United States District Court, D. Connecticut
ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE
Jeffrey Alker Meyer United States District Judge.
Jason Shola Akande was convicted after a jury trial on
multiple criminal charges in the District of Connecticut. He
has now filed this lawsuit pro se seeking $20
million in damages against a lawyer-defendant Tina
Schneider-who was appointed by the Second Circuit Court of
Appeals to represent him on appeal. Akande alleges that
Schneider violated his rights under the Fifth and Sixth
Amendments to the U.S. Constitution and that she committed
legal malpractice. Because it appears to me that the
complaint lacks merits as a matter of law, I am issuing this
order to show cause to allow Akande to explain why his
complaint should not be dismissed.
was convicted after a jury trial on all three counts of a
superseding indictment that charged him with conspiracy to
commit passport fraud, passport fraud, and making false
statements to immigration authorities. See United States
v. Carter, 448 Fed.Appx. 112, 113 (2d Cir. 2011)
(discussing charges against Akande). He appealed to the
Second Circuit, and the Second Circuit appointed Schneider to
represent him pursuant to the Criminal Justice Act. Akande
told Schneider all of the claims he wished her to pursue on
appeal, but Schneider told him that it was her
“professional decision” not to raise all these
claims, and she advised him that he could file a pro
se supplemental brief to raise any claims that she did
not pursue in her briefing to the Second Circuit. Doc. #1 at
7-8; see also Jones v. Barnes, 463 U.S. 745 (1983)
(discussing how a lawyer's exercise of professional
judgment to decline to raise all non-frivolous appeal issues
requested by the client does not violate the Constitution).
Second Circuit affirmed Akande's conviction. Except as to
Akande's claim that his trial counsel was ineffective
(for which the record was not sufficiently developed to
resolve on appeal), the Second Circuit listed and then
rejected all the claims that Schneider raised as well as
those additional claims raised by Akande in his supplemental
brief. See Carter, 448 Fed.Appx. at 113-14.
subsequently filed a motion for post-conviction relief
pursuant to 28 U.S.C. § 2255, but the motion was denied.
See Akande v. United States, 2013 WL 5873385 (D.
Conn. 2013). Akande did not claim in his motion for
post-conviction relief that Schneider had rendered
ineffective assistance of counsel on appeal. Ibid.
has now filed this lawsuit, claiming for the first
time-almost eight years after Schneider's representation
of him on appeal-that Schneider violated his rights. He
alleges that she “knowingly and willfully sold [his]
precious freedom, to the Connecticut federal
prosecution” and that she “back-stabbed”
him. Doc. #1 at 3 (internal quotation marks, capitalization,
and boldface omitted). In particular, Akande complains that
Schneider failed to raise all the claims he wished her to
pursue on appeal and to file “documentary
evidence” in support of the claims he wanted her to
pursue. Doc. #1 at 9-10. He also complains that she failed to
tell him about “exculpatory evidence”-to wit:
that the charges in the original indictment that was
filed against him were dismissed after he was convicted on
the charges in the superseding indictment.
Id. at 10-12. Akande claims Schneider violated his
rights under the Fifth Amendment and the Sixth Amendment and
that she engaged in legal malpractice for which she should
pay him $20 million in damages. Id. at 17.
has filed this case pro se and in forma
pauperis. This Court has authority to review and dismiss
an in forma pauperis complaint if it is
“frivolous or malicious” or if it otherwise
“fails to state a claim on which relief may be
granted.” See 28 U.S.C. § 1915(e)(2)(B).
Because the plaintiff is a pro se litigant, the
Court must afford the complaint a liberal construction and
interpret it to raise the strongest grounds for relief that
its allegations suggest. See, e.g., Sykes v.
Bank of America, 723 F.3d 399, 403 (2d Cir. 2013).
Still, even a pro se complaint may not survive
dismissal if its factual allegations do not establish at
least plausible grounds for a grant of relief. See,
e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d
378, 387 (2d Cir. 2015).
ordinary course, the Court will not dismiss a complaint
sua sponte without affording the plaintiff a
reasonable opportunity to respond to the concerns that would
warrant dismissal. See Abbas v. Dixon, 480 F.3d 636,
639-40 (2d Cir. 2007). The purpose of this ruling is to state
the Court's concerns so that Akande may respond.
alleges that Schneider violated his right to due process
under the Fifth Amendment and his right to effective
assistance of counsel under the Sixth Amendment. These claims
appear to lack merit as a matter of law. The U.S.
Constitution generally regulates the conduct of the
government and government officials, not private persons.
Despite the fact that public defenders are paid by the
government, the Supreme Court has made clear that public
defenders are not governmental actors who may be subject to
liability for violating a client's constitutional rights
“when performing a lawyer's traditional functions
as counsel to a defendant in a criminal proceeding.”
Polk County v. Dodson, 454 U.S. 312, 325 (1981);
see also Manhattan Cmty. Access Corp. v. Halleck,
139 S.Ct. 1921, 1928-29 (2019) (discussing how “this
Court's state-action doctrine distinguishes the
government from individuals and private entities” and
that “representing indigent criminal defendants”
does not qualify as “state action” for purposes
of a plaintiff's claim that there has been a violation of
the Constitution). This precedent suggests that Akande has no
grounds to hold Schneider liable under the Fifth or Sixth
Amendment with respect to her court-appointed advocacy role
on Akande's appeal.
extent that Akande further alleges that Schneider became a
state actor by conspiring with governmental prosecutors to
“back-stab” him, these claims are wholly
conclusory and insufficient to sustain plausible grounds for
relief against Schneider. See, e.g., Allen v.
Antal, 665 Fed.Appx. 9, 14-15 (2d Cir. 2016) (complaint
insufficient where it alleged “only conclusory, vague,
or general allegations of conspiracy to deprive a person of
constitutional rights”); Akande v. Philips,
386 F.Supp.3d 281, 291 (W.D.N.Y. 2019) (rejecting similarly
conclusory conspiracy claims by Akande against private
persons who allegedly conspired with federal immigration
agents to mistreat him). In short, it appears that there is
no plausible basis for Akande's claims that Schneider
violated his rights under the Constitution.