United States District Court, D. New Jersey
L. LINARES, CHIEF JUDGE, UNITED STATES DISTRICT COURT.
before the Court is Petition Bawer Aksal's motion to
vacate, set aside, or correct his sentence brought pursuant
to 28 U.S.C. § 2255. (ECF No. 1). Following this
Court's decision denying all but one of Petitioner's
claims (ECF Nos. 10-11), this Court held a hearing on
Petitioner's sole remaining claim. (See ECF No.
23). Petitioner thereafter filed a brief in support of his
claim (ECF No. 27), to which the Government has responded.
(ECF No. 28). For the following reasons, Petitioner's
sole remaining claim is denied, and Petitioner is denied a
certificate of appealability.
Court has previously set forth the background of
Petitioner's conviction in detail in its prior opinion,
the Court will only recount here those facts related to
Petitioner's sole remaining claim - that he received
ineffective assistance of counsel in relation to a proposed
plea deal prior to trial, resulting in his loss of the
benefit of that plea deal. As this Court previously
Shortly before Petitioner's trial was set to begin, the
parties appeared before this Court for a hearing on June 20,
2013, following the apparent collapse of a preliminary plea
agreement. (Document 2 attached to ECF No. 6). At the start
of that hearing, the Government informed the Court that, as
the parties were preparing for trial, the Government offered
a plea agreement to Petitioner on or about June 13 or 14,
2013. (Id. at 4). Petitioner, after speaking with
counsel, apparently was initially willing to agree to the
proposed offer. (Id.). The Government provided a
first copy of that agreement to Petitioner's attorney on
June 18, 2013, which apparently matched the informal
agreement to which the parties would have agreed.
(Id. at 4-6; see also Document 1 attached
to ECF No. 6). On June 19, the Government, however, forwarded
to defense counsel an amended written agreement. (Document 1
attached to ECF No. 6 at 13). The sole apparent change was
that the amended agreement contained the following language -
"[the Government] will take no position as to the
sentence to be imposed upon [Petitioner] and leaves such
determination entirely to the Court's discretion."
(Id.). While the previously offered agreement did
not contain this language, neither did it contain any
language to the contrary. (Id. at 4). At 4:19 p.m.
on June 19, the Government received an e-mail stating that
defendant had rejected the amended plea. (Id.;
Document 3 attached to ECF No. 6 at 2). In that e-mail,
Petitioner's counsel's associate explained to the
Government that either Petitioner "didn't understand
what was [previously] agreed . . . or he now changed his
mind, but [Petitioner refused to] sign off on the plea
agreement (it's most likely the latter). . . . [His] main
issue with the plea agreement seems to be a factual basis
[requiring him] to admit to any contact that is sexual in
nature." (Document 3 attached to ECF No. 6 at 3).
Defense counsel's associate, however, expressed hope that
Petitioner would again change his mind before the scheduled
hearing the following day. Approximately an hour later, at
5:18 p.m., the Government replied with an e-mail in which it
formally withdrew the plea agreement. (Id. at 4).
Based on this factual background, the Government requested
that the Court engage in a colloquy with counsel and
Petitioner to forestall any later ineffective assistance of
counsel claim based on the withdrawn plea agreement.
(Document 2 attached to ECF No. 6 at 4-5). During that
colloquy, Petitioner's trial counsel, Robert Degroot,
explained that after he received the amended plea agreement
on June 19, he sent his associate, Oleg Nekritin to explain
the amended agreement to Petitioner within half an hour of
receiving it because Petitioner's pre-trial release order
prevented him from coming to Degroot's office without a
court order and Degroot could not go to Petitioner himself.
(Id. at 7). Counsel further stated that, that
afternoon, he received a call from Nekritin in which Nekritin
told him Petitioner had rejected the agreement not because of
the substance of the agreement but instead because of
"how the [factual] alloc[u]tion would have to be
made." (Id.). Degroot further stated that he
spoke with Petitioner again that night, and Petitioner told
him he had rejected the deal. (Id.). Upon
questioning by the Court, Degroot confirmed that, during his
previous discussions with Petitioner, he had had a full
opportunity to discuss the proposed agreement, had answered
all of Petitioner's questions about the proposed
agreement, and had explained to Petitioner "the
advantages and disadvantages of accepting or rejecting"
the plea agreement, and that the agreement they had discussed
differed from the rejected agreement only in that the amended
agreement contained the language stating that the Government
would take no position as to sentencing. (Id. at
This Court then questioned Nekritin. Nekritin agreed that he
had gone to explain the amended agreement to Petitioner on
the afternoon of the June 19, that Nekritin had had a
sufficient opportunity to explain the agreement to Petitioner
and had answered all of Petitioner's questions in that
regard. (Id. at 10). Nekritin also stated that he
had explained to Petitioner the advantages and disadvantages
of taking or rejecting the plea. (Id.). Both
Nekritin and DeGroot both stated that they had also both told
Petitioner that the decision as to whether to take the plea
was Petitioner's alone to make. (Id. at 10-11).
Nekritin then confirmed that Petitioner told him he was
rejecting the deal personally at about 3:15 p.m. on June 19,
and DeGroot further stated that Petitioner reached a final
decision to reject the agreement within a half hour of that
initial rejection. (Id. at 11).
This Court then discussed the matter with Petitioner himself.
Petitioner stated that he received the proposed agreement and
understood that the decision to reject or accept a plea was
his alone to make. (Id. at 12). Petitioner also
stated that, after the amended agreement was received,
Nekritin came to discuss it with him that afternoon.
(Id.). Petitioner claimed, however, that there was a
"misunderstanding" between himself and Nekritin and
Petitioner told Nekritin and DeGroot that he wouldn't
accept the plea deal because of this alleged language barrier
issue between himself and Nekritin[.] (Id. at 13).
Petitioner stated, however, that that night he called and
texted DeGroot and told him that he had changed his mind, and
that he wished to take the agreement now that he understood
its terms and had had a chance to discuss the amended
agreement with DeGroot. (Id.). Petitioner stated
that this conversation apparently took place at between five
and six o'clock that evening. (Id.). DeGroot,
however, stated that he did not speak to or hear from
Petitioner until "a little later" than the six
o'clock suggested by petitioner, and that Petitioner did
not tell him he had changed his mind and wished to plead
guilty until shortly before 9 a.m. on June 20 (see
Id. at 18), and that DeGroot called the Government
immediately thereafter, but the Government had confirmed its
statement in the e-mail and told DeGroot that the deal was
"off the table." (Id. at 14, 18). DeGroot
also reiterated that Petitioner's original rejection had
come about because Petitioner couldn't accept the plea
allocution required by the agreement. (Id.).
(ECF No. 10 at 2-5).
the language barrier issue, Petitioner specifically testified
at the pre-trial hearing as follows:
THE COURT: Did you, in fact, receive a proposed plea
agreement through your attorney from the Government, dated
June 18, 2013?
[Petitioner]: Yes, I did, your Honor.
THE COURT: At that time did you have first an opportunity to
discuss it with Mr. DeGroot and then also an opportunity to
discuss it with Mr. [Nekritin]?
[Petitioner]: Yes. Mr. [Nekritin] came to my apartment in the
afternoon, and we discussed the situation.
THE COURT: Okay. Did you also discuss it prior to Mr.
[Nekritin] coming to your apartment, did you also discuss it
with Mr. DeGroot?
[Petitioner]: Mr. DeGroot told me that a proposal -
[DeGroot]: Just say yes or no.
THE COURT: You do understand, sir, right, that it is
exclusively, and that means only, your decision whether or
not to accept or reject the plea, that is a decision,
however, that should be made after consultation with your
attorney, and is that what you did in this case?
[Petitioner]: Yes. After I spoke to [Nekritin], I had to call
back to Mr. DeGroot that I am accepting the plea deal because
there was some language ...
THE COURT: That you were accepting or rejecting it?
[Petitioner]: No. When [Nekritin] came to my apartment at the
beginning, because there were some changes, what we discussed
with Mr. DeGroot the first time, and then after there was
changes, but I wasn't aware of those changes. When
[Nekritin] came to my apartment and explained it to me, I was
kind of hesitant because I wasn't told ahead of time.
And then Mr. [Nekritin] left my apartment, I called Mr.
DeGroot, and I said I wouldn't accept the plea deal
because there was some language - there was a
misunderstanding between me and [Nekritin due to] language.
THE COURT: So after you spoke to [Nekritin], you then spoke
to Mr. DeGroot, right?
THE COURT: And did you clear up the misunderstanding at ...