Submitted: May 16, 2018
from United States District Court for the District of
Minnesota - Minneapolis
BENTON, KELLY, and STRAS, Circuit Judges.
Olubunmi Adejumo moved under 28 U.S.C. § 2255 to vacate
his sentence for bank fraud and aggravated identity theft.
His theory was that his counsel was ineffective by failing to
do two things that a reasonable attorney would have done:
advise him of the consequences of testifying at a
pretrial-release revocation hearing and object to the amount
of loss suffered by the victims of the fraud. The district
court denied both claims without holding an
evidentiary hearing. We affirm.
as well as several accomplices, devised a scheme to use
stolen identity information to defraud several major banks
out of millions of dollars. Rather than proceed to trial,
Adejumo pleaded guilty to one count of bank fraud and one
count of aggravated identity theft. 18 U.S.C. §§
1028A, 1344. In the plea agreement, he admitted "that
[he and his accomplices] obtained or attempted to obtain in
excess of $1, 000, 000 in fraudulent proceeds" and that
he "believe[d]" his offense level under the
Sentencing Guidelines should be increased by sixteen levels
"because the loss amount was more than $1, 000, 000 but
less than $2, 500, 000." The plea agreement also
recommended a reduction for acceptance of responsibility.
district court initially allowed Adejumo to remain free
pending sentencing. After Adejumo was arrested for allegedly
assaulting his girlfriend, however, the government asked the
court to reconsider its decision and place him in prison. At
the hearing to consider the government's request, Adejumo
denied the assault. The magistrate judge who presided over
the hearing specifically stated that he did not believe
Adejumo and revoked his release.
consequences of Adejumo's decision to testify did not end
there. At sentencing, the district court concluded that
Adejumo had committed perjury at the revocation hearing. The
court then cited the perjury finding as reason to increase
Adejumo's offense level for obstruction of justice,
U.S.S.G. § 3C1.1, and deny the recommended reduction for
acceptance of responsibility, id. § 3E1.1. The
court also increased Adejumo's offense level based on the
loss amount specified in the plea agreement, which the court
concluded was binding on the parties. Id. §
2B1.1(b)(1). The court sentenced Adejumo to 124 months in
prison, the approximate midway point of his advisory
Guidelines range. We affirmed Adejumo's sentence on
direct appeal. See United States v. Adejumo, 772
F.3d 513, 534-38 (8th Cir. 2014).
his conviction became final, Adejumo moved to vacate his
sentence under 28 U.S.C. § 2255(a). In the motion, he
presented five theories in an effort to persuade the district
court that he had received ineffective assistance of counsel.
The district court denied the motion without holding an
evidentiary hearing. We granted him a certificate of
appealability on two issues: whether defense counsel
"was ineffective by failing to advise . . . Adejumo
[about] the risks of testifying at the" hearing and
whether defense counsel "provided ineffective assistance
. . . in failing to challenge or object to the loss amount
attributable to . . . Adejumo." Those are the only two
issues before us.
28 U.S.C. § 2255, prisoners can challenge their
sentences by filing a motion alleging ineffective assistance
of counsel. See, e.g., Calkins v. United
States, 795 F.3d 896, 897 (8th Cir. 2015). Ordinarily,
the district court must hold an evidentiary hearing and make
factual findings before ruling on the merits of the motion.
28 U.S.C. § 2255(b). A hearing is unnecessary, however,
if "the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief
. . . ." Id.
prevail on his ineffective-assistance-of-counsel claims,
Adejumo must show that counsel's performance "fell
below an objective standard of reasonableness" and that
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). When
evaluating ineffective-assistance claims, a court "must
indulge a strong presumption that counsel's conduct
[fell] within the wide range of reasonable professional