Imo v. United States of America

Filing 18

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION as to Umawa Oke Imo re: 1 Motion to Vacate (2255), Motion for Miscellaneous Relief filed by Umawa Oke Imo. The Court will hold a limited evidentiary hearing to determ ine whether Imo has met his burden of showing prejudice with respect to his claim that his appellate counsel was ineffective. Imo has not filed a financial affidavit or a Declaration in Support of a Request to Proceed In Forma Pauperis as requested b y the Magistrate Judge, so the Court cannot determine whether Imo is eligible for court-appointed counsel. Therefore, the Court assumes Imo wishes to retain his own counsel for the evidentiary hearing. Imos counsel shall enter a notice of appearance with the Court prior to the hearing. It is further ORDERED that Movants Motion to Supplement § 2255 Motion (Doc. 809) is DENIED, The remaining claims in Movants § 2255 Motion (Doc. 751) are denied. Movants Motion to Supplement § 2255 Motion (Doc. 809) is DENIED. ( Signed by Judge Melinda Harmon) Parties notified. (jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
V.
UMAWA OKE IMO,
Defendant-Movant.

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November 22, 2017
David J. Bradley, Clerk

CRIMINAL ACTION NO. H-09-426-1
CIVIL ACTION NO. H-15-1827

OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
Pending before the Court in the above referenced proceeding is Movant Umawa Oke
Imo’s § 2255 Motion to Vacate, Set Aside or Correct Sentence (Doc. 751), and Memorandum in
Support (Doc. 751-1); Movant’s Motion to Supplement § 2255 Motion (Doc. 809); the United
States’ Memorandum Response to § 2255 Motion (Doc. 826); and Judge Stacy’s Memorandum
and Recommendation that the Court deny in part the § 2255 Motion, that an evidentiary hearing
be held on the remaining claim, and that Movant’s Motion to Supplement § 2255 Motion be
denied as time-barred (Doc. 829).

No objections were filed to the Memorandum and

Recommendation.
Where no party objects to the Magistrate Judge’s Memorandum and Recommendation,
the Court is not required to perform a de novo review of the Magistrate Judge’s determination,
but need only review it to decide whether it is clearly erroneous or contrary to law. Gamez v.
United States, No. SA-06-CR-401-XR, 2014 WL 2114043, at *2 (W.D. Tex. May 20, 2014)
(citing United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)). Once a defendant has been
convicted and has exhausted or waived his or her right to appeal, a Court may presume that he or
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she “stands fairly and finally convicted.” United States v. Willis, 273 F.3d 592, 595 (5th Cir.
2001). Therefore relief under § 2255 is limited to “transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589
(5th Cir. 1996). The court’s ability to reduce or modify a sentence of imprisonment once it has
been imposed is restricted. United States v. Lopez, 26 F.3d 512, 515 (5th Cir. 1994) (per curiam).
There are four grounds on which a defendant may move to vacate, set aside, or correct his or her
sentence under § 2255: (1) “the sentence was imposed in violation of the Constitution or laws of
the United States”; (2) “the [district] court was without jurisdiction to impose such sentence”; (3)
“the sentence was in excess of the maximum authorized by law”; and (4) the sentence was
“otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “A defendant can challenge [his or
her] conviction after it is presumed final only on issues of constitutional or jurisdictional
magnitude . . . and may not raise an issue for the first time on collateral review without showing
both ‘cause’ for his[ or her] procedural default and ‘actual prejudice’ resulting from the error.”
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (citations omitted).
After carefully considering the record and the applicable law, the Court adopts the
Magistrate

Judge’s

Memorandum

and

Recommendation.

In

accordance

with

the

recommendation made therein, it is hereby
ORDERED that the Court will hold a limited evidentiary hearing to determine whether
Imo has met his burden of showing prejudice with respect to his claim that his appellate counsel
was ineffective by failing to appeal this Court’s two level obstruction of justice enhancement
pursuant to U.S.S.G. § 3C1 based on Imo’s failure to provide financial information to the
Probation Department. The remaining claims in Movant’s § 2255 Motion (Doc. 751) are denied.
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Imo has not filed a financial affidavit or a Declaration in Support of a Request to Proceed
In Forma Pauperis as requested by the Magistrate Judge, so the Court cannot determine whether
Imo is eligible for court-appointed counsel. Therefore, the Court assumes Imo wishes to retain
his own counsel for the evidentiary hearing. Imo’s counsel shall enter a notice of appearance
with the Court prior to the hearing. It is further
ORDERED that Movant’s Motion to Supplement § 2255 Motion (Doc. 809) is DENIED
as time-barred.
SIGNED at Houston, Texas, this 21st day of November, 2017.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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