United States of America v. Olajumoke

Background

Abiola Olajumoke filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence on specified constitutional or legal grounds. He alleged that Tony Mirvis, who represented him during his plea and sentencing, provided ineffective assistance of counsel.

Olajumoke had pleaded guilty to conspiracy to commit wire fraud under a plea agreement. The agreement provided for a Guidelines range of 63 to 78 months of imprisonment and restitution of $2,025,523.57. The court sentenced him to 63 months in prison, the same amount of restitution, and three years of supervised release. The agreement waived most appeals and later challenges, but preserved a right to challenge the sentence based on ineffective assistance of counsel.

Claims and Evidence

Olajumoke principally claimed that he immediately instructed Mirvis to file a notice of appeal after sentencing, but that Mirvis failed to do so before the deadline. He asked the court to vacate and re-enter the judgment so that the appeal period would begin again. Olajumoke also listed three issues he intended to raise on appeal: the late filing and alleged omissions in counsel’s sentencing submission, inadequate advice about the financial consequences of the plea agreement, and inadequate advice about possible defenses or alternatives to the plea.

Mirvis submitted an affidavit stating that he discussed Olajumoke’s options after sentencing, that Olajumoke said he wanted to think about them, and that Olajumoke never instructed him to appeal. The affidavit and attached records showed that Mirvis communicated with Olajumoke by email and text message and, on the filing deadline, asked whether Olajumoke wanted him to file a notice of appeal. Olajumoke did not respond to that message and contacted Mirvis about surrender details about seven weeks later.

Court’s Analysis

The court applied the two-part test for ineffective assistance of counsel. The defendant must show that counsel’s performance fell below reasonable professional standards and that the deficient performance harmed the defense. For a claim involving failure to appeal, a defendant may show either that counsel disregarded an express instruction to appeal or that counsel unreasonably failed to discuss the possibility of an appeal.

The court found that Olajumoke did not provide evidence supporting his claim that he instructed Mirvis to appeal or made multiple attempts to confirm that an appeal had been filed. The court credited Mirvis’s affidavit and the related messages, which it found showed that Mirvis discussed appeal options several times and reminded Olajumoke of the deadline. The court therefore found that Olajumoke did not ask Mirvis to file an appeal and that Mirvis did not unreasonably fail to consult with him.

The court determined that no evidentiary hearing was necessary because the written submissions and documentary evidence were sufficient to resolve the issue. It also declined to address the three other ineffective-assistance claims Olajumoke identified for a possible appeal, stating that those claims were outside the scope of the motion and were unsubstantiated. The court noted that those claims were contradicted by Mirvis’s affidavit and by Olajumoke’s statements during the plea proceeding that he had received satisfactory representation.

Disposition

Judge Loretta A. Preska denied Olajumoke’s motion to vacate his sentence under 28 U.S.C. § 2255. The clerk was directed to close the listed docket entries and mail a copy of the order to Olajumoke.