1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 UNITED STATES OF AMERICA, ) Civil No. 22CV1883-JLS 10 ) Criminal No. 21CR1178-JLS Plaintiff/Respondent, ) 11 ) ORDER DENYING ) PETITIONER’S MOTION 12 v. ) UNDER

and ) DENYING CERTIFICATE OF 13 ) APPEALABILITY OLATUNDE JAMES TEMITOPE ) 14 AKINTONDE, ) ) 15 Defendant/Petitioner. ) ) 16 ) 17 Currently pending before the Court is Petitioner’s Motion to Vacate, Set Aside, or 18 Correct Sentence by a Person in Federal Custody Pursuant to

(ECF No. 19 34). Having considered Petitioner’s motion and the record in this case, the Court will deny 20 Petitioner’s motion. 21 BACKGROUND 22 Petitioner Olatunde James Temitope Akintonde was charged by indictment with one 23 count of distribution of fentanyl in violation of

(a)(1) and one count of 24 distribution of fentanyl resulting in death in violation of

(a)(1) and 25 (b)(1)(C). ECF 1. On July 8, 2021, Petitioner entered a plea agreement and pled guilty to 26 the first count of the indictment, distribution of fentanyl. ECF 17, 18. Petitioner was 27 sentenced on November 24, 2021 to a term of imprisonment of 180 months. ECF 33. In 28 1 his plea agreement, Petitioner waived his rights to appeal and to collaterally attack his 2 conviction and sentence, with the exception that he “may collaterally attack the conviction 3 or sentence on the basis that defendant received ineffective assistance of counsel.” ECF 17 4 at 10. 5 ANALYSIS 6 In his § 2255 motion, Petitioner contends that he was denied effective assistance of 7 counsel because his attorney failed to investigate and present to the court his background 8 and history of substance abuse since he was a teenager. He also contends that his attorney 9 should have brought to the Court’s attention the fact that his criminal history was all drug 10 related. 11 To prevail on an ineffective assistance of counsel claim, a defendant must show that 12 counsel’s performance was deficient and that this deficient performance prejudiced the 13 defendant. Strickland v. Washington,

(1984); United States v. Jeronimo, 14

(9th Cir. 2005). Defense counsel’s conduct is presumed to be 15 reasonable. Strickland,

. 16 Here, Petitioner fails to establish that his counsel’s actions fell below “an objective 17 standard of reasonableness.”

. In the sentencing memorandum filed on behalf of 18 Petitioner, defense counsel did in fact address Petitioner’s history of substance abuse since 19 the age of 11 and requested a downward departure on that basis. ECF 27 at 6-7. Thus, the 20 Court finds no basis to conclude that defense counsel’s performance with respect to the 21 investigation or presentation of Petitioner’s substance abuse history was deficient in any 22 regard. 23 Petitioner also fails to make any showing that he was prejudiced as a result of his 24 counsel’s actions. The Presentence Report also documented Petitioner’s history of 25 substance abuse and the nature of his criminal convictions. ECF 21 at 10-11, 13-14. The 26 Court was aware of the information Petitioner contends it was lacking, and the information 27 was taken into consideration by the Court in determining the appropriate sentence. The 28 sentence imposed in this case fell within the guideline range calculated pursuant to the plea 1 || agreement, and defense counsel vigorously advocated for a sentence well below that range. The sentence ultimately imposed was driven by the severity of the consequences of 3 || Petitioner’s crime, not by any shortcomings of his counsel or lack of mitigation evidence. Accordingly, the Court rejects the contention that Petitioner’s conviction or sentence was 5 || tainted by ineffective assistance of counsel. 6 CONCLUSION 7 Having carefully considered Petitioner’s claims in view of the case files and records, 8 || the Court finds the record sufficiently developed to conclusively show that Petitioner is 9|| entitled to no relief. Accordingly, Petitioner’s Motion to Vacate, Set Aside, or Correct 10 || Sentence by a Person in Federal Custody Pursuant to

is DENIED. 11] Additionally, the Court DENIES Petitioner a certificate of appealability, as Petitioner has 12 || not made a substantial showing that he has been denied a constitutional right. The Clerk 13] shall enter judgment accordingly. 14 IT IS SO ORDERED. 15 DATED: April 4, 2023 17 yest Yamenalh 1 ited States District Judge 19 20 21 22 23 24 25 26 27 28

3 22cv1883; 21cr1178