RESPONSE in Opposition as to Carl Delano Torjagbo filed by USA re 245 MOTION to Vacate,… — USA v. Torjagbo (Dkt. 248)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 248 · 2025-10-14 · Docket on CourtListener

Summary

A response in opposition to the defendant's 28 U.S.C. § 2255 motion, filed by the United States Attorney and two Assistant United States Attorneys for the Northern District of Georgia in United States of America v. Carl Delano Torjagbo, Case Nos. 1:22-CR-171-MLB and 1:25-CV-5672-MLB, entered as Document 248 on October 14, 2025. The background section states that the defendant was convicted of bank fraud, wire fraud and money laundering on July 25, 2025 following a five-day trial and that sentencing is set for January 13, 2026. It traces the pro se motion filed September 8, 2025, trial counsel's withdrawal, the appointment of new counsel on September 24, 2025, the refiling on October 1, 2025, and the Court's denial on October 7, 2025. The argument contends that a § 2255 motion filed before sentencing is subject to dismissal as premature and asks that the motion be denied.

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Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
v. 
CARL DELANO TORJAGBO A/K/A 
KARL LUCIUS DELANO 
 
Case Nos.  
1:22-CR-171-MLB 
1:25-CV-5672-MLB 
 
Response in Opposition to Defendant’s 28 U.S.C. § 2255 Motion 
The United States of America, by Theodore S. Hertzberg, United States 
Attorney, and Kelly K. Connors and Nicholas L. Evert, Assistant United States 
Attorneys for the Northern District of Georgia, files this Response in Opposition 
to Defendant’s 28 U.S.C. § 2255 Motion (Docs. 240 & 245). 
BACKGROUND 
 
On July 25, 2025, Defendant was convicted of bank fraud, wire fraud, and 
money laundering, following a five-day trial. His sentencing hearing is currently 
set for January 13, 2026. On September 8, 2025, Defendant, who was then 
represented by Leigh Burton Finlayson (his trial attorney), filed a pro se motion 
pursuant to 28 U.S.C. § 2255 (“§ 2255”) (Doc. 240). On September 15, 2025, Mr. 
Finlayson moved to withdraw as Defendant’s attorney (Doc. 241). The Court 
granted Mr. Finlayson’s Motion to Withdraw on September 23, 2025 (Doc. 242), 
and Sandra Louise Michaels was appointed to represent Defendant on 
September 24, 2025 (Doc. 243). Defendant re-filed his pro se § 2255 Motion on 
Case 1:22-cr-00171-MLB-RDC     Document 248     Filed 10/14/25     Page 1 of 3

 
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October 1, 2025 (Doc. 245).1 On October 7, 2025, the Court denied Defendant’s 
Motion, stating, “Defendant is represented by counsel and has not complied with 
the provisions of Local Criminal Rule 57.1(D)(3). Nor has the Court granted 
Defendant permission to proceed pro se.” (Doc. 246). On October 9, 2025, 
Defendant’s new counsel, Ms. Michaels, emailed the Court and indicated that, 
despite the Court’s denial, Defendant wishes to persist with his § 2255 motion. 
On October 14, 2025, the Court asked the United States to file a responsive 
pleading.  
ARGUMENT 
 
Relief under § 2255 is available to “prisoner[s] in custody under sentence of a 
court….” 28 U.S.C. § 2255(a) (emphasis added). Accordingly, a § 2255 motion 
filed prior to sentencing is subject to dismissal as premature. See United States v. 
Casaran-Rivas, 311 F. App’x 269, 273 (11th Cir. 2009) (holding that district court 
erred in considering merits of § 2255 motion that was filed before sentencing 
because the motion was premature, and noting that “the statutory language [of § 
2255] assumes that the movant already has been sentenced”); Smith v. United 
States, No. 23-CR-20122-1, 2024 WL 3718101, at *2 (S.D. Fla. Aug. 8, 2024) (noting 
that Ҥ 2255 motion [would be] subject to dismissal as premature because 
Petitioner [had] not yet been sentenced”). Here, because Defendant “has not yet 
 
1 The substance of the two motions appears to be identical, although the first 
motion appears to have additional pages of exhibits attached to it. The second 
filing makes clear that it is meant to be a refiling of the first. (See Doc. 245 at 53). 
Case 1:22-cr-00171-MLB-RDC     Document 248     Filed 10/14/25     Page 2 of 3

 
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been sentenced[,]” his “§ 2255 motion … is subject to dismissal as premature[.]” 
See Smith, 2024 WL 3718101, at *2. For that reason, and the reasons set forth in the 
Court’s October 7 Order (Doc. 246), Defendant’s § 2255 Motion (Docs. 240 & 245) 
should be denied.2  
 
Respectfully submitted, 
THEODORE S. HERTZBERG 
United States Attorney 
/s/KELLY K. CONNORS 
Assistant United States Attorney 
Georgia Bar No. 504787 
Kelly.Connors@usdoj.gov 
/s/NICHOLAS L. EVERT 
Assistant United States Attorney 
Georgia Bar No. 693062 
Nicholas.Evert@usdoj.gov 
 
600 U.S. Courthouse, 75 Ted Turner Drive S.W., Atlanta, GA 30303 
(404) 581-6000   fax (404) 581-6181 
 
2 The instant filing does not address the merits of Defendant’s § 2255 Motion, as 
it would be improper for the Court to consider the merits of the motion at this 
time. See Casaran-Rivas, 311 F. App’x at 273. Should the Court require additional 
briefing on the merits, the United States requests leave to supplement its 
response.  
Case 1:22-cr-00171-MLB-RDC     Document 248     Filed 10/14/25     Page 3 of 3

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