Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aksal v. United States

United States District Court, D. New Jersey

February 21, 2018

BAWER AKSAL, Petitioner,



         Presently 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.

         I. BACKGROUND

         As this 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 recounted,

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 7-8).
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).

         As to 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.
[Petitioner]: Yes.
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?
[Petitioner]: Yes.
THE COURT: And did you clear up the misunderstanding at ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.