United States District Court, D. New Jersey
L. LINARES, JUDGE.
or about May 13, 2016, Petitioner, Bawer Aksal, filed a
motion pursuant to 28 U.S.C. § 2255 challenging his 2013
conviction and sentence. (ECF No. 1).
February 20, 2018, this Court denied that motion following a
hearing. (ECF Nos. 29-30). In denying the motion, this Court
specifically found that "Petitioner's testimony
lack[ed] .. . credibility" based on contradictions
between his testimony at a Frye hearing held in 2013
and the hearing held in this matter in late 2017 as well as
Petitioner's manner and demeanor during those hearings.
(See ECF No. 29 at 14).
Petitioner thereafter filed an appeal. (ECF No. 31).
Following the filing of his appeal, Petitioner filed with
this Court two motions seeking to amend the record pursuant
to Federal Rule of Appellate Procedure 10(e)(2). (ECF Nos.
33, 35). In his motions, Petitioner asserts that the
transcript of the 2013 Frye hearing omitted an
allegedly key exchange between this Court and one of
Petitioner's attorneys during which Petitioner alleges
that the attorney essentially admitted to failing to
correctly inform the Government that Petitioner wished to
take the plea deal he ultimately lost. (Id.).
Petitioner provided no evidence to support his allegation
that this seemingly important exchange ever occurred other
than his own bald and self-serving assertions.
September 6, 2018, the Government filed a response to
Petitioner's motions. (ECF No. 37). In that response, the
Government argued that this allegedly missing exchange, which
is not only counter to the rest of the testimony at the
Frye hearing but would also have been contradictory
to the testimony at the § 2255 hearing in this matter,
never occurred and that Petitioner's motion is nothing
more than an attempt "to rewrite history in order to
better suit his appeal." (Id. at 2).
September 10, 2018, this Court entered an order denying
Petitioner's motions. (ECF No. 38). As this Court
explained in that Order,
Pursuant to Federal Rule of Appellate Procedure 10(e)(2), if
"anything material to either party is omitted from or
misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental record may
be certified and forwarded" by the district court
"before or after the record has been forwarded" to
the Court of Appeals. Rule 10(e)(1) further requires that
where "any difference arises about whether the record
truly discloses what occurred in the district court, the
difference must be submitted to and settled by that
court." These rules allow "amendment of the record
on appeal only to correct inadvertent omissions" and may
not be used "to introduce new evidence." In re
Application of Adan, 437 F.3d 381, 388 n. 3 (3d Cir.
2006); see also United States ex rel. Mulvaney v.
Rush, 487 F.2d 684, 687 n. 5 (3d Cir. 1973) ("[t]he
purpose of the rule is to permit correction or modification
of the record transmitted to the Court of Appeals so that it
adequately reflects what happened in the District
In this matter, Petitioner has submitted no evidence other
than his own self-serving assertion that the allegedly
omitted exchange ever occurred during the 2013 Frye
hearing. This assertion is further undermined by the fact
that it has been raised some five years after the hearing in
question, long after Petitioner's initial appeal to the
Third Circuit, and only now that he has failed to obtain
relief following a more extensive hearing in this matter. As
this Court has no recollection of the allegedly omitted
exchange ever having occurred, as the Government likewise
denies that it occurred, as Petitioner has offered no
evidence other than his own bald and self-serving assertion
that this exchange ever occurred at the 2013 Fiye
hearing, and because the alleged exchange is contrary to both
the record of the Fiye hearing and the testimony at
Petitioner's § 2255 hearing, this Court finds that
Petitioner has failed to show that the record of this matter
is in any way inaccurate or contains any material omissions
or misstatements. As Petitioner has provided no credible
evidence in support of his assertion that this exchange ever
occurred, Petitioner's motion to correct the record
brought pursuant to Federal Rule of Appellate Procedure 10(e)
(Id. at 2-3 (internal paragraph numbers omitted)).
October 9, 2018, Petitioner filed with this Court a motion
seeking to vacate that order. (ECF No. 40). In his new
motion, Petitioner essentially contends that this Court's
order denying his motion to amend the record violates his
rights to Due Process because this Court did not provide him
with a hearing based on his allegations.
Petitioner's belief that he is automatically entitled to
an evidentiary hearing as to his allegations is mistaken. As
this Court explained in its previous Order, Plaintiffs
self-serving and baseless allegations of a
"missing" section of the 2013 Fiye hearing
transcript was raised for the first time five years later in
Petitioner's post-judgment motion to amend the record for
the purposes of this appeal. Prior to that motion, Petitioner
had ample time to raise these allegations not only prior to
his direct appeal which concluded in December 2015, see
United States v. Aksal, 638 Fed.Appx. 136 (3d Cir.
2015), but also during the briefing of his § 2255 motion
and, indeed, during the evidentiary hearing this Court held
as to Petitioner's allegations of ineffective assistance
of plea counsel in this § 2255 matter. Petitioner failed
to do so, and instead waited until after he failed to secure
relief in this matter to raise his allegations of a
"missing" section of the Frye hearing
transcript. Thus, Petitioner had multiple opportunities to
raise his allegations, and failed to do so. Petitioner's
failed to raise the issue in a timely fashion, and
Petitioner's unfounded allegations contradict not only
this Court's own recollection of the Frye
hearing but also the testimony provided at the hearing held
in this matter. As a result, Petitioner's allegations are
insufficient to warrant a second hearing. Petitioner's
motion to vacate this Court's Order denying his motion to
amend the record as to the Frye hearing held in 2013
is therefore denied.
conclusion, Petitioner's motion to vacate this
Court's Order denying his motion to amend the record for
the purposes of appeal (ECF No. 40) is ...