United States of America v. Odubajo et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
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CASE NO. 	1:22-CR-0231-1
JUDGE DAN AARON POLSTER
v.
SOLOMON ODUBAJO,
Defendant-Petitioner.
OPINION & ORDER
On November 10, 2025, Defendant-Petitioner Solomon Odubajo filed a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255. ECF 157. The Government filed a
response in opposition on December 12, 2025. ECF 158. Odubajo’s reply in support of his motion
was filed on January 2, 2026. ECF 160. As discussed herein, because the filings and record show
that Odubajo is not entitled to § 2255 relief on any of the four grounds he raises, his motion is
DENIED.
I. 	BACKGROUND
On April 6, 2022, Task Force Officer Michael Twombly of the U.S. Postal Inspection
Service (“USPIS”) applied for and obtained a search warrant for a USPS parcel that had been
mailed from Arizona to an address on Granger Road in Garfield Heights, Ohio. The search warrant
was granted the same day, and inside the parcel TFO Twombly found a little over one kilogram of
fentanyl pills concealed inside a wet/dry vacuum cleaner. ECF 1-1, ¶ 9 (TFO Twombly’s affidavit
supporting the criminal complaint). A review of video surveillance footage from the Arizona post
office showed Odubajo as the individual mailing the parcel. Id., ¶ 27.
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Odubajo later traveled to Ohio and, on April 14, 2022, drove his co-defendant, Laysalle
Scales, Jr., to the post office to retrieve the parcel. Id., ¶ 31. Then, he attempted to evade police by
driving more than 100 mph on I-90. Id., ¶¶ 33-34. After Odubajo and Scales were arrested, law
enforcement officers searched Odubajo’s vehicle. There, they found a loaded handgun and $17,500
in cash. A later search of a residence where Odubajo was staying uncovered additional fentanyl
pills and cash.
A criminal complaint was filed against Odubajo the same day he was arrest—April 14,
2022. See ECF 1. An indictment was later filed on May 11, 2022, ECF 1,1 with superseding
indictments coming on November 30, 2022, ECF 59, and March 23, 2023, ECF 89. Following a
jury trial in 2023, Odubajo was convicted of multiple drug trafficking and firearm counts. ECF
117. This Court sentenced him to 248 months of imprisonment. ECF 144. Odubajo appealed his
conviction and sentence, which the Sixth Circuit affirmed. ECF 152. The Supreme Court denied
his petitioner for certiorari. ECF 154.
II. LEGAL STANDARD
In accordance with 28 U.S.C. § 2255(a), a prisoner in custody may move the sentencing
court to vacate the sentence on the grounds that it was “imposed in violation of the Constitution or
laws of the United States . . . or is otherwise subject to collateral attack.” In order to obtain relief
under § 2255, a prisoner must demonstrate a constitutional error, a sentence that exceeds statutory
limits, or an error of fact or law “so fundamental as to render the entire proceeding invalid.” Pough
v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
As a general rule, claims not raised on direct appeal are procedurally defaulted and may
not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual
1 Odubajo’s initial indictment was inadvertently indicated as ECF 1, when it should have been ECF 11. However, to
avoid any confusion, the Court uses the ECF document number actually associated with the filing.
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prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley
v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68
(1982). However, an ineffective assistance of counsel claim is not subject to the procedural default
rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, regardless of whether the petitioner could have raised the claim
on direct appeal. Id.
To establish ineffective assistance of counsel, a petitioner is required to demonstrate: 1)
that counsel’s performance was so deficient that counsel did not actually perform as counsel; and
2) that his defense was so prejudiced by counsel’s conduct that it is reasonably probable that the
outcome of the case would have been different but for the ineffective assistance. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). “[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (quotation omitted). Conclusory allegations that fail
to articulate counsel’s deficiencies or how they prejudiced the case are insufficient to sustain a
claim of ineffective assistance of counsel on a § 2255 motion. Ushery v. United States, No. 20-
5292, 2020 U.S. App. LEXIS 21840, at *3–4 (6th Cir. July 14, 2020). The focus is on the adequacy
of counsel’s actual performance, not hindsight potential for improvement. Coe v. Bell, 161 F.3d
320, 342 (6th Cir. 1998). The Court must give deference to an attorney’s subjective strategic
decisions, unless such a decision is so clearly unreasonable that no competent lawyer would have
done the same. See Strickland, 466 U.S. at 690-91; see also Wiggins v. Smith, 539 U.S. 510, 521-
22 (2003); Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
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The right to effective assistance of counsel also applies on direct appeal. But appellate
counsel is only expected to raise the arguments most likely to succeed. Davila v. Davis, 582 U.S.
521 (2017). Indeed, the process of “winnowing out weaker arguments on appeal and focusing on
those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective
appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986). Thus, “[c]ounsel’s failure to raise
an issue on appeal amounts to ineffective assistance only if a reasonable probability exists that
inclusion of the issue would have changed the result of the appeal.” Henness v. Bagley, 644 F.3d
308, 317 (6th Cir. 2011). And even where a defendant can show a reasonable possibility that they
would have prevailed on an unraised appellate claim, “the court still must consider whether the
claim’s merit was so compelling that the failure to raise it amounted to ineffective assistance of
appellate counsel.” Id.
III. ANALYSIS
A. Signature
As a preliminary matter, the United States argues that Odubajo’s motion must be dismissed
due a procedural deficiency with the signature. Under the Federal Rules Governing Section 2255
Proceedings, “[t]he motion must . . . (5) be signed under penalty of perjury by the movant or by a
person authorized to sign it for the movant.” Rule 2(b)(5). Likewise, by statute, a petition for
habeas relief must be “signed and verified by the person for whose relief it is intended or by
someone acting in his behalf.” 28 U.S.C. § 2242. The standard for filling under the “acting on his
behalf” or “next friend” provision is high; as the Sixth Circuit has explained,
In order to act on a prisoner's behalf, a putative next friend must
demonstrate that the prisoner is unable to prosecute the case on his
own behalf due to “inaccessibility, mental incompetence, or other
disability” and that the next friend is “truly dedicated to the best
interests of the person on whose behalf he seeks to litigate.”
Whitmore v. Arkansas, 495 U.S. 149, 163-64, (1990); see also West
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v. Bell, 242 F.3d 338, 341 (6th Cir.2001); Franklin v. Francis, 144
F.3d 429, 432 (6th Cir.1998). The putative next friend must clearly
establish “the propriety of his status” in order to “justify the
jurisdiction of the court.” Whitmore, 495 U.S. at 164. Standing to
proceed as next friend on behalf of a prisoner “is by no means
granted automatically to whomever seeks to pursue an action on
behalf of another.” Id. at 163.
Tate v. United States, 72 F. App’x 265, 266 (6th Cir. 2003). “The burden is on the next friend
clearly to establish the propriety of [their] status and thereby justify the jurisdiction of the court.”
Franklin v. Francis, 144 F.3d 429, 432 (6th Cir. 1998).
Here, the 2255 motion was not signed by Odubajo or anyone listed as his attorney of record.
Rather, it was signed by “Alana Guzman,” who states that she is Odubajo’s daughter. Odubajo’s
pre-sentence report confirms that Alana Guzman is his adult daughter, though there is no record
of her as a licensed attorney in the state of Ohio. ECF 125. According to Guzman, Odubajo “is not
signing because he cannot, he is in prison in a different state and I am dropping off papers to be
filed on his docket.” ECF 157. While it is true that Odubajo is incarcerated in a different state, the
Government argues that this is not such an obstacle as to reach the level of “inaccessibility” under
the statute. Indeed, Odubajo has made pro se filings before in this case. See, e.g., ECF 41
(interlocutory pro se appeal while pending trial). Further, since inmates only get one opportunity
to litigate a post-conviction motion, such as a 2255 motion, before facing more stringent filing
conditions for subsequent motions, it is important to confirm that Guzman is, indeed, asking on
Odubajo’s behalf.
However, Odubajo confirmed in his reply in support that he authorized the filing and
ratified that motion. ECF 160. Accordingly, the Court need not address this procedural issue as it
is moot.
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B. Merits
On November 10, 2025, Odubajo filed the instant 28 U.S.C. § 2255 motion to vacate, set
aside, or correct sentence. ECF 157. In his motion, Odubajo cites four grounds for relief: (1)
ineffective assistance of counsel during the pretrial phase; (2) ineffective assistance of counsel
during trial; (3) “Denial of Due Process & 6th Amendment Rights by the District”; and (4)
ineffective assistance of counsel on appeal. There is much overlap between these grounds,
however, as many of the issues raised by Odubajo spanned multiple stages of the proceeding.
Accordingly, the Court finds it more efficient to address Odubajo’s claims by issue, rather than by
stage of proceeding.
Odubajo first argues that his counsel was allegedly ineffective for not seeking suppression
of the parcel warrant “based on the warrant’s lack of specific time as set forth in Fed. R. Crim. P.
41(e)(2)(A)(i).” Criminal Rule 41 requires that a search warrant “command the officer to . . .
execute the warrant within a specified time no longer than 14 days[.]” Fed. R. Crim. Pro.
41(e)(2)(A)(i).” Odubajo cites to United States v. Bailey, 628 F.2d 938, 945-46 (6th Cir. 1980) in
support of his position, but his reliance is misplaced. The Bailey court found that the absence of a
specified time limit on the warrant made the warrant ineffectual “[b]ecause the warrant permitted
surveillance of the movements of defendants for an indefinite period of time[.]” Id. at 945.
Conversely, the warrant in this case involved no ongoing surveillance or monitoring of otherwise
private conduct; rather, it concerned the one-time opening and search of a package.
The Court agrees with the Government that this omission is ministerial in nature, especially
given that the warrant was executed the same day it was issued. Cf. United States v. Searp, 586
F.2d 1117, 1125 (6th Cir. 1978) (“(V)iolations of Rule 41 alone should not lead to exclusion unless
(1) there was “prejudice” in the sense that the search might not have occurred or would not have
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been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate
disregard of a provision in the Rule.” (quoting United States v. Burke, 517 F.2d 377, 386-87 (2d
Cir. 1975)). Odubajo has put forth no evidence how the failure to include a date in the “execute
by” box might have prejudiced him, nor has he shown any evidence that law enforcement were
acting in bad faith through that omission. A lawyer is not required to make frivolous arguments
merely because his client requests that he do so. Without any possible basis for a potential
suppression remedy, this claim fails the Strickland test.
Odubajo also claims that his counsel was ineffective at the pretrial stage because counsel
“failed to seek recusal of Judge.” ECF 157 at 5. According to Odubajo, this Court demonstrated a
bias and “predisposition to deny a claim that was not presented to Court” regarding the timing of
the execution of a search warrant at a home. Id. The standard for judicial recusal under 28 U.S.C.
§ 455 is whether, under the circumstances of the case, a reasonable, objective person knowing all
the circumstances would have questioned the Court’s impartiality. See Easley v. Univ. of Michigan
Bd. of Regents, 906 F.2d 1143, 1146 (6th Cir. 1990). Though Odubajo accurately quotes from the
July 14, 2022, transcript in his motion and reply, he pulls these quotes out of the greater context
of the proceeding. Placing these quotes in their proper context, as required when evaluating
potential recusal under § 455, it becomes clear that these comments are not evidence of bias or
partiality, but rather an advisement by the Court that, if the Government was able to support its
description of the search with evidence at a suppression hearing, Odubajo would likely lose that
suppression claim.2 And “[a] judge's ordinary efforts at courtroom administration—even a stern
and short-tempered judge's ordinary efforts at courtroom administration—remain immune.” Liteky
2 Indeed, the Government’s evidence at the suppression hearing supported its description of exigent circumstances
that led law enforcement officers to enter the house before the magistrate issued the search warrant. This Court denied
the motion to suppress on that ground, and the Sixth Circuit affirmed the exigent circumstances ruling. United States
v. Odubajo, No. 23-3654, 2024 WL 4368079, at *4 (6th Cir. June 12, 2024), cert. denied. 145 S.Ct. 559 (Mem).
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v. United States, 510 U.S. 540, 556 (1994); see also id. at 555-56 (“Not establishing bias or
partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that
are within the bounds of what imperfect men and women, even after having been confirmed as
federal judges, sometimes display. (emphasis in original)). This claim also fails the Strickland test.
The next claim is based on counsel’s failure to object to or move for dismissal of Count 5,
possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A).
Odubajo argues that his counsel was ineffective because he “failed to challenge the sufficiency of
the evidence supporting the 924(c) firearm charge” since “[t]rial testimony established that the
firearm was located in an inaccessible trunk, unrelated to any drug-trafficking conduct.” ECF 157-
1 at 5. This ground fails on its face, as Count 5 was the subject of Odubajo’s mid-trial Rule 29
motion for a judgment of acquittal. See ECF 145, Trial Tr. 160:22–161:4. By definition, a Rule 29
motion challenges the sufficiency of the evidence, as the motion is arguing that the Government
has failed to meet their burden of production such that a reasonable juror could find the defendant
guilty beyond a reasonable doubt. In his reply, Odubajo claims that the issue is that “trial counsel
failed to advance a targeted Rule 29 argument” on the “in furtherance of” element of Count 5, as
well as “failed to request a limiting instruction distinguishing mere possession from facilitative
use.” ECF 160 at 4. It is these two failures, he argues, “foreclosed meaningful appellate review.”
Id. Yet how “targeted” or detailed an argument is has no bearing on whether or not the issue is
preserved for appeal. What matters “[t]o properly preserve a sufficiency of the evidence issue for
appeal, [is that] defense must make a motion for a judgment of acquittal at the end of the
prosecution's case-in-chief and at the close of evidence.” United States v. Sease, 659 F.3d 519, 522
(6th Cir. 2011) (quotation omitted). If the defense declines to present any evidence, then these
points are one and the same, and there is no “renewal” of the motion to be made. See United States
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v. Common, 563 F.App’x 429, 432 (6th Cir. 2014) (noting that the rationale of the waiver rule
“was that the presentation of a defense served as a withdrawal of the acquittal motion,” so renewal
is not necessary if the defendant offers no evidence and thus does not withdraw his original
acquittal motion). The trial transcript makes plain that trial counsel did exactly this; accordingly,
trial counsel was not ineffective.
Odubajo also claims that his appellate counsel was ineffective when he failed to raise the
sufficiency issue on direct appeal. But Odubajo fails to provide any explanation for how “inclusion
of the issue would have changed the result of the appeal,” let alone an explanation establishing a
reasonable probability of success. Henness, 644 F.3d at 317. Thus, this claim must also fail.
Odubajo next claims that his counsel was ineffective for not raising a vindictive
prosecution claim about the superseding indictment that added counts related to his possession of
the firearm in his vehicle. In doing so, he relies on the Government’s assertion at the November 8,
2022, pretrial hearing that “[i]f the defendant does not accept the plea agreement, the Government
will pursue a superseding indictment that includes the Section 924(c) firearm charge.” ECF 157-1
at 6 (citing ECF 69, Tr. 3-5). He also claims that the Government added these later firearm charges
(Counts . However, the justification is in the same pretrial hearing transcript that Odubajo relies
on. Just a few moments after what Odubajo identifies as the key quote, the Government explains
that “[w]e didn’t initially charge the gun but we did later obtain some DNA evidence on it,” which
would serve as the basis for the new felon in possession charges. ECF 69, Tr. 4:3-11. This exact
kind of scenario is precisely what superseding indictments are meant for. Cf. United States v.
Suarez, 263 F.3d 468, 480 (6th Cir. 2001) (“If the prosecution can show that the additional charges
were not brought earlier because they were based on new evidence, it will successfully rebut a
showing of vindictiveness.”). Even if the Government had the DNA evidence available at the time
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it first sought the indictment, “holding some charges in abeyance as an inducement during plea
bargaining . . . is a permissible form of plea bargaining, if the additional charges are supported by
probable cause.” Id. And since Odubajo makes no argument that any of the charges were not
supported by probable cause, this claim, too, must fail.
Odubajo’s next claim is that “[d]uring cross-examination Agent Twombly admitted that
the parcel was opened before the magistrate judge signed the search warrant, yet counsel failed to
exploit this testimony or argue any exception to the warrant requirement.” ECF 157-1 at 8. This
claim is plainly bellied by the record, which shows that Odubajo’s counsel made this exact
argument at the suppression hearing. See ECF 66, Tr. 86:4-87:4; see also ECF 30 at 6-7 (Odubajo’s
motion to suppress the parcel). The same issue was raised again on direct appeal, where the Sixth
Circuit affirmed this Court’s ruling that the warrant issued when the magistrate judge told the
officer by phone, “I approve the warrant,” even if the document itself had not yet been docketed
by the magistrate judge’s deputy. See Odubajo, No, 23-3654, 2024 WL 4368079, at *2. Since this
issue was clearly fully litigated, it cannot be an instance of ineffective assistance of counsel.
Next, Odubajo claims that he was denied his right to self-representation when, after asking
at the October 25, 2022, pretrial hearing if he could “go pro se,” this Court “discouraged [him]
from representing himself.”3 ECF 157-1 at 11. A defendant has a constitutional right to “proceed
without counsel when [they] voluntarily and intelligently elect[] to do so.” Faretta v. California,
422 U.S. 806, 807 (1975). But “[a]s the Faretta opinion recognized, the right to self-representation
is not absolute.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015). A defendant’s waiver of the
right to counsel must be made “in a timely manner” and be “knowingly and voluntarily.” Id.
3 Though Odubajo’s motion says it was at the November 8, 2022, pretrial hearing, the quote referenced actually comes
from the October 25, 2022, pretrial hearing. In order to avoid any confusion the Court will use the correct date for the
quote.
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Accordingly, before granting a defendant’s request to proceed pro se, a district court should engage
in a Faretta colloquy with the defendant. See United States v. Cromer, 389 F.3d 662, 680 (6th Cir.
2004). But the Sixth Circuit has clarified that “Faretta procedures are only required when a
defendant has clearly and unequivocally asserted his right to proceed pro se[.]” Id. at 682
(emphasis added). Further, “[a]lthough the Supreme Court has required such an inquiry before
granting a self-representation request— which is, in effect, a waiver of the right to counsel—it has
not required a court to inquire before denying a request as untimely.” Id. at 678 (emphasis in
original). Thus, “[h]abeas relief is not warranted on the ground that the trial court failed to conduct
an inquiry.” Id.
In support of his claim, Odubajo cites to Moore v. Haviland, 531 F.3d 393, 302-03 (6th
Cir. 2008), arguing that “a court’s failure to rule on an unequivocal Faretta request—particularly
where the court actively discourages the right—violates” his rights. ECF 160 at 6. However, Moore
is readily distinguishable. In Moore, the defendant made clear his desire to proceed pro se both
orally and in writing, yet the trial judge declined to read the letter in a timely manner and
“ultimately did not rule on those requests [and] let the issue go by default instead.” Moore, 531
F.3d at 403. By contrast here, Odubajo did not “clearly and unequivocally assert[] his right to
proceed pro se.” Cromer, 389 F.3d 682. Odubajo raised the question of waiver during a tense back-
and-forth with the Court during a broader discussion about wanting to get a new lawyer. Compare
ECF 77, Tr. 30:14 (when Odubajo asks “[c]an I just go pro se?”), with id., Tr. 4:1-31:13 (providing
the broader context for Odubajo’s one question); see also id., Tr. 7:14-15 (Defendant: “Because
I’ve written the courts asking for [counsel] to be removed from my case.”), 8:14-15 (Defendant:
“I don’t want [counsel] on my case.”); 18:10-21:11 (repeatedly asking for his counsel to be
removed and to get a new lawyer). Further, the Court made a clear ruling denying Odubajo’s oral
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motion to remove his current counsel. See ECF 77, Tr. 27:12-16 (explicitly denying the motion
after plainly confirming that Odubajo did intend to make the motion to remove his counsel).
The Court is not required to conduct a Faretta inquiry until the defendant makes a clear
and unequivocal request to waive his right to counsel. Rather than rely on anything said during a
heated back-and-forth where the participants were repeatedly speaking over each other, this Court
postponed any determination regarding waiver until Odubajo had had sufficient time to properly
understand the weight of such a waiver. Indeed, the two weeks between the October 25, 2022,
pretrial hearing (where Odubajo first raised the question of proceeding pro se) and the November
8, 2022, pretrial hearing (where Odubajo confirmed that he would not proceed pro se and would
continue to be represented by counsel) allowed for the Odubajo to have the opportunity to reflect
on his request and ensure that he did, in fact, wish to proceed pro se. Once Odubajo confirmed that
he intended to move forward with counsel and he did not intend to waive his right to counsel, the
Court had no obligation to conduct a Faretta inquiry.
To the extent that Odubajo claims it was ineffective assistance of counsel on appeal for
appellate counsel to not raise his “denial of self-representation” claim on direct appeal, that claim
fails the Strickland test. As noted, it is the responsibility of the appellate lawyer to determine which
arguments are most likely to succeed and to refrain from making frivolous arguments. Odubajo
has not demonstrated that this decision was objectively unreasonable, nor has he shown that the
outcome of his appeal would have been any different had the issue been raised.
Finally, Odubajo claims that his counsel failed to litigate a suppression issue about TFO
Twombly’s drug dog Ciga allegedly “not [being] trained to detect fentanyl[.]” ECF 160 at 7.
However, Odubajo’s suppression motion specifically makes this argument, and it was also raised
on cross-examination of TFO Twombly during the suppression hearing. There is no basis for an
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ineffective assistance of counsel claim on this issue. To the extent Odubajo intends this claim to
also apply to his appellate counsel, it also fails. As before, Odubajo has not demonstrated how his
appellate counsel’s decision not to raise this issue was objectively unreasonable, nor has he shown
that there is a reasonable possibility that his appeal would have gone differently had the issue been
raised.
IV. CONCLUSION
For the reasons discussed above, Odubajo has failed to show that he is entitled to relief
under § 2255 on any of his claims. Thus, his motion in its entirety is DENIED.
IT IS SO ORDERED.
/s/ Dan A. Polster
Dan Aaron Polster
Date: January 9, 2025 	United States District Judge
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