AFOLABI v. UNITED STATES OF AMERICA

Filing 9

OPINION. Signed by Judge Jose L. Linares on 6/15/15. (DD, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AKOUAVI KAPADE AFOLABI,
Civil Action No. 13-3396 (JLL)
Petitioner,
v.

:

OPINION

UNITED STATES OF AMERICA,
Respondent.

LINARES, District Judge:
Presently before the Court is the motion of Akouavi Kapade’ Afolabi (“Petitioner”) to
vacate, set aside, or correct her sentence brought pursuant to 28 U.S.C.

§ 2255, (ECF No. 1), to

which Respondent, United States of America (“Respondent”), filed a response (ECF No. 7). Also
before the Court is Petitioner’s Motion for the Appointment of Counsel. (ECF No. 8). For the
following reasons, the Court will grant Petitioner an evidentiary hearing as to the issue of whether

counsel proceeded to trial against Petitioner’s expressed desire to plead guilty, deny Petitioner’s
remaining grounds for relief, and grant Petitioner’s request for counsel.

I.

BACKGROUND

Because of the nature of the claims Petitioner raises in her

§ 2255 motion, only a brief

recitation of the facts of Petitioner’s underlying conviction is necessary here. On Direct Appeal,

In various trial documents, this name was spelled “Kpade.” For the purposes of this opinion,
however, this Court will use the spelling Petitioner used in the caption to her § 2255 motion,
“Kapade.” (ECF No. 1).

the Third Circuit summarized the facts of the case as follows:
From October 2002 through September 2007, [Petitioner] (a citizen
of the West African nation of Togo), her former husband and her
son brought more than 20 West African girls, aged 10 to 19, from
poor villages in Togo and Ghana into the United States on
fraudulently obtained visas, under the pretense that the girls would
Instead, the girls worked in hairgo to school or learn a trade.
braiding salons for up to 16 hours a day, six or seven days a week,
and turned over all their earnings to [Petitioner and her co
defendants].
.

.

.

At [Petitioner’s] trial, the Government introduced evidence
that the girls were physically, psychologically and sexually abused
in both Africa and the United States. [Petitioner] and her co
conspirators beat the girls, sometimes at length and with extreme
violence, to ensure their compliance. [Petitioner’s] former husband
forced at least three of the girls to have sex with him and transported
another girl, who was under the age of 18, from New Jersey to North
Carolina in order to have sex with her. When the girls tried to tell
[Petitioner] about these sexual assaults, [Petitioner] either refused to
listen to them or blamed them for the assaults.
In order to demonstrate the involuntary nature of the girls’
servitude in the United States, the Government also produced
evidence that [Petitioner] and her co-conspirators isolated the girls
from their families, exploited their youth and lack of knowledge of
English, and induced deep fear and shame at the prospect of being
returned to Africa in disgrace. [Petitioner] and her co-conspirators
confiscated the girls’ passports and other identification to prevent
their independent travel. On the extremely rare occasions that the
girls were permitted to speak to their families in Africa, they were
pressed into lying about their whereabouts; one girl was forced to
tell her parents she was succeeding in school (which she was in fact
not allowed to attend), and another that she was living in Germany.
The girls testified at trial that they were unable to leave [Petitioner’s]
control because they feared her, did not know anyone else,
possessed no documentation and believed [Petitioner] would do
something to harm their families. Indeed, one girl testified that
[Petitioner’s] treatment prompted her to contemplate suicide.

[At trial t]he Government [also] introduce[d] evidence that,
2

while in Togo, [Petitioner] beat the girls and demonstrated voodoo
practices in order to threaten and intimidate them
prior to the
indictment period[.]
.

.

.

United States v. Ajölabi, 508 F. App’x 111, 1 12-14 (3d Cir. 2013) (record citations omitted).

Based on these background facts, Petitioner was indicted on October 4, 2007 with charges
including conspiring to harbor illegal aliens for the purpose of her own financial gain and visa
fraud.

(Criminal Action No. 07-785 at ECF No. 22).

On January 15, 2009, Petitioner was

indicted, by way of superseding indictment, on charges including the aforementioned conspiracy,
visa fraud, smuggling illegal aliens, harboring illegal aliens, forced labor, and trafficking with
respect to forced labor. (Criminal Action No. 07-785 at ECF No. 41). Although Petitioner was
offered a plea agreement in which more than a dozen of the twenty two charges would have been
dismissed and Petitioner subject to a Guidelines offense level of 32 at sentencing, Petitioner
rejected that plea and chose to proceed to trial. (Plea Agreement attached to ECF No. 7 at 1, 68).
Following a nearly month-long trial during which the jury heard testimony establishing the
facts recounted above, the jury returned a verdict of guilty as to all twenty two counts with which
Petitioner was charged. (Criminal Action No. 07-785 at ECF No. 178). This Court thereafter
sentenced Petitioner to 324 months’ imprisonment, approximately four million dollars in
restitution, and three years of supervised release following her prison term. (Criminal Action No.
07-785 at ECF No. 214, 215). Petitioner appealed, arguing that this Court erred in admitting the
voodoo-related evidence and in denying her motion for a judgment of acquittal. See Afolabi, 508
F. App’x at 112. The Third Circuit affirmed, finding that any prejudice which resulted from the
voodoo evidence was corrected by a limiting instruction this Court gave to the jury and that even
3

would have been harmless in light of the
had it been error to admit that evidence, that error
The Third Circuit likewise rejected
“overwhelming evidence” produced at trial. Id. at 118.
d evidence of abuse the Government
Petitioner’s argument that without the pre-indictment perio
ms as required by the forced labor and
could not prove that Petitioner had coerced her victi
nt 2255 motion on May 30, 2013.
trafficking counts. Id. Petitioner thereafter filed the insta §

H.

DISCUSSION

A.

Legal Standard

to 28 U.S.C.
A prisoner in federal custody may file a motion pursuant

§ 2255 challenging

ides, in relevant part, as follows:
the validity of his or her sentence. Section 2255 prov
lished by Act
A prisoner in custody under sentence of a court estab
the ground that
of Congress claiming the right to be released upon
tion or laws of
the sentence was imposed in violation of the Constitu
diction to
the United States, or that the court was without juris
ss of the
impose such a sentence, or that the sentence was in exce
to collateral
maximum authorized by law, or is otherwise subject
nce to vacate,
attack, may move the court which imposed the sente
set aside or correct the sentence.
28 U.S.C.

§

onal defect or a Constitutional
2255. Unless the moving party claims a jurisdicti

t show that
violation, in order to merit relief the moving party mus

an error of law or fact constitutes

a complete miscarriage of justice, (or) an
“a fundamental defect which inherently results in
omission inconsistent with the rudimentary demands of

fair procedure.” United States v. Horsley,

States, 368 U.S. 424, 429 (1962)), cert.
599 F.2d 1265, 1268 (3d Cir.) (quoting Hill v. United
s, 285 F. Supp. 2d 454, 458-59 (D.N.J.
denied 444 U.S. 865 (1979); see also Morelli v. Un ited State
2003).

4

B. Analysis
1.

Ineffective Assistance of Counsel

ly ineffective for various reasons.
Petitioner argues that her trial counsel was constitutional
Sixth Amendment and are governed by
Claims of ineffective assistance of counsel arise under the
466 U.S. 668 (1984). Under
the two-prong test established in Strickland v. Washington,
rmance was deficient. This requires
Strickland, a petitioner must first show that “counsel’s perfo
sel was not functioning as the counsel
showing that counsel made errors so serious that coun
United States v. Shedrick, 493 F.3d
guaranteed by the Sixth Amendment.” Id. at 687, see also
that counsel’s deficient performance
292, 299 (3d Cir. 2007). Second, a petitioner must show
us as to “deprive [the petitioner] of
prejudiced her defense such that counsel’s errors were so serio
at 687; Shedrick, 493 F.3d at 299.
a fair trial., whose result is reliable.” Strickland, 466 U.S.
“proper standard for attorney
In evaluating counsel’s conduct for deficiency, the
,

Jacobs v. Horn, 395 F.3d 92, 102 (3d
performance is that of ‘reasonably effective assistance.”
sel’s representation “fell below an
Cir. 2005). Petitioner must therefore show that her coun
circumstances. Id. Reasonableness in
objective standard of reasonableness” considering all the
r’s particular case, viewed as of the time
this context is determined based on the facts of Petitione
cial scrutiny of counsel’s performance
of the conduct Petitioner alleges was ineffective. Id. Judi
“must be highly deferential.

.

.

uct
a court must indulge a strong presumption that counsel’s cond

tance.” Strickland, 466 U.S. at 689.
falls within the wide range of reasonable professional assis
she must still affirmatively
Even if Petitioner shows that counsel was deficient,
e. Id. at 692-93. “It is not enough
demonstrate that counsel’s deficiency prejudiced her defens
eivable effect on the outcome of the
for the defendant to show that the errors had some conc
5

proceeding.” Id. at 693. Instead, Petitioner must show that “there is a reasonable probability, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694; see also Shedrick, 493 F.3d at 299. “It is firmly established that a court must consider the
strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied.”
Saranchak v. Beard, 616 F.3d 292, 311 (3d Cir. 2010) (quoting Buehi v. Vaughn, 166 F.3d 163,
172 (3d Cir. 1999)). Absent exceptional circumstances, where the evidence of a Petitioner’s guilt
was established by overwhelming evidence, the petitioner cannot show that she was prejudiced by
counsel’s mistakes unless she can produce “a considerable amount of new, strong evidence to
undermine” [her] conviction. Id.; see also Copenhafer v. Horn, 696 F.3d 377, 390 (3d Cir. 2012)
(“[i]n light of the overwhelming evidence.

.

.

we agree.

.

.

that [the petitioner] cannot show he

was prejudiced”). “Because failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s performance when possible,
[Strickland, 466 U.S. at 697-98],” it is often appropriate for the Court to first address the prejudice
prong where it is dispositive of a petitioner’s claims.

United States v. Cross, 308 F.3d 308, 315

(3d Cir, 2002).

Petitioner first asserts that “her convictio[n] was coerced. Movant’ s Attorney failed to
provide pertinent information which would have been favorable to Movant’s defense.” (ECF No.
I at 5). Petitioner provides no facts or context in addition to this statement, neither identifying
what pertinent information was not provided during trial nor specifying how these unknown facts
prejudiced her defense.

Where a “petition contains no factual matter regarding Strickland’s

prejudice prong, and [only provides]

.

.

.

unadorned legal conclusion[s]

6

.

.

.

without supporting

, let alone
factual allegations,” the petition is insufficient to warrant even an evidentiary hearing
States v.
habeas relief Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010); accord United
928 (3d Cir.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000); United States v. Dawson, 857 F.2d 923,
no more than
1988). As Petitioner provides no factual matter regarding this claim, and presents
information,
an unadorned conclusion that counsel was deficient for failing to provide unspecified
assistance of
Petitioner’s first claim is patently insufficient to establish a claim for ineffective
Palmer, 592
counsel, especially in light of the overwhelming evidence of guilt presented at trial.
F.3d 386, 395.
failure to
Petitioner then asserts that “[djue to severe language barrier and co[u]nsel’s
prejudiced
provide Movant with a clear and precise understanding of proceedings, Movant was
ns effectively.”
against and could not formulate an adequate defense or communicate her concer
t. To the
(ECF No. I at 8). Petitioner again provides no further factual information or contex
ensure that she
extent that her claim is meant to suggest that counsel was ineffective for failing to
.
understood proceedings, Petitioner’s claim is directly belied by the record

Throughout the

translated the
proceedings before this Court, Petitioner was assisted by an Ewe interpreter who
48, 64, 214).
proceedings as they occurred. (See, e.g., Criminal Action No. 07-785 at ECF No.
eter, was unable
There is nothing in the record to suggest that Petitioner, with the aid of her interpr
to this Court,
to understand the proceedings. Petitioner did not raise any lack of understanding
respect to
nor did she at any point express dissatisfaction with her attorney or the interpreter with
her understandings of the proceedings.

As Petitioner has otherwise provided no factual

background for this claim, and merely asserts the legal conclusion that counsel was
ineffective, this claim, too, must be denied. Palmer, 592 F.3d 386, 395.
7

constitutionally

Petitioner also argues that counsel “was also ineffective for failing to present mitigating
evidence. Also by his failure to investigate or prepare for sentencing. His failure to object to
witness testimony in which there was little or no substance.

Due to co[ujnsel[’sj

misrepresentation[sj and errors, Movant feels that she received a harsher sentence.” (ECF No. I
at 9). As with the previous two claims, Petitioner presents no further factual information and fails
to state what testimony, if any, should have received counsel’s objection, or what mitigating
evidence counsel could have presented at sentencing.

As Petitioner’s “bald assertions and

conclusory allegations do not afford sufficient ground for an evidentiary hearing,” they are
certainly insufficient to merit relief. Campbell v. Burns, 515 F.3d 172, 184 (3d Cir. 2008); see
also Thomas, 221 F.3d at 437. This Court notes, however, that the record is clear that Petitioner’s
counsel obviously did prepare for sentencing, and made numerous arguments, however
unsuccessful some may have been, on her behalf.

(See Sentencing Transcript, Document 2

attached to ECF No. 7 at 10-69). Although it is true that counsel chose not to submit certain e
mails on Petitioner’s behalf, counsel asserted that that decision had been made after discussion
with Petitioner, and Petitioner in no way indicated that she disagreed with that decision. (Id. at
68). Without some factual information to support the assertion that these excluded documents
would have had some effect upon Petitioner’s sentence, however, counsel’s choice to exclude them
cannot be said to have been deficient, and this Court certainly cannot find prejudice. Palmer,
2
2

This Court would note that the Court specifically considered, and rejected, the argument at
sentencing that Petitioner’s acts may have had ultimately positive outcomes for her victims in so
much as they would be able to become residents or citizens of the United States in spite of the
indignities suffered as forced laborers under Petitioner’s schemes. (See Sentencing Transcript at
86). To the extent that Petitioner’s “mitigating evidence” would have presented similar
information, this Court doubts, in light of the overwhelming evidence and the nature of Petitioner’s
crimes, that any such evidence would have been availing for Petitioner at sentencing.
8

592 F.3d 386, 395.

claim that counsel
An evidentiary hearing is required as to Petitioner’s remaining

2.

proceeded to trial after being informed Petitioner wished to plead guilty

t Petitioner’s
3
Petitioner’s remaining claim asserts that counsel proceeded to trial agains
provide Petitioner with
express desire to plead guilty and, in so recommending, counsel failed to
4 The habeas statute
sufficient information to make the decision as to whether to plead guilty.
s of the case conclusively
requires an evidentiary hearing “unless the motion and files and record
States v. Booth, 432
show that the prisoner is entitled to no relief.” 28 U.S.C. §2255(b); United
Cir. 1992). Where
F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d

into parts of her
Although the Court construes this as a single claim, Petitioner splits this claim
sel regarding
grounds two and four in which she argues that she “disagree[dJ with her co[ujn
Petitioner[’]s right to
going forward to trial, but was ignored by counsel on her wishes not to.
e effect on the outcome of
forego trial was taken away from her and in turn the trial had an advers
Movant[’s] behalf.
her sentencing,” and “[c]ounsel failed to seek a favorable plea offer on
sentence to be imposed.
Counsel further failed to fully explain to Movant the risks as to
be facing at trial.
Counsel did not provide his client with a ‘pretty good idea’ of what she would
tanding the
Therefore, Movant proceeded against her expressed wishes, without fully unders
ableness, rendering
consequences. Counsel’s advice fell below an objective standard of reason
him ineffective.” (ECF No. 1 at 6, 9).
te for a more
To the extent that Petitioner wished to raise a claim that counsel did not negotia
notes that a criminal
favorable plea offer than the one provided by the Government, this Court
accept it.”
defendant has “no right to be offered a plea.. nor a federal right that the judge
Without some evidence that the
132 5. Ct. 1376, 1388 (2012).
U.S.
Lajier v. Cooper,
Petitioner does not
Government did or would have offered a more “favorable” plea offer, which
counsel’s
ice
even assert, let alone show, Petitioner cannot established that she was prejud by
132 S. Ct.
U.S.
alleged “failure” to secure such a deal. See, e.g., Missouri v. Frye,
is denied as to
1399, 1409 (2012). Any such claim by Petitioner would therefore fail, and relief
Petitioner’s claim that counsel did not obtain a better deal for her.

‘

.

---

---,

---,

---

9

---,

---,

nal knowledge, conclusively negates the
the record, as supplemented by the trial judge’s perso
the petitioner is not entitled to relief, no
factual predicates asserted by a petitioner or indicate that
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.
hearing is required. Government of Virgin Islands
F. App’x 6, 8 (3d Cir. 2014); Booth, 432
1985); see also United States v. Tuyen QuangPham, 587
ioner’s claims are not conclusively
F.3d at 546 (evidentiary hearing only necessary where a petit
ided, Petitioner’s first three claims are
resolved by the record). For the reasons previously prov
required as to those claims. Petitioner’s
without merit, and no evidentiary hearing is therefore
y, cannot clearly be determined on the
final claim, however, regarding her desire to plead guilt
current record.
that he did not give adequate
Petitioner asserts that her counsel was ineffective both in
r was found guilty at trial and for failing
advice as to the potential sentencing exposure if Petitione
in a harsher sentence than otherwise would
to follow her expressed wish to plead guilty, resulting
ed States v. Bui, 769 F.3d 831, 835 (3d Cir.
have resulted. As the Third Circuit explained in Unit
2014),
Sixth
The Court has re-emphasized that “[d]efendants have a
Amendment right to counsel, a right that extends to a plea
bargaining process.” Lafler v. Cooper,

---

U.S.

---,

---

132 S. Ct.

1376, 1384 (2012).
a
When addressing a guilty plea, counsel is required to give
med
defendant enough information “to make a reasonably infor
l, 724
decision whether to accept a plea offer.’ Shotts v. Wetze
969
F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day,
10

F.2d 39, 43 (3d Cir. 1992)), cert. denied,

---

U.S.

---,

134 S. Ct.

1340 (2014). We have identified potential sentencing exposure as
an important factor in the decision[-]making process, stating that
“[kjknowledge of the comparative sentence exposure between
standing trial and accepting a plea offer will often be crucial to the
decision whether to plead guilty.” Day, 969 F.2d at 43. In order
to provide this necessary advice, counsel is required “to know the
Guidelines and the relevant Circuit precedent...

.“

United States

v. Smack, 347 F.3d 533, 538 (3d Cir. 2003).

Where a petitioner shows that counsel’s actions fell below an objective standard of reasonableness
in either advising petitioner as to a potential plea, or in rejecting a plea Petitioner otherwise would
have accepted, see, e.g., Frye, 132 S. Ct. at 1409, the petitioner must still show that this failure
prejudiced the petitioner. Lafler, 132 S. Ct. at 1384-85. This requires Petitioner to “show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.

.

.

[which un the context of pleas [requires] a [petitioner]

show the outcome of the plea process would have been different with competent advice.” Id. at
1384. Thus, a petitioner claiming that counsel’s deficient actions led to the loss of the opportunity
to plead pursuant to a plea bargain must show that the offer would have been accepted by the
petitioner, the prosecution would not have withdrawn the offer, the court would have accepted its
terms, and either the conviction or sentence under the offer’s terms would have been less severe
than that imposed after trial. Id. at 1385.
Here, Petitioner alleges that, had counsel competently advised her of the risks of
11

proceeding to trial and listened to her express wishes, she would have pled guilty according to the
terms of the offered plea agreement. Assuming without deciding that this Court would have
accepted the terms of that plea agreement and the Government would not have withdrawn the
offer, the terms of the plea agreement would result in a Guidelines level of 32 (as opposed to the
41 level found at sentencing) and more than a dozen of the charges of which Petitioner was
convicted would have been dismissed.

(Plea Agreement attached to ECF No. 7 at 1, 6-8).

Clearly, then, if the offer had been accepted by all parties, both the conviction and sentence would
have been less harsh, and prejudice likely therefore resulted from the decision to proceed to trial.
The question, then, is whether the rejection of the plea was the result of deficient advice on
the part of counsel. Plaintiff alleges that counsel did not give her a sufficient understanding of
the consequences of proceeding to trial, and ultimately refused to enter the guilty plea she wished
to pursue. Counsel, however, certifies that he communicated the details of the offer to Petitioner,
5
but she “was not interested in pleading guilty and denied her guilt.” (Document 1 attached to
ECF No. 7 at 1). As there is nothing in the trial record to reflect what occurred between counsel
and Petitioner during those discussions, the record is insufficient to determine whether counsel
acted deficiently, and this Court is left with Petitioner’s and counsel’s conflicting accounts. As
this matter cannot be decided based solely on the information in the record, as supplemented by

This Court recognizes that, to some extent, the claims Petitioner raises contradict each other.
Petitioner’s assertion that counsel failed to obtain an adequate plea deal during negotiations with
the Government does suggest that she found the deal which she now claims she would have
accepted unsatisfactory. Likewise, Petitioner’s claim that she received inadequate advice as to
whether to proceed to trial suggests that, regardless of the quality of that advice, she chose to go
to trial as a result of the advice, which would appear to conflict with the assertion that she wished
to plead guilty. These apparent contradictions, however, are not, in and of themselves,
sufficiently dispositive of Petitioner’s claims.
12

this Court’s recollection of Petitioner’s case, an evidentiary hearing is required to resolve
Petitioner’s final claim. See Booth, 432 F.3d at 546. Because an evidentiary hearing is necessary
to resolve Petitioner’s final claim, this Court will grant her request for the appointment of counsel
in the interests of justice.

III.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a
proceeding under

§ 2255 unless she has “made a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As those of Petitioner’s claims which the Court

is denying without an evidentiary hearing are without merit, she has failed to make a substantial
showing that she was denied a constitutional right as to the denied claims. Because Petitioner has
failed to make such a showing, no certificate of appealability shall issue as to those claims.

13

IV. CONCLUSION

For the reasons stated above, this Court will grant Petitioner’s request for an evidentiary
hearing as to Petitioner’s claim that counsel proceeded to trial against her wishes, will grant

Petitioner’s request for the appointment of counsel, and will deny Petitioner’s remaining claims
for relief under 28 U.S.C.

§ 2255. An appropriate order follows.

ose L. Linares, U.S.D.J.

14