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Aksal v. United States

United States District Court, D. New Jersey

January 6, 2020

BAWER AKSAL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondents.

          OPINION

          HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Petitioner Bawer Aksal's most recent motion seeking to reopen his motion to vacate sentence which is brought pursuant to Federal Rule of Civil Procedure 60(b)(6). (ECF No. 53.)

         IT APPEARING THAT:

         1. On May 13, 2016, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.)

         2. On February 21, 2018, now retired Chief Judge Linares denied that motion following an evidentiary hearing. (ECF Nos. 29-30.) As part of that decision, Judge Linares explicitly held 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.)

         3. Petitioner filed a notice of appeal in April 2018. (ECF No. 31.)

         4. While his appeal was pending, Petitioner filed in this Court two motions seeking to amend the appellate record, purportedly brought pursuant to Federal Rule of Appellate Procedure 10(e)(2). (ECF Nos. 33, 35.) Petitioner argued in those motions that the transcript of a 2013 Frye hearing in his underlying criminal matter had omitted a key exchange in which Petitioner claimed his trial attorney essentially admitted having committed ineffective assistance of counsel by failing to properly convey Petitioner's intentions related to a proposed plea agreement. (Id.) Petitioner's only support for that claim was his own bald assertions. (Id.)

         5. On September 10, 2018, Judge Linares denied those motions, explaining as follows:

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 Court”).
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 Frye hearing, and because the alleged exchange is contrary to both the record of the Frye 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) is denied.

(ECF No. 38 at 2-3, internal paragraph numbers omitted).

         6. On October 9, 2018, Petitioner filed a motion seeking to vacate the denial of his motion to amend the record pursuant to Rule 60(b). (ECF No. 40.) In that motion, Petitioner essentially reasserted the same arguments which had already been rejected.

         7. On October 16, 2018, Judge Linares denied this Rule 60(b) motion, finding that

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, Plaintiff's self-serving and baseless allegations of a “missing” section of the 2013 Frye 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 failure to raise the issue in a timely fashion, coupled with the fact that Petitioner's unfounded allegations contradict not only this Court's own recollection of the Frye hearing but also the ...

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