Adigun v. USA

Filing 3

ORDER directing government to respond to the petition. Signed by Chief Judge David R. Herndon on 12/16/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADEBISI TAFIKE ADIGUN,
Plaintiff,
No. 13-1281-DRH

vs.
UNITED STATES OF AMERICA,
Defendant.

ORDER
HERNDON, Chief Judge:
This matter is before the Court on petitioner’s motion to vacate, set
aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc.1). On April
11, 2011, the Court sentenced Adigun to 151 months in prison. United
States v. Adigun, 10-40033-GPM; Doc. 144.

During the proceedings,

Adigun was represented by attorneys N. Scott Rosenblum and Adam Fein.
Thereafter, Adigun filed a notice of appeal. Id. at Doc. 149. On January 22,
2013, the Seventh Circuit Court of Appeals issued the Mandate in this case
affirming Adigun’s sentence. Id at Doc.176.
In his § 2255 petition, defendant raises a slew of arguments for relief,
all which center around claims of ineffective assistance of counsel.
Although petitioner did not raise all these grounds on appeal, he may
proceed on his §2255 petition if he can show either “cause for the default

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and actual prejudice as a result of the alleged violation of federal law,” or
“that failure to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991) (emphasis
added); see also Edwards v. Carpenter, 529 U.S. 446, 455 (2000).
In Murray v. Carrier, the Supreme Court held that ineffective
assistance of counsel may constitute cause. However, “[s]o long as a
defendant

is

represented

by

counsel

whose

performance

is

not

constitutionally ineffective under the standard established in Strickland v.
Washington, [466 U.S. 668 (1984),] [there is] no inequity in requiring him
to bear the risk of attorney error that results in a procedural default.”
Murray, 477 U.S. at 488 (emphasis added).
In order to show ineffective assistance of counsel under Strickland, a
petitioner must satisfy yet another two pronged test by showing: (1)
“counsel’s

representations

fell

below

an

objective

standard

of

reasonableness” (the performance prong); and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (the prejudice prong). Strickland,
466 U.S. at 688, 694. In Castellanos v. United States, 26 F.3d 717 (7th
Cir. 1994), the Seventh Circuit held that a § 2255 movant need not
demonstrate prejudice when raising an allegation of ineffective assistance of
counsel where petitioner’s lawyer failed to file a requested direct appeal. Id.
at 719.

Page 2 of 3

The Court ORDERS the government to file a response to petitioner’s
motion on or before January 16, 2014. The government shall, as part of
its response, attach all relevant portions of the record.
IT IS SO ORDERED.
Signed this 16th day of December, 2013.

Digitally signed by
David R. Herndon
Date: 2013.12.16
11:55:09 -06'00'

Chief Judge
United States District Court

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