1To the extent Oladunni listed as a separate ground a claim of “denial of

right to appeal” based upon the court of appeals’ dismissal of his out-of-time

appeal for lack of jurisdiction, such claim does not challenge action by this

Court, and thus must be dismissed. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

 §

VS. § CRIMINAL NO. 4:04-CR-113-Y

 § (CIVIL NO. 4:05-CV-683-Y)

HAKEEM OLADUNNI §

 ORDER DENYING MOTION UNDER 28 U.S.C. § 2255

Now pending before the Court is defendant Hakeem Oladunni’s

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

sentence, accompanied by his declaration under penalty of perjury

under 28 U.S.C. § 1746. The government filed a response, and

Oladunni filed a reply. 

Oladunni seeks relief under 28 U.S.C. § 2255 on two grounds:

that this Court abused its discretion in violation of his right to

due process of law in sentencing him above the guideline range; and

that he was denied the effective assistance of counsel guaranteed

to him by the Sixth Amendment because counsel failed to file a

notice of appeal even though he requested that counsel appeal his

sentence.1 Having carefully considered Oladunni’s motion for relief

under § 2255 and supporting declaration, the government’s response

and reply, the applicable law, and the records of this case,

including the transcripts of the March 28, 2005, and April 18,

2005, sentencing proceedings, the Court determines that the motion

 

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2Due to an error in the original PSR, although the criminal history points

were properly scored at 2 in the criminal history section, a criminal history

category of I was improperly set out in the sentencing-options section. (December

29, 2004 PSR and January 27, 2005 Addendum). This error was expressly rectified

in the March 28, 2005, amended sentencing recommendation and worksheet, and the

Court continued the March 28 sentencing hearing until April 18 in order to allow

defendant additional time to address the effect on the guideline range.

3See United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999)

(citations omitted). 

2

must be denied for the reasons stated in the government’s response

and as set forth herein. 

With regard to Oladunni’s first ground for relief, that this

Court abused its discretion in assessing a sentence higher than the

8-to-14-month guideline range,2

 such claim of misapplication of the

sentencing guidelines is not cognizable on collateral review.3

Furthermore, Oladunni’s challenge is factually incorrect. The Court

did not increase his criminal history category by four levels. The

Court did assess a sentence 10 months above the top end of the

guideline range, or 24 months, but listed in its statement of

reasons for a sentence outside the guidelines (i.e., not a

guideline sentence with an upward departure): 

The nature and circumstances of the offense and the

history and characteristics of the defendant pursuant to

18 U.S.C. § 3553(a)(1) and the need for the sentence

imposed to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense (18 U.S.C. § 3553(a)(2)(A));

to afford adequate deterrence to criminal conduct (18

U.S.C. § 3553(a)(2)(B)); [and] to protect the public from

further crimes of the defendant (18 U.S.C. §

3553(a)(2)(C). 

Additionally, at the sentencing hearing, the Court noted: 

 

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4528 U.S. 470 (2000).

5466 U.S. 668 (1984).

3

This sentence is a non-guideline sentence. The maximum

statutory sentence is five years. A two-year sentence is

fair and reasonable because the defendant caused the loss

of over $25,000. There were many victims. The victims

were greatly inconvenienced by the theft of their

identities, and may fairly be assumed likely to suffer

inconvenience and possibly loss of credit opportunities

because of incorrect credit reports and, most

importantly, because the defendant was convicted in 1999

of a very similar crime in the United States District

Court for the Eastern District of Pennsylvania and given

a lenient sentence of 12 months’ incarceration for a

conspiracy that caused a loss of over $166,000. Clearly,

the 12 months that he received in that case did not

sufficiently impress the defendant of the seriousness and

wrongfulness of his crime. (April 18, 2005, Sentencing

Transcript at 6.) 

 

Oladunni has not shown this Court’s imposition of an outside-theguidelines sentence was an abuse of discretion in violation of his

right to due process of law. 

Next, Oladunni contends that counsel was ineffective for

failing to file a notice of appeal. In Roe v. Flores-Ortega,4 the

Supreme Court applied its Strickland v. Washington,5 deficiencyand-prejudice test to the context of a claim of ineffectiveness on

the basis of an alleged failure to file a notice of appeal. The

deficiency inquiry involves a determination of whether

[C]ounsel has a constitutionally imposed duty to consult

with the defendant about an appeal when there is reason

to think either (1) that a rational defendant would want

to appeal (for example, because there are nonfrivolous

grounds for appeal), or (2) that this particular

 

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6Flores-Ortega, 528 U.S. at 480. 

7Even though Oladunni has not provided specific factual evidence that he

demonstrated to counsel that he was interested in appealing in order to make a

showing under the second Flores-Ortega deficiency alternative.

8Flores-Ortega, 528 U.S. at 484. 

9Id., 528 U.S. at 484 (“If the defendant cannot demonstrate that, but for

counsel’s deficient performance, he would have appealed, counsel’s deficient

performance has not deprived him of anything, and he is not entitled to relief.”)

4

defendant reasonably demonstrated to counsel that he was

interested in appealing.6 

Because there was a “higher-than-guidelines” and “outside-theguidelines” sentence in this case, there is reason to believe a

rational defendant would want to appeal. Thus, under the FloresOrtega framework, the Court concludes that counsel’s alleged

failure to consult appears to be deficient.7

To show prejudice in such circumstances, “a defendant must

demonstrate that there is a reasonable probability that, but for

counsel’s deficient failure to consult with him about an appeal, he

would have timely appealed.”8

 The Court, in Flores-Ortega,

explained that counsel must “actually cause the forfeiture of the

appeal.”9 Although Oladunni states in his declaration that “counsel

failed to file a notice of appeal at my request,” he does not

otherwise state any facts to support this allegation, or to show

that he would have timely appealed. Rather, he signed the “Notice

of Right to Appeal Sentence Imposed After Plea of Guilty.” In that

document, Oladunni acknowledged that, should he desire to appeal,

his notice of appeal had to be filed within ten days of the entry

 

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10Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)(“This Court has made

clear that conclusory allegations of ineffective assistance of counsel do not

raise a constitutional issue in a federal habeas proceeding”), citing Ross v.

Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). 

5

of judgment. In spite of this record of Oladunni’s awareness of

the time to appeal, Oladunni makes no specific factual allegation

that he attempted to contact counsel or the Court, or that he took

any other action to pursue an appeal. He has provided nothing more

than a conclusory allegation, which is not sufficient to make out

a claim.10 Oladunni has not set forth facts to satisfy the

applicable prejudice standard. As such, his claim of ineffective

assistance fails. 

Therefore, Hakeem Oladunni’s motion for relief under 28 U.S.C.

§ 2255 is DENIED.

SIGNED January 31, 2007.

 

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6

 

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