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BAKARI v. BEYER

October 6, 1994

JALANI A. BAKARI, Petitioner,
v.
HOWARD BEYER, et al., Respondents.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 Petitioner, Jalani Bakari a/k/a Alonzo Koon ("Bakari"), currently confined at a New Jersey State Prison in Trenton, New Jersey, filed a petition for a writ of habeas corpus relief under Title 28 section 2255 of the United States Code. *fn1" Having exhausted all available state court remedies, petitioner asserts that he was denied his Sixth Amendment right to counsel during his first appeal. Respondents argue that petitioner made a knowing and voluntary waiver of counsel. After a careful review of the entire record, the Court has determined that petitioner's application should be granted.

 BACKGROUND

 A. The Facts

 Based on the record of petitioner's trial and appeals, the Court gleans the following factual information. Petitioner was found guilty of the armed robbery of Renaldo Serrano and the armed robbery and kidnapping of Serrano's fiance, Miriam Soto.

 On October 3, 1986, at about 11:00 p.m., petitioner and his accomplice, Willie Glover, approached Mr. Serrano and Ms. Soto as they sat in their parked car talking. Petitioner pulled out a gun, held it against Mr. Serrano's neck and took eight dollars from Mr. Serrano's wallet. Petitioner then ordered Mr. Serrano to walk away from the car without looking back. Meanwhile, Glover ordered Ms. Soto out of the car, made her walk about twenty-five or thirty feet away from the car and then returned her to the backseat of the car. Petitioner then drove off with Glover in the front seat and Ms. Soto in the backseat. As they were driving Glover searched inside Ms. Soto's blouse and pants. While Glover was distracted searching Ms. Soto's pocketbook, she tried to hide her jewelry under the seat. Her movements distracted petitioner who told her to move into the front seat where he could watch her. As she was attempting to move into the front seat, Ms. Soto escaped and fled from the car.

 Both Mr. Serrano and Ms. Soto immediately contacted the police. On October 11, 1986, the police stopped Glover, who was driving Ms. Soto's car. At this time, Glover was charged only with a motor vehicle offense and released. On October 25, 1986, Mr. Serrano and Ms. Soto identified Glover at a photo array. Glover was arrested on October 28, 1986. At the time of his arrest, Glover made a statement in which he admitted his own participation in the robbery and identified petitioner as his partner in the robbery. A complaint was signed against petitioner on October 29, 1986, and he was arrested on November 14, 1986.

 On January 9, 1987, an Essex County Grand Jury returned Indictment No. 332-1-87, charging Glover and petitioner with first degree robbery (counts one and two); first degree kidnapping (count three); third degree aggravated assault (count four); third degree criminal sexual contact (count five); third degree unlawful possession of a weapon (count six); and second degree possession of weapon for an unlawful purpose (count seven).

 The jury found petitioner guilty of the charges contained in counts one, two, three, four, six and seven of the indictment. Petitioner was acquitted on count five of the indictment.

 On May 5, 1988, petitioner was sentenced to an aggregate term of thirty-six years with sixteen years of parole ineligibility. A total of $ 650.00 fines was imposed.

 On June 9, 1988, a notice of appeal on behalf of petitioner was filed nunc pro tunc with the Superior Court of New Jersey, Appellate Division. Petitioner was assigned counsel from the Office of the Public Defender to represent him in his first appeal as of right.

 At the outset of his appeal, petitioner expressed dissatisfaction with counsel from the Office of the Public Defender. Specifically, petitioner was aggrieved that briefs were filed without prior consultation with him and that he was not sent a copy of his trial transcript. As a result, petitioner expressed orally and in writing that he did not wish to be represented by the Office of the Public Defender. (Certification of Diane Toscano, sworn to February 22, 1989 (Ra 30-31)). As a result, the Office of the Public Defender filed a motion to be withdrawn as counsel on February 22, 1989. Without holding any hearing on the matter, the appellate division granted the motion on March 22, 1989. Petitioner was then ordered by the appellate division to perfect his appeal either pro se or with substitute counsel within 30 days after the entry of the Order.

 Petitioner proceeded to appeal his conviction pro se in the appellate division, which affirmed his conviction on February 14, 1990. Petitioner then sought certification pro se before the New Jersey Supreme Court, which denied his petition. Petitioner also filed a motion for reconsideration pro se with the New Jersey Supreme Court in which he claimed that his Sixth Amendment right to counsel had been violated because hid did not knowingly and voluntarily ...


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