Akande v. USA
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Please read full text of attached order. Signed by Judge Robert N. Chatigny on 10/30/2013. (Bialek, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON SHOLA AKANDE
CASE No. 3:11-cv-1950(RNC)
RULING AND ORDER
Jason Shola Akande ("petitioner"), a Nigerian national,
brings this action pro se under 28 U.S.C. § 2255 seeking to
vacate his convictions and sentence for conspiracy to make a
false statement in a passport application in violation of 18
U.S.C. §§ 371 and 1542; making a false statement in a passport
application in violation of 18 U.S.C. § 1542; and making a false
statement to immigration authorities in violation of 18 U.S.C. §
The petition asserts claims of ineffective assistance of
counsel and prosecutorial misconduct, among other things.
government contends that the claims should be dismissed without a
hearing because they were rejected on appeal or are patently
insufficient or both.
I agree and therefore dismiss the
At the time he commenced this action, petitioner satisfied
the jurisdictional "in custody" requirement of § 2255(a) because
he was serving a term of supervised release as a result of the
convictions at issue.
See Peck v. United States, 73 F.3d 1220,
1224 n.5 (2d Cir. 1995), vacated on other grounds by 106 F.3d 450
(2d Cir. 1997).
Whether the Court continues to have jurisdiction
is open to question, however, because petitioner's sentence has
fully expired, he has been removed to Nigeria, and he has prior
unrelated state convictions for forgery and larceny that may well
render him permanently inadmissible to the United States.
Perez v. Greiner, 296 F.3d 123, 126 (2d Cir. 2002)("because Perez
is permanently inadmissible to this country due to his prior drug
conviction, collateral consequences cannot arise from the
challenged robbery conviction"); Garcia v. United States, Nos. 04
Cr. 83, 06 Civ. 3115, 2007 WL 4371671, at *3 (S.D.N.Y. Dec. 13,
2007)(a habeas challenge by a deported petitioner is moot when he
is permanently inadmissible to the United States based on a
conviction that is unrelated to the conviction being challenged
in his petition).
The Court concludes that the petition is not
Assuming petitioner's prior state convictions do make him
inadmissible to the United States, he has filed a state habeas
petition challenging those convictions and his appeal from a
denial of the petition remains pending.
See Akande v. Warden,
State Prison, TSR-CV06-4001377-S, 2013 WL 2451268 (Conn. Super.
Ct. May 13, 2013).
In these circumstances, petitioner retains a
substantial stake in overturning his federal convictions, thus
ensuring a live controversy sufficient to avoid mootness.
In 2005, petitioner was indicted on the federal charges
Following a trial at which he represented himself
with the aid of standby counsel, a jury convicted him on all
He received concurrent sentences of 41 months'
imprisonment followed by three years of supervised release.
On appeal, petitioner filed a counseled brief arguing that
his motion to sever the passport fraud and false statement
charges should have been granted and that certain statements in
the government’s summations caused him substantial prejudice.
a supplemental brief filed pro se, he raised the following
additional arguments: (1) his requests to introduce evidence to
support his theory of a wide-ranging conspiracy against him
should have been granted; (2) his standby counsel infringed his
right to self-representation; (3) the government should not have
been allowed to provide the jury with "forged" motor vehicle
records and grand jury subpoenas; (4) the Court erred in allowing
petitioner's wife, Chastidy Williams, to testify, and by
admitting his handwritten letters to Williams; (5) the government
"selectively prosecuted" petitioner for making false statements
to immigration authorities while not indicting Williams; (6) the
Court erred by admitting his immigration file; and (7) he
received ineffective assistance from his appointed counsel, who
allegedly failed to advise him of the immigration consequences of
The trial was delayed by changes of defense counsel,
lengthy proceedings relating to the plaintiff's competency to be
tried, the plaintiff's decision to proceed pro se, and subsequent
proceedings relating to his competency to represent himself at
the jury trial.
a jury trial.
The Court of Appeals affirmed the judgment.
States v. Carter, 448 F. App'x 112 (2d Cir. 2011).
exception of the claim of ineffective assistance of counsel
raised in the pro se brief, the Court found that all the claims
raised on appeal were without merit.
With regard to the
ineffective assistance claim, the Court determined that the
record on appeal was insufficiently developed to permit a ruling.
III. Legal Standard
To obtain relief pursuant to § 2255, a petitioner must show
that his "sentence was imposed in violation of the Constitution
or laws of the United States."
28 U.S.C. § 2255.
A claim is
cognizable under § 2255 if it involves a "fundamental defect
which inherently results in a complete miscarriage of justice."
Davis v. Hill, 417 U.S. 333, 346 (1974)(quoting Hill v. United
States, 368 U.S. 424, 428 (1962).
A § 2255 motion does not
provide an opportunity to relitigate issues that were raised and
considered on direct appeal.
255, 260 (2d Cir. 1997).
United States v. Perez, 129 F.3d
To avoid summary dismissal, a § 2255
motion "must contain assertions of fact that a petitioner is in a
position to establish by competent evidence."
Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987).
United States v.
A hearing is not
required when the allegations are "insufficient in law,
undisputed, immaterial, vague, conclusory, palpably false or
United States v. Seiser, 112 F.3d 507 (2d
Cir. 1996) (citing United States v. Malcolm, 432 F.2d 809, 812
(2d Cir. 1970)).
A. Ineffective Assistance of Counsel
As his first ground for relief, petitioner asserts that he
received ineffective assistance of counsel in violation of the
Sixth Amendment because his counsel failed to advise him of the
immigration consequences of a jury conviction as opposed to a
To obtain relief on this claim, petitioner must
demonstrate that his counsel's performance fell below an
objective standard of reasonableness and that he suffered
prejudice as a result of his counsel's deficient performance.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
specifically, he must demonstrate a reasonable probability that
"the outcome of the plea process would have been different with
Lafler v. Cooper, 132 S. Ct. 1376, 1384
Petitioner appears to be claiming that he received
ineffective assistance of counsel during plea negotiations prior
to his decision to proceed pro se.2
He offers no allegations or
To the extent petitioner is claiming ineffective
assistance of standby counsel, he has no constitutional claim.
See United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998)
("[W]ithout a constitutional right to standby counsel, a
defendant is not entitled to relief for the ineffectiveness of
evidence showing that his appointed counsel provided deficient
Nor does he offer allegations or evidence showing that
he could have reached a plea agreement enabling him to remain in
the United States.
Given the nature of the charges in the
indictment, it is implausible that such a deal would have been
Accordingly, the ineffective assistance of counsel
claim will be dismissed.3
B. Prosecutorial Misconduct
Petitioner alleges that the government framed him;
selectively prosecuted him on racial grounds; lied about and
refused to disclose information regarding a wiretap on his
phones; fabricated and forged documentary evidence; "planted
bribed jurors"; failed to disclose that its main witness, Samuel
Carter, was an informant; and presented perjured testimony by
standby counsel" unless "standby counsel held that title in name
only and, in fact, acted as the defendant's lawyer throughout the
proceedings."). Petitioner asserts that his standby counsel
infringed his right of self-representation but this claim was
rejected by the Court of Appeals on appeal and is without merit
in any event, as the government demonstrates in its brief.
In his habeas petition in state court, petitioner asserted
a similar claim of ineffective assistance of counsel regarding
the immigration consequences of a conviction. The Court denied
the claim finding that petitioner had expressly waived it at the
habeas trial. Id. at *4. The Court explained: "At trial, the
petitioner abandoned this claim repeatedly saying that he was not
guilty of the crimes for which he was convicted and, therefore,
would have never pled guilty, regardless of the immigration
consequences of going to trial." Id. at *1.
Carter, who falsely denied being an informant.
allegations were raised in petitioner's pro se brief on appeal.
In addition, the allegations are conclusory and patently without
Accordingly, the prosecutorial misconduct claim will be
Petitioner claims that the Court improperly excluded
Carter's "fabricated" state I.D. and driving records and
destroyed Carter's driving records.
Like the claims just
discussed, these claims were raised and rejected on appeal.
are also patently frivolous.
Finally, petitioner claims that the admission of his wife's
testimony at trial violated his spousal privilege, he was
arrested without probable cause, and the evidence at trial was
insufficient to support a conviction under § 1001 on the element
The claim based on the admission of Williams's trial
testimony was rejected by the Court of Appeals.
With regard to
probable cause and the sufficiency of the evidence, the
government provided the jury with overwhelming evidence that
petitioner committed the offenses charged and, in particular,
that he intended to defraud immigration authorities.
claims will be dismissed.
D. Certificate of Appealability
In a proceeding under § 2255, a certificate of appealability
may issue “only if the applicant has made a substantial showing
of a denial of a constitutional right.”
See 28 U.S.C. §
Under this standard, a certificate of appealability
will not issue unless jurists of reason could debate whether the
petition should have been resolved in a different manner or the
issues are adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has not
made this showing.
Accordingly, petitioner's § 2255 motion is hereby denied.
The Court declines to issue a certificate of appealability.
Clerk will enter judgment dismissing the action.
So ordered this 30th day of October 2013.
Robert N. Chatigny
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?