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United States v. Aiyewa

United States District Court, S.D. Texas, Houston Division

April 26, 2018

UNITED STATES OF AMERICA
v.
TOKUNBO PATRICK AIYEWA

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         Tokunbo Patrick Aiyewa pled guilty to one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, and to one count of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2. This Court sentenced him to a 39 month term of imprisonment and three years of supervised release, and ordered him to pay $20, 957.43 in restitution. See Judgment (Doc. # 82). This case is before the Court on Aiyewa's motion to vacate, set aside, or correct his sentence (Doc. # 90), the government's response (Doc. # 105), and Aiyewa's reply (Doc. # 112). Having carefully considered the pleadings, all the arguments and authorities submitted by the parties, and the entire record, the Court is of the opinion that the Aiyewa's motion should be denied in part, and that an evidentiary hearing should be held as to one of Aiyewa's claims for relief.

         I. Background

         Aiyewa was indicted on three counts pertaining to a scheme to install skimming devices on ATMs to steal ATM users' account information. Aiyewa then used that information to purchase prepaid debit cards. Aiyewa pled guilty to one count of conspiracy to commit bank fraud, and one count of aggravated identity theft.

         II. Applicable Legal Standards

         Aiyewa brings this motion under 28 U.S.C. § 2255, which provides for relief “for errors that occurred at trial or sentencing.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). A movant may obtain relief by showing

that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .

28 U.S.C.A. § 2255(a).

         III. Analysis

         Aiyewa's motion asserts four claims of ineffective assistance of counsel. In addition, one of the claims asserts that his guilty plea was not knowing and voluntary, and lacks a factual basis.

         A. Guilty Plea

         In his first claim for relief, Aiyewa contends that there was no factual basis for the charge of aggravated identity theft, and that his counsel was ineffective for failing to oppose the inclusion of this count in the plea agreement.

         1. Waiver

         As a preliminary matter, Aiyewa's plea agreement expressly waives his right to collaterally attack his sentence or conviction under section 2255. See Plea Agreement (Doc. # 57) at 3-4. Aiyewa now argues that the agreement is ambiguous and, under established principles of contract law, the alleged ambiguity should be construed against the drafter, i.e., the government.

         The agreement sets out the statutes giving Aiyewa the right to appeal a conviction or sentence, and to collaterally attack a conviction or sentence. Id. The agreement then states that

Defendant knowingly and voluntarily waives the right to appeal or “collaterally attack” the conviction and sentence, except that Defendant does not waive the right to raise a claim of ineffective assistance of counsel on direct appeal, if otherwise permitted, or on collateral ...

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