges that he was erroneously convicted by a judge and not a jury (id. at 64),
but does not elaborate in an understandable manner as to why he believes this to be true. As far as
the Court can tell, Adeyemo claims he was entitled to more process. The record reflects that
Adeyemo was convicted by the jury, and then sentenced by the district court in accordance with
18 U.S.C. §§ 3553 and 3582(a) and Federal Rule of Criminal Procedure 32. The record refutes any
argument that Adeyemo was convicted by the judge. The claim fails.
3. Base Offense Level
Adeyemo appears to argue that counsel should have objected to the base offense level or
objected in a different manner. Id. at 100-02. The record reflects that counsel objected to the base
offense level and argued for a 14, rather than a 30. Doc. 167 at 6-7. The Court disagreed and found
that the proper base offense level was 30. Id. at 9. The record decisively refutes the claim, and it
fails.
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4. Unwarranted Sentencing Disparity
Adeyemo claims counsel failed to argue against unwarranted sentencing disparities. Doc.
213 at 102-04. Despite this claim, he has not identified any “unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” See 18
U.S.C. § 3553(a)(6). Without a description as to what disparity existed that was omitted by counsel,
the claim is conclusory and fails.
D. Appeal
The final category of claims relates to Adeyemo’s appeal. He argues his counsel was
ineffective during his appeal. Doc. 213 at 104-07. A criminal defendant is entitled to effective
assistance of counsel during the appeal process. Estes v. United States, 883 F.2d 645, 648 (8th Cir.
1989). That said, the right to effective assistance “does not require that counsel raise every
colorable or non-frivolous claim on appeal.” Walker v. United States, 810 F.3d 568, 579 (8th Cir.
2016). To show ineffective assistance during the appeal process, Adeyemo must establish a
reasonable probability that, but for appellate counsel’s specific failure, the outcome of his appeal
would have been different.” Boysiewick v. Schriro, 179 F.3d 616, 621 (8th Cir. 1999) (emphasis
added). Adeyemo asserts several issues he claims should have been raised but has not explained
why these issues should have been raised with any level of detail or how raising these issues would
have led to a different result. His claims are conclusory and are subject to summary dismissal.
E. Evidentiary Hearing
“Evidentiary hearings on [§ 2255] motions are preferred, and the general rule is that a
hearing is necessary prior to the motion’s disposition if a factual dispute exists.” Thomas v. United
States, 737 F.3d 1202, 1206 (8th Cir. 2013) (emphasis added). Said another way, no hearing is
necessary “if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to
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relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of fact.” Sanders v. United States, 341
F.3d 720, 722 (8th Cir. 2003).
After careful review of all of Adeyemo’s substantive § 2255 claims, the record decisively
refutes the vast majority of the claims presented, or the allegations, even accepted as true, would
not entitle him to relief. Dismissal without an evidentiary hearing on these claims is warranted
because no relevant factual dispute exists. See Calkins v. United States, 795 F.3d 896, 900 (8th
Cir. 2015).
But on the two issues of (1) whether counsel “guaranteed” Adeyemo a victory at trial, and
(2) whether Adeyemo was advised by counsel to turn down a plea agreement and proceed to trial,
a relevant factual dispute exists, and an evidentiary hearing is required.
IV. ADDITIONAL MOTIONS
Adeyemo has also filed several motions related to his § 2255 claims: (1) motion to conduct
discovery (Doc. 191); (2) motion for copies of unsealed records (Doc. 201); (3) motion for
sanctions and judgment of default (Doc. 209); and (4) motion for judicial notice and leave to file
an extended reply brief (Doc. 220).
A. Motion to Conduct Discovery
Adeyemo moves to conduct discovery (Doc. 191), seeking access to communications
between the United States attorneys in California and the United States attorneys in North Dakota.
The United States opposes the motion. Doc. 196. Rule 6 of the “Rules Governing Section 2255
Proceedings For The United States District Courts” provides that federal district courts can
authorize parties to “conduct discovery” in connection with pending § 2255 motions. Rule 6
provides that discovery should be allowed only “for good cause.” United States v. Basic, No. 1:18-
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CR-125, 2020 WL 3979582, at *3 (D.N.D. July 14, 2020). “Good cause” requires specific
allegations and an explanation as to how this information would lead to a different result. Bracy v.
Gramley, 520 U.S. 899, 908 (1997).
Here, Adeyemo has made bare assertions that the communications between the United
States Attorneys’ Offices would assist him in proving his ineffective assistance claim, but he has
not provided any information as to how this would assist his case. Adeyemo has not shown good
cause for the materials he seeks, and the motion to conduct discovery (Doc. 191) is denied.
B. Motion for Copies of Unsealed Records
On January 26, 2023, the Court granted the United States’ motion to unseal documents.
Doc. 200. Per the Court’s order, the United States received access to Adeyemo’s former counsel’s
motion to withdraw. Id. Adeyemo then filed a motion requesting access to these documents as
well. Doc. 201. As the Defendant, however, these documents were never sealed to Adeyemo, and
he has never been prevented from accessing these documents. Accordingly, no motion is necessary
to receive the documents and the Court finds as moot the motion for copies of unsealed records
(Doc. 201).
C. Motion for Sanctions and Judgment of Default
Adeyemo’s § 2255 motion raised numerous allegations of ineffective assistance of counsel
on the part of his former trial and appellate counsel. Doc. 187. The United States then sought and
received an order waiving attorney client privilege as to Adeyemo’s allegations. Doc. 193. Former
counsel was directed to submit a responsive affidavit to the United States by January 4, 2023. The
United States then sought and received two extensions of time to file their responsive brief (Doc.
197, 203), but no extension regarding submission of the affidavit was ordered. Former counsel’s
affidavit was not received by the United States until February 8, 2023. Adeyemo argues that
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because former counsel missed the deadline to file a responsive affidavit, default judgment against
the United States is appropriate. Doc. 209. The United States opposes the motion. Doc. 211.
Generally, default judgment in habeas corpus proceedings is inappropriate. Hale v.
Lockhart, 903 F.2d 545, 547 (8th Cir. 1990). Under Federal Rule of Civil Procedure 55(d), “[a]
default judgment may be entered against the United States . . . only if the claimant establishes a
claim or right to relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). Here, there is
nothing about the delay in the submission of former counsel’s affidavit that suggests Adeyemo is
entitled to relief. This is a technical error that is minor in nature. To the extent this missed deadline
can be considered an error, it was an error committed by a non-party and not the United States.
Adeyemo was provided a copy of the affidavit and related exhibits with the United States’
response. Doc. 205. Adeyemo has not suffered any prejudice and granting a remedy as
extraordinary as habeas relief is not appropriate on these facts. The motion for sanctions and
judgment of default is denied.
D. Motion for Judicial Notice and Leave to File Extended Reply Brief
Adeyemo asks the Court to take judicial notice of an exhibit purported to show that former
counsel provided false information concerning his jail visits with Adeyemo. Doc. 220. Adeyemo
also seeks leave to file an extended reply brief. Id. To the extent Adeyemo seeks to file an extended
reply brief, the motion is granted, and the Court has considered his reply, corresponding exhibits,
and supplemental filings. Doc. 221-22. To the extent Adeyemo is seeking to have the Court take
judicial notice of his “Exhibit 1,” that is unnecessary, but the Court will consider the document as
it would any other exhibit. Accordingly, the motion is denied to the extent it seeks judicial notice
of exhibit 1.
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V. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ filings, and the relevant
case law. Except for the two issues identified above, Adeyemo’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 (Doc. 187) is DENIED. The issues of whether counsel
guaranteed an acquittal, and whether counsel advised Adeyemo to reject a plea agreement and
proceed to trial, require an evidentiary hearing. Pursuant to 18 U.S.C. § 3006A(a)(2)(B), the Clerk
of Court is directed to secure counsel for Adeyemo to represent him for the duration of these
proceedings. The United States Marshals Service is directed to transport Adeyemo to Fargo, North
Dakota, to consult with his attorney and prepare for the evidentiary hearing. The Court will
communicate with the parties to schedule the evidentiary hearing in the coming days.
Additionally, Adeyemo’s motion to conduct discovery (Doc. 191) is DENIED. The Court
FINDS AS MOOT Adeyemo’s motion to unseal documents (Doc. 201). Adeyemo’s motion for
sanctions and judgment of default (Doc. 209) is DENIED. Adeyemo’s motion to take judicial
notice and file extended reply brief (Doc. 220) is GRANTED IN PART AND DENIED IN
PART. Finally, the Court FINDS AS MOOT the United States’ motion seeking permission to
respond to supplemental filings (Doc. 223).
IT IS SO ORDERED.
Dated this 3rd day of October, 2023.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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