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Odukoya v. United States

United States District Court, N.D. Georgia, Atlanta Division

June 21, 2017

MICHAEL ADE ODUKOYA, Movant,
v.
UNITED STATES OF AMERICA, Respondent. CIVIL No. 1:16-CV-1468-AT-JFK

         MOTION TO VACATE 28 U.S.C. § 2255

          ORDER ADOPTING MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          AMY TOTENBERG UNITED STATES DISTRICT JUDGE

         The matter is before the Court on Petitioner's counseled 28 U.S.C. § 2255 motion to vacate [Doc. 237]; the Magistrate Judge's Final Report and Recommendation, which recommends that the motion and a certificate of appealability (“COA”) be denied [Doc. 246]; and Movant's objections [Doc. 248].

         In reviewing a Magistrate Judge's Report and Recommendation, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). The District Judge must “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation and internal quotation marks omitted). Absent objection, the district judge “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, ” 28 U.S.C. § 636(b)(1), and “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, ” Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b).

         I. Discussion

         Movant, indicted on forty-five counts of fraud, (Indictment, Doc. 10), and represented by R. Gary Spencer, pleaded guilty to Count One, conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349. (See Minute Entry, Doc. 175; Guilty Plea and Plea Agreement, Doc. 175-1.) The Court subsequently denied Movant's motion to withdraw his guilty plea and imposed a 140-month sentence. (See Mot. to Withdraw, Doc. 181; Minute Entry, Doc. 184; J., Doc. 197.) Movant appealed, and the Eleventh Circuit Court of Appeals granted counsel's motion to withdraw, found that an i n d ependent exami n at ion of the entire r e cord rev ea led no arguable issues of merit, and affirmed the judgment against Movant. (USCA Op., Doc. 231.)

         Movant now raises two grounds for collateral relief: ineffective assistance of counsel for failing (1) to file the motion to withdraw the guilty plea when initially requested by Movant and (2) to prepare adequately for trial and advising Movant to plead guilty, which resulted in an invalid guilty plea. (Mot. to Vacate at 5-6, Doc. 237.) The Court addresses the grounds in the same sequence as addressed by the Magistrate Judge.

         A. Ground Two

         The Magistrate Judge summarized ground two as follows -

Movant . . . asserts that his guilty plea was involuntary because counsel failed to find potential witnesses and that Movant felt coerced into pleading guilty rather than going to trial unprepared. Specifically, Movant identifies the lack of [Derego] George as a witness and contends that counsel failed to pursue the procedures that were available for attempting to depose George. Movant states that but for counsel's failure to adequately prepare for trial and locate potential witnesses, he would not have pleaded guilty but would have proceeded to trial.

(R&R at 7, Doc. 246 (citations omitted).) After reviewing the legal standard under Strickland v. Washington, 466 U.S. 668, 687 (1984), the Magistrate Judge found as follows -

Movant does not identify what counsel should have done differently to prepare for trial and locate potential witnesses other than to state that counsel failed to locate and obtain George as a witness and failed to utilize available procedures for deposing George. Although Petitioner asserts that counsel was ineffective for failing to depose George, Petitioner through his current counsel also has failed to depose George or provide any concrete proffer as to what George - or any other witness - may have testified to at trial. See Gilreath v. Head, 234 F.3d 547, 552 n.12 (11th Cir. 2000) (stating that if a petitioner complains of counsel's failure to obtain witnesses, he must “show that witnesses not presented at trial actually were available and willing to testify at time of trial” (citing Horsley v. State of Ala., 45 F.3d 1486, 1494-95 (11th Cir. 1995)); see also Hill v. Moore, 175 F.3d 915, 923 (11th Cir. 1999) (holding that absent proffer of evidence, the petitioner could not show prejudice based on counsel's failure to introduce such evidence). Absent any concrete showing as to what further effort by counsel would have revealed, Movant cannot demonstrate that there is a reasonable probability that different or additional effort by counsel would have (1) changed counsel's advice or (2) changed the circumstances faced by Movant when he made his plea decision - such that there is a reasonable probability that Movant would have proceeded to trial on all forty- five charges. Movant also fails to demonstrate that there is any reasonable probability that he would have achieved a more favorable outcome had he gone to trial on all forty-five counts. Ground Two fails.

(R&R at 10-11 (emphasis added).)

         Movant objects to the finding, bolded above, that he “cannot demonstrate that there is a reasonable probability that different or additional effort by counsel would have (1) changed counsel's advice or (2) changed the circumstances faced by Movant when he made his plea decision. . . .” (Objections at 3, Doc. 248.) Movant asserts (1) that he was forced to plead guilty because counsel failed to find potential witnesses, adequately prepare for trial, or provide Movant with an explanation of any trial defense, (2) that the government has not provided an affidavit to refute his claim that counsel did not explain any trial defense, (3) that ...


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