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Kole Akinola v. George W. Hayman

February 3, 2011


The opinion of the court was delivered by: Wigenton, District Judge


Petitioner Kole Akinola, a convicted state prisoner,*fn1 has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New Jersey state court judgments of conviction that were entered on or about September 10, 2002. For the reasons stated herein, the Petition will be denied for lack of substantive merit.


A. Procedural and Factual History

The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on February 9, 2004, with respect to petitioner's direct appeal from his judgments of conviction:

Defendant Kole Akinola appeals from the denial of his motion to withdraw the guilty plea he entered pursuant to a plea agreement. Four separate indictments were involved. On the first indictment, he entered a retraxit plea of guilty to third degree possession of a controlled dangerous substance (CDS) with intent to distribute within a thousand feet of school property (N.J.S.A. 2C:35-7). However, because the name of the school was not known, a guilty plea was accepted to simple possession (N.J.S.A. 2C:35-10a(1)). The charge for possession with intent to distribute within a thousand feet of school property in that indictment was dismissed, but the judgment of conviction did not reflect the amended final offense. On the second indictment, No. 99-7-2621, Akinola entered a plea to a different N.J.S.A. 2C:35-7 charge, for possession of cocaine at his home, which was within a thousand feet of Irvington High School. On the third indictment, No. 99-6-2290, he pled to a reduced charge of second degree robbery. The fourth indictment, No. 99-9-2734, was dismissed as part of the plea agreement. The aggregate sentence authorized by the plea agreement was ten years in prison, three years without parole eligibility. (Re H,*fn2 February 9, 2004 Appellate Division Opinion at pp. 1-2).

The plea hearing in this case was conducted on April 14, 2000, before the Honorable Richard C. Camp, J.S.C., wherein Akinola pled guilty to two drug charges and one second degree robbery count pursuant to a plea agreement. (Re A, April 14, 2000 Plea Transcript). Akinola did not appear at his scheduled sentencing on July 28, 2000, and a bench warrant was issued for his arrest accordingly. He eventually was apprehended two years later. Akinola moved to vacate his plea, and a hearing on this motion was conducted by Judge Camp on August 23, 2002. Judge Camp denied Akinola's motion. (Re B, August 23, 2002 Motion Transcript). Akinola was then sentenced on September 10, 2002, to an aggregate term of ten years with three years of parole ineligibility. (Re C, September 10, 2002 Sentencing Transcript).

Akinola appealed from the denial of his motion to withdraw his guilty plea to the Superior Court of New Jersey, Appellate Division. He asked to have his guilty plea set aside on the ground that his defense attorney had not fully advised him of the penal consequences of his plea. On February 9, 2004, the Appellate Division affirmed the denial of the motion to vacate the plea, but remanded the matter for correction of the judgment of conviction on Indictment No. 99-6-2289 (to reflect the amended charge of simple possession rather than the incorrectly stated entry that a conviction was entered for possession of CDS with intent to distribute within a thousand feet of school property). (Re H). The Supreme Court of New Jersey denied Akinola's petition for certification on June 29, 2004. (Re I).

Akinola filed his first state PCR petition on August 12, 2004. He thereafter filed two amended petitions and his appointed counsel later filed another PCR petition with supporting legal memoranda. (Re M at pp. 2-3). In a memorandum opinion dated March 7, 2006, the Honorable Joseph V. Isabella, J.S.C. denied Akinola's PCR petition. Akinola appealed from the denial of his state PCR petition. On July 27, 2007, the Appellate Division affirmed Judge Isabella's denial of Akinola's state PCR petition. (Re M). The Supreme Court of New Jersey denied certification on October 22, 2007. (Re O).

Akinola filed this habeas petition pursuant to 28 U.S.C. § 2254, on or about May 15, 2008. The State filed a response to the petition on June 9, 2009. There is no traverse or reply filed in this matter.


Akinola asserts the following claims in his petition for habeas relief:

A. Petitioner's guilty pleas were not entered voluntarily or knowingly because no one informed petitioner of the statutory affirmative defense of N.J.S.A. 2C:35-7 even after petitioner gave a factual basis that satisfied this exception.

B. Petitioner's conviction for possession of CDS in Count Two of Indictment 99-06-2289 violated his constitutional right to due process because he never entered a guilty plea to the lesser charge of possession or consented to the trial court's amendment of the charge to a lesser offense of possession of CDS.

C. Petitioner's robbery conviction is constitutionally invalid because his guilty plea was accompanied by a contemporaneous claim of innocence.

D. Petitioner should be allowed to have an evidentiary hearing to clarify the factual basis of his claims and to have his former attorneys cross-examined about their deficiencies as counsel.

E. Ineffective assistance of trial counsel for encouraging petitioner to plead guilty to certain offenses without informing petitioner of his rights and defenses against said charges.

F. Ineffective assistance of appellate counsel. The State essentially contends that the petition should be denied for lack of substantive merit or because it fails to raise claims of federal constitutional dimension. The State also argues that some of petitioner's claims are procedurally defaulted.


Although the docket reflects that Akinola is represented by counsel, the record shows that petitioner's submissions in this matter have been pro se. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Thus, because it appears that Akinola was proceeding as a pro se litigant in this matter, the Court will accord his petition the liberal construction intended for pro se petitioners.

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition challenging a state conviction or sentence only where the inmate's custody violates federal law. 28 U.S.C. § 2254(a).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dep't, 128 F.3d 152, 159 (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). Generally, "[i]f a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable," Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982), and "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

In reviewing a § 2254 petition, a federal court is not permitted to address a federal constitutional claim pertinent to the facts of the case unless the petitioner asserts the claim as a ground for relief. That is, "errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). In addition, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997)(citations and internal quotation marks omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).

In addition to the case law, the Antiterrorism and Effective Death Penalty Act ("AEDPA") limits a federal court's authority to grant habeas relief when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal claim was "adjudicated on the merits" in state court proceedings, the writ must be denied unless adjudication of the claim either involved an unreasonable application of clearly established federal law, or was based on unreasonable determination of the facts in light of the evidence before the state court. See 28 U.S.C. § 2254(d).

The unreasonableness standards of § 2254(d) govern only claims that were "adjudicated on the merits in State Court proceedings." 28 U.S.C. § 2254(d). "An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004)(citations and internal quotation marks omitted), reversed on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005); see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever. See Rompilla, 355 F.3d at 247. See also Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002), cert. denied, 538 U.S. 1000 (2003)(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)(even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference)). On the other hand, "[i]f the petitioner's legal claims were presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply." Rolan, 445 F.3d at 678. See also Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000)(with respect to claims presented to, but unadjudicated by, the state courts, however, a federal court may exercise pre-AEDPA independent judgment), cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000).

If the New Jersey courts adjudicated the petitioner's claims on the merits, this Court may not grant relief unless either § 2254(d)(1) or § 2254(d)(2) is satisfied. See 28 U.S.C. § 2254(d). Accordingly, this Court may not grant habeas relief to the petitioner unless the adjudication of a federal claim by the New Jersey courts involved an unreasonable application of clearly established Supreme Court law, see 28 U.S.C. § 2254(d)(1), or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding and Adamson is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a), (d)(2).

When the grounds raised in the petition are governed by 28 U.S.C. § 2254(d)(1), the court must begin its analysis by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71, 72 (2003).

A decision is "contrary to" a Supreme Court holding within 28 U .S.C. § 2254(d)(1), if the state court "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams, 529 U.S. at 405-06. Under the "'unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Whether a state court's application of federal law is "unreasonable" must be judged objectively; an application may be incorrect, but still not unreasonable.*fn3 See id. at 409-10. "The unreasonable application test is an objective one-a federal court ...

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