The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Petitioner Oladayo Oladokun moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. (First Motion Under 28 U.S.C. § 2255, Mar. 30, 2012 [ECF No. 47] ("Mot.").) Petitioner claims that his counsel was deficient in failing to inform him that his sentence in this case would run consecutively with the sentence for his supervised release violation in Maryland, as well as failing to advise him of the mandatory two-year minimum incarceration required for aggravated identity theft under 18 U.S.C. § 1028A. (Mot. at 4.) He further argues that the evidence was insufficient to support a conviction for aggravated identity theft. (Mot. at 4.) For the reasons stated below, petitioner's motion will be denied.
On September 28, 2010, petitioner was indicted on one count of conspiracy (Count 1), six counts of bank fraud (Counts 2-7), five counts of mail fraud (Counts 8-12), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A (Count 13). (See Indictment, Sept. 28, 2010 [ECF No. 1].) He was arrested and charged with the thirteen-count indictment on October 27, 2010. (Government's Opposition to Defendant's Motion to Vacate, Oct. 23, 2012 [ECF No. 61] ("Gov. Opp'n") at 1-2.) Pursuant to a plea agreement negotiated by his retained attorney, Richard Basile, petitioner pled guilty to Count 13 and the government moved to dismiss the remaining counts of the indictment. (Gov. Opp'n at 2; Plea Agreement, Feb. 3, 2011 [ECF No. 27].) Petitioner was sentenced to 24 months incarceration, 12 months of supervised release, a $100 special assessment, and restitution in the amount of $262,025.42. (See Judgment, Apr. 4, 2011 [ECF No. 38]; Order Granting Motion to Correct Sentence, Apr. 7, 2011 [ECF No. 40].)
Prior to the events in this case, in 1997 petitioner was convicted of bank fraud and felon in possession of a firearm in United States v. Oladokun, No. 96-0285-AW (D. Md.). (Gov. Opp'n at 3.) He was sentenced to 125 months of imprisonment followed by five years of supervised release. (Id.) Petitioner was released from custody for that offense in 2006. (Id.) In August 2010, the district court in Maryland issued a warrant for petitioner's arrest for violating the terms of his supervised release. (Id. at 4.) The district court in that case sentenced petitioner to 24 months of incarceration, to run consecutive to the term imposed in this case. (Id. at 4.)
Petitioner now brings this motion under 28 U.S.C. § 2255, wherein he claims that he received ineffective assistance of counsel because his trial counsel failed to advise him that (1) his plea agreement would result in a sentence to run consecutively to his sentence for violation of supervised release in Maryland, and (2) that the only method of satisfying the mandatory two-year minimum for aggravated identity theft was by incarceration. (Mot. at 4.) Petitioner further asserts that the evidence was not sufficient to support a conviction for aggravated identity theft. (Id.)
Under 28 U.S.C. § 2255, a prisoner sentenced in federal court may move to vacate, set aside, or correct his sentence if the sentence was imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). The petitioner bears the burden of proving that violation by a preponderance of the evidence. United States v. Dodd, 828 F. Supp. 2d 39, 41 (D.D.C. 2011). This Court must grant an evidentiary hearing on a prisoner's claims "[u]nless the motion and the files and records of the case conclusively show that prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "Even if the files and records of the case do not clearly rebut the allegations of the prisoner, no hearing is required where his claims are 'vague, conclusory, or palpably incredible.'" United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
B.Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a petitioner must make a two-part showing: "[f]irst, the [petitioner] must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). In the case of a guilty plea, in order to show prejudice, the petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the petitioner would have pled not guilty and insisted on going to trial. United States v. Sutton, 803 F. Supp. 2d 1, 5 (D.D.C. 2011) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Petitioner first alleges that counsel failed to advise him that the sentence in this case would run consecutively to the sentence for his supervised release violation in Maryland, and in fact suggested that the plea deal in this case would "roll" all of the sentences into one. (Mot. at 4; Petitioner's Sworn Affidavit, Feb. 21, 2012 [ECF No. 49] ("Aff.") at 3.)
This allegation is contradicted by the record. As an initial matter, this Court sentenced petitioner over a month before he received his sentence in Maryland, and the two sentences were given independently of one another. The plea agreement signed by petitioner clearly stated that petitioner would be "sentenced on the violation of supervised release by the appropriate judge in the District of Maryland." (Plea Agreement at 1.) Thus, petitioner's counsel stated in his declaration that he "had no idea what sentence of incarceration, if any," the judge in Maryland would impose, and did not give petitioner any reason to believe otherwise. (Basile Decl. ¶ 5.)
Additionally, regardless of what sentence the District of Maryland chose to impose for petitioner's supervised release violation, it was clear that the sentence would run consecutively to the one imposed by this Court. For example, at a status conference held on January 31, 2011-in petitioner's presence-petitioner's counsel confirmed the Court's understanding that petitioner's sentence for his supervised release violation in the District of Maryland would be "on top of" whatever sentence was imposed by this Court. (January 31, 2011 Status Conference ("1/31/11 Tr.") at 28.) This was reiterated in the plea agreement signed by petitioner, which stated that he understood that 18 U.S.C. § 1028A carries a "mandatory minimum of two years imprisonment consecutive to any time." (Plea Agreement at 1 (emphasis added).) Thus, petitioner was clearly informed that the two sentences would run consecutively, and there was nothing deficient about his counsel's performance.
This evidence also establishes that petitioner was not prejudiced by his counsel's advice. Petitioner "cannot argue that he would have proceeded to trial had he known [that the sentences would run consecutively] because the record reflects that he was made aware of the [consecutive nature of the sentences] by his attorney (and also the Court), yet he pleaded guilty in any event." Sutton, 803 F. Supp. 2d at 5.
Regardless, even if counsel's performance had been deficient, petitioner has not established that he was prejudiced by his counsel's advice because he has not made an adequate showing that he would have pleaded not guilty and insisted on going to trial. Petitioner stated that he "would rather have gone to trial instead of ending up with the same sentence from the outset." (Aff. at 4.) This position rests on the faulty premise that petitioner would have received the same sentence if he had gone to trial and been found guilty. To the contrary, however, petitioner could have been tried on all 13 counts, not just the aggravated identity theft count to which he pled guilty. "To measure the reasonable probability that [petitioner] would have proceeded to trial, all counts that [he] would have faced must be considered and not just the counts to which [he] pled guilty." United States v. Pollard, 602 F. Supp. 2d 165, 170 (D.D.C. 2009) (citing In re Sealed Case, 488 ...