James O. Ademiju v. United StatesJames O. Ademiju v. United States
Aрpeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 18-cv-5583 — Robert W. Gettleman, Judge.
KANNE,
I. BACKGROUND
James Ademiju immigrated to the United States in 2001 and resided here for many years on a green card. In 2011, he became involved in a scheme to defraud
Ademiju pled guilty to one count of healthcare fraud,
At sentencing a year later, the district court heard argument from both sides about the appropriate term of imprisonment. Ademiju personally and through counsel admitted that his ability to stay in the United States was not assured. His counsel told the court, “I‘m not an immigration specialist ... . But it‘s my understanding that a sentence of — any sentence of less than one year — so if you were to sentence him to 364 days — I think the consequences for him in immigration court are very significant. I think at that point he would be at least eligible for a waiver.”
These representations about the potential immigration consequences turned out to be incorrect, but no one in the courtroom appeared to be aware of that. The government had no objection to Ademiju‘s counsel‘s recommendation, and the district court sentenced Ademiju to eleven months’ imprisonment. The court also ordered $1.5 million in restitution. Ademiju‘s terms of supervised release required him to surrender to the Department of Homeland Security for a determination of his deportability. The court entered final judgment on April 6, 2017, and Ademiju did not appeal. Hе reported to prison on August 1, 2017.
In late 2017, Ademiju claims that he asked his defense counsel if there was any way to change his sentence. His counsel allegedly replied thаt the judgment was final. They continued to communicate through June 2018.
On June 21, 2018, Ademiju was released from federal prison and transferred into the custody of U.S. Immigration and Customs Enforcement. By August 2018, he retained an immigration attorney who informed him that the terms of his plea agreement — specifically the offense of conviction and the stipulated loss amоunt — subjected him to mandatory deportation.
On August 8, 2018, Ademiju filed a
The government moved to dismiss the
The district court rejected Ademiju‘s tolling arguments and granted the government‘s motion to dismiss. Ademiju now appeals.
II. ANALYSIS
Motions under
“[E]quitable tolling is an extraordinary remedy that is ‘rarely granted.‘” Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)). “A habeas petitioner is entitled to equitable tolling only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.‘” Id. (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The еxtraordinary-circumstance prong is met “only where the circumstances that caused a litigant‘s delay are both extraordinary and beyond [his] control.” Id. (alteration in original) (quoting Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016)).
Where, as herе, a district court declines to apply equitable tolling to a limitation period, our review is only for abuse of discretion. Mayberry v. Dittmann, 904 F.3d 525, 530 (7th Cir. 2018).
Ademiju argues that three combined factors in his case warrant equitable tolling. First, both before and at sentencing, his counsel gave him erroneous legal advice about his deportability. Second, after sentencing, his counsel erroneously advised him that he could not challenge the final judgment. And third, Ademiju‘s prison had an inadequate law library that hindered his ability to research his options because most of the resources were in Spanish, which he does not understand.
We do not agree that these proffered factors, considered alone or together, demand equitable tolling to such a degree that the district court abused its discretion in declining to apply it.
Regarding the first and second factors, incorrect legal adviсe generally does not by itself trigger equitable tolling. See Lee v. Cook County, 635 F.3d 969, 973 (7th Cir. 2011) (“A lawyer‘s ineptitude does not support equitable tolling.“). The Supreme Court has explained that “‘a garden variety claim of excusable neglect’ ... does not warrant equitable tolling.” Holland, 560 U.S. at 651-52 (quoting Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
At most, Ademiju has alleged that his attorney was negligent. So even though there is no question that Ademiju‘s counsel at sentencing was wrong about how the sentence would affect Ademiju‘s immigration status,1 and even though
Ademiju‘s counsel did not inform Ademiju of the possibility of collateral review, counsel‘s conduct does not rise to the level of an extraordinary circumstance that prevented Ademiju from timely filing.
In rebuttal, Ademiju argues that being misled by his attorney was equivalent to (or worse than) attorney abandonment, which sometimes justifies equitable tolling,
Ademiju‘s third argument — that his prison‘s subpar law library prevented him from timely filing his motion — likewise fails to support the extraordinary relief of equitable tolling. Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (“[A] prisoner‘s limited access to the prison law library is not grounds for equitable tolling.“) (citing Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006)).
Ultimately, nothing about this case is extraordinary. Ademiju was clearly warned in his plea agreement that “[r]emoval and other immigration consequences are the subject of a separate proceeding,” and he acknowledged that he “[understood] that nо one, including his attorney or the Court, c[ould] predict to a certainty the effect of his conviction on his immigration status.” Nevertheless, he “want[ed] to plead guilty regardless of any immigration consequences that his guilty plea may entail, even if the consequence is his automatic removal from the United States.”
If that weren‘t clear enough, the district judge warned Ademiju at his plea hearing that entering a guilty plea “might also mean that your immigration status could be affected, and you might have to be either depоrted or returned to your home country. Do you understand that, sir?” Ademiju responded that he understood. Nothing in this case warrants equitable relief from the consequences that Ademiju admitted he might suffer.
Finally, we reject Ademiju‘s contention that the district court should have held an evidentiary hearing before denying his motion. A hearing is unnecessary where “the motiоn and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
III. CONCLUSION
Ademiju failed to estаblish that extraordinary circumstances excuse his untimely filing, and the district court did not abuse its discretion in refusing to toll the statute of limitations. We AFFIRM.