BARNEY v. D'ILLIO

Filing 15

OPINION. Signed by Judge Noel L. Hillman on 1/6/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
STEVEN E. D’ILLIO, et al.,
:
:
Respondents.
:
___________________________________:
LESTER S. BARNEY,

Civ. No. 15-0057 (NLH)
OPINION

APPEARANCES:
Lester S. Barney, # 721875C/537748
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08608
Petitioner, pro se
Jennifer L. Bentzel
Office of the Prosecutor, Burlington County
49 Rancocas Rd.
P.O. Box 6000
Mount Holly, NJ 08060
Counsel for Respondents
HILLMAN, District Judge
This matter is presently before the Court upon receipt of a
Motion for Relief from Order (ECF No. 9), and a Motion to Strike
(ECF No. 10) by Petitioner, Lester S. Barney.
filed an Opposition. (ECF No. 12).

Respondents have

For the reasons set forth

below, Petitioner’s Motion for Reconsideration and Motion to
Strike will be DENIED.

I.

BACKGROUND AND PROCEDURAL HISTORY

On or about January 5, 2015, Petitioner filed the instant
Petition for Writ Habeas Corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1).

The case was previously administratively

terminated due to Petitioner’s failure to either prepay the
filing fee or submit a complete application for leave to proceed
in forma pauperis. (ECF No. 2).

Thereafter, Petitioner paid the

$5.00 filing fee for a habeas petition as required by Local
Civil Rule 54.3(a).

Petitioner also filed a Motion for Relief

from Judgment (ECF No. 3), which the Court determined was more
accurately a Motion to Re-Open his case.

Accordingly, on March

23, 2015, the instant case was reopened for review by a judicial
officer and Respondents were directed to file an Answer to the
Petition. (ECF No. 4).
On June 24, 2015, Respondents filed their Answer to the
Petition. (ECF No. 5).

Petitioner then filed a Motion to

Appoint Pro Bono Counsel (ECF No. 6), which included an in forma
pauperis application, as well as an Application for Emergency
Relief (ECF No. 7).

On July 30, 2015, the Court issued an Order

denying Petitioner’s Motion to Appoint Pro Bono Counsel, granted
his request to proceed in forma pauperis, and granted his
Application for Emergency Relief, which was more accurately a
request for an extension of time in which to file his Traverse
to Respondents’ Answer. (ECF No. 8).
2

On August 13, 2015, Petitioner filed a “Motion for Relief
from Order, which is essentially a motion for reconsideration of
the Court’s July 30, 2015 Order.

In his motion, Petitioner

seeks to “correct a manifest error of law and facts upon which
[the Court’s July 30, 2015 Order] was based.” (Mot. for Relief
from Order 7, ECF No. 9).

Specifically, Petitioner contends

that the Court erred in its decision to deny Petitioner pro bono
counsel.
First, Petitioner asserts that it was error for the Court
to cite to the cases of Parham v. Johnson, 126 F.3d 454 (3d Cir.
1997), and Tabron v. Grace, 6 F.3d 147, 155–56 (3d Cir. 1993) in
its analysis of whether the appointment of pro bono counsel was
appropriate.

Petitioner states that because Parham and Tabron

were filed under 42 U.S.C. § 1983, rather than the statute under
which Petitioner filed the instant case, 28 U.S.C. § 2254, the
factors addressed in those cases are not relevant to whether pro
bono counsel should be appointed in the instant case.
Petitioner further states that he is entitled to counsel.
In support of this contention, Petitioner cites to 18 U.S.C. §
3006A(a)(2)(B).

Petitioner also asserts that his Application

for Pro Bono Counsel was a “contract” and he contends that
“[t]he Court ‘overlooked’ all other elements of that contract.”
(Mot. for Relief from Order 9, ECF No. 9).

Petitioner

reiterates the argument set forth in his initial motion for pro
3

bono counsel and states that he has “cause shown” to proceed to
an evidentiary hearing; therefore, the appointment of counsel is
required. (Id.).

Finally, Petitioner cites case law in support

of the proposition that he is entitled to the appointment of
counsel under the Sixth Amendment of the United States
Constitution. (Mot. for Relief from Order 9-10, ECF No. 9).
In the final pages of his Motion for Relief from Order,
Petitioner states that “[t]he Judge was made known of the
commission of a felony against Mr. Barney to satisfy 18 U.S.C. §
4.” (Mot. for Relief from Order 10-11, ECF No. 9).

Petitioner

states that a judgment filed with Respondents’ Answer was not
certified as final and, therefore, is “documentary evidence”
that Petitioner is in custody in violation of the Constitution
or laws of the United States. (Id.).
With respect to his Motion to Strike (ECF No. 10),
Petitioner “objects to the Answer” filed by Respondents and asks
that the Court “sua sponte strike the answer.” (Mot. to Strike
6, ECF No. 10).

In support of his motion, Petitioner states

that the Answer contains and relies on information that is
outside of the record.

In particular, Petitioner points to

statements of certain individuals and claims that the trial
court rejected these statements. (Mot. to Strike 7, ECF No. 10).
Petitioner contends that Respondents are attempting to

4

“circumvent the [previous] judicial determinations on those
matters” by introducing the statements in their Answer. (Id.).
Petitioner further contends that Respondents have
improperly expanded the record and states that Respondents have
included transcripts which were “never made part of the record,
as well as an altered letter, and other statements aforecited
[sic] deemed ‘immaterial[.]’” (Mot. to Strike 8, ECF No. 10).
Petitioner also points out that counsel for Respondents
failed to make a timely appearance in this matter. (Mot. to
Strike 8-9, ECF No. 10).
As with Petitioner’s Motion for Reconsideration, the final
pages of his Motion to Strike include a discussion on the
“documentary evidence” presented which Petitioner believes
demonstrates that he is being held in violation of the
Constitution and the laws of the United States. (Mot. to Strike
9-11, ECF No. 10).
Respondents file a letter in opposition. (ECF No. 12).

As

to their failure to enter a timely appearance, counsel for
Respondents explains that she believed the Office of the
Attorney General’s referral letter dated April 2, 2015 served to
enter a formal appearance on the record. (Letter in Opp’n 1,
Sept. 14, 2015, ECF No. 12).

Counsel does not believe that

their mistake warrants striking the Answer.

5

With respect to the remainder of the Motion to Strike,
Respondents assert that Petitioner’s arguments are meritless.
Respondents contend that they submitted with their Answer only
documents which were part of the record below. (Letter in Opp’n
2, ECF No. 12).

In specific response to the Petitioner’s

assertions regarding the statements of certain individuals,
Respondents explain that these statements were submitted to the
trial court as appendices to its brief during the PostConviction Relief (“PCR”) proceedings.

Moreover, Respondents

deny filing any altered letter with this Court, as alleged by
Petitioner, and are unsure which letter, specifically,
Petitioner refers to. (Id.).
II.

DISCUSSION

A. Motion for Reconsideration
1. Standard
A motion for reconsideration may be treated as a motion to
alter or amend judgment under FED. R. CIV. P. 59(e), or as a
motion for relief from judgment or order under FED. R. CIV. P.
60(b), or it may be filed pursuant to Local Civil Rule 7.1(i).
The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Max’s Seafood Cafe ex rel. Lou–Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

A judgment may be

altered or amended only if the party seeking reconsideration
6

shows: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice. Id.
A motion for reconsideration may not be used to re-litigate
old matters or argue new matters that could have been raised
before the original decision was reached. P. Schoenfeld Asset
Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.
2001).

Mere disagreement with the Court will not suffice to

show that the Court overlooked relevant facts or controlling
law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339,
345 (D.N.J. 1999), and should be dealt with through the normal
appellate process, S.C. ex rel. C.C. v. Deptford Twp. Bd. of
Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003).
2. Analysis
Here, Petitioner asserts that reconsideration of the
Court’s Order denying pro bono counsel is necessary to correct a
clear error of law or fact or to prevent manifest injustice.

In

the July 30, 2015 Order, this Court noted that Petitioner had
established that he could not afford counsel on his own behalf;
but found that he had demonstrated the ability to present his
own case, and that he had failed to address any of the other
Tabron factors — specifically, (2) the complexity of the legal
7

issues; (3) the degree to which factual investigation will be
necessary and the ability of the litigant to pursue such
investigation; (4) the amount a case is likely to turn on
credibility determinations; and (5) whether the case will
require the testimony of expert witnesses. See Tabron, 6 F.2d at
155-156, 157 n.5.

Accordingly, the Court denied Petitioner’s

request for pro bono counsel.
Now, Petitioner asserts that it was error for the Court to
cite to Parham and Tabron.

In his motion, Petitioner correctly

cites to 18 U.S.C. § 3006A(a)(2)(B), which provides that counsel
may be appointed to an indigent habeas petitioner where the
“interests of justice so require.” See also 28 U.S.C. §
1915(e)(1) (“The court may request an attorney to represent any
person unable to afford counsel.”).

In determining whether the

interests of justice require appointment of counsel, a Court
must examine whether or not the petitioner has presented a
meritorious claim. See Biggins v. Snyder, 2001 WL 125337 at * 3
(D. Del. Feb. 8, 2001) (citing Reese v. Fulcomer, 946 F.2d 247,
263-64 (3d Cir. 1991)) (other citations omitted).

Next, the

Court must determine whether the appointment of counsel will
benefit the petitioner and the Court by examining the legal
complexity of the case and the petitioner's ability to present
his claims and investigate facts. See id. (citing Reese, 946

8

F.2d at 264; Parham, 126 F.3d at 457-58; Tabron, 6 F.3d at 15556) (other citations omitted).
“Where these issues are ‘straightforward and capable of
resolution on the record,’ or when the petitioner has ‘a good
understanding of the issues and the ability to present
forcefully and coherently his contentions,’ the court would not
abuse its discretion in declining to appoint counsel.” Id.
(citations and quotations omitted); see also Paul v. Attorney
General of New Jersey, 1992 WL 184358 at * 1 (D.N.J. July 10,
1992) (stating that the factors the court should consider in
appointing counsel include: “(i) the likelihood of success on
the merits; (ii) the complexity of the legal issues raised by
the complaint; and (iii) the ability of the prisoner to
investigate and present the case.”).
The factors set forth in Tabron, and discussed above,
require an assessment of the complexity of the legal issues in
the case, and contribute toward an informed determination as to
whether the appointment of counsel will benefit the petitioner
and the Court. See, e.g., Biggins, 2001 WL 125337 at * 3 (citing
Reese, 946 F.2d at 264; Parham, 126 F.3d at 457-58; Tabron, 6
F.3d at 155-56) (other citations omitted).
Accordingly, it was not clear error for the Court to cite
to Parham and Tabron and the Court’s analysis remains the same.
Namely, although Petitioner has established that he cannot
9

afford counsel on his own behalf, he has failed to show that the
appointment of counsel will benefit Petitioner and the Court.
Moreover, the Court’s finding that Petitioner has an ability to
present his own case is further reinforced by the filing of the
instant motions, in which Petitioner’s arguments are thoroughly
and coherently presented and which include citations to relevant
case law.
To the extent Petitioner argues that he is entitled to
counsel because his Application for Pro Bono Counsel was a
“contract” and “[t]he Court ‘overlooked’ all other elements of
that contract” (Mot. for Relief from Order 9, ECF No. 9), this
Court finds that this argument is unsupported and is plainly
without merit.

A unilateral request by a petitioner does not

form a contract which requires specific performance of the
relief requested.
To the extent Petitioner states that he is entitled to
counsel because he has “cause shown” to proceed to an
evidentiary hearing (Id.), this Court has not determined that an
evidentiary hearing is required at this time. See 28 U.S.C. §
2254(e)(2).

Accordingly, the appointment of counsel for this

purpose is not warranted.
Finally, Petitioner’s assertion that he is entitled to the
appointment of counsel under the Sixth Amendment of the United
States Constitution (Mot. for Relief from Order 9-10, ECF No.
10

9), is incorrect.

It is well settled that there is no Sixth

Amendment right to appointment of counsel in habeas proceedings.
See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990,
95 L.Ed.2d 539 (1987) (“Our cases establish that the right to
appointed counsel extends to the first appeal of right, and no
further.”); Parham, 126 F.3d at 456–57 (noting no statutory or
constitutional right of counsel conferred upon indigent civil
litigants); Reese, 946 F.2d at 263 (“There is no ‘automatic’
constitutional right to counsel in federal habeas corpus
proceedings.”), superseded on other grounds by statute, 28
U.S.C. § 2254(d).
For the reasons discussed above, Petitioner’s Motion for
Relief from Order (ECF No. 9) is DENIED.

The appointment of pro

bono counsel is not warranted at this time.

In the event that

future proceedings demonstrate the need for counsel, the matter
may be reconsidered either sua sponte by the Court or upon a
motion properly filed by Petitioner. See e.g., Saunders v.
Warren, No. 13-2794, 2014 WL 6634982, at *3 (D.N.J. Nov. 21,
2014) (denying without prejudice motion for the appointment of
pro bono counsel); Laster v. Samuels, No. 06-6017, 2007 WL
2300747, at *1 (D.N.J. Aug. 6, 2007) (same).

11

B. Motion to Strike
1. Standard
A district court may “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” FED. R. CIV. P. 12(f).

However, “[m]otions

to strike are generally viewed with disfavor, and will usually
be denied unless the allegations in the pleading have no
possible relation to the controversy, and may cause prejudice to
one of the parties.” Sliger v. Prospect Mortgage, LLC, 789 F.
Supp. 2d 1212, 1216 (E.D. Cal. 2011) (citing 5C CHARLES ALAN WRIGHT
& ARTHUR R. MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 1380 (2d ed.))

(cited in Shelton v. Hollingsworth, No. 15-1249, 2015 WL
2400780, at *2 (D.N.J. May 18, 2015)).
2. Analysis
As set forth above, Petitioner requests that the Court
strike Respondents’ Answer because “the State’s brief and
appendix . . . contain and rely on information that’s outside of
the record.” (Mot. to Strike 7, ECF No. 10).

However,

Respondents certify that there is nothing in their Answer, or in
the appendix to the Answer, that was not part of the record
below. (Letter in Opp’n 2, ECF No. 12).
Petitioner also alleges that Respondents have submitted an
“altered letter” (Mot. to Strike 2, 8, ECF No. 10).

However,

Petitioner does not specify which letter he believes was
12

altered, how it was altered, or how or if the alteration affects
the legal issues presently before the Court.

Respondents are

likewise uncertain which letter Petitioner refers to.
Nevertheless, they deny filing any altered letter with this
Court. (Letter in Opp’n 2, ECF No. 12).
Because Petitioner has failed to show that the entirety of
Respondents’ Answer is irrelevant to the case or causes him
unfair prejudice, the Court will not strike the Answer. See,
e.g., Shelton, No. 15-1249, 2015 WL 2400780, at *2.

Although

Counsel for Respondent concedes that she failed to enter a
timely formal appearance on the record, the Court finds that
this oversight does not warrant striking the entire Answer.
Accordingly, Petitioner’s Motion to Strike (ECF No. 10) is
DENIED.
III. CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Relief
from Order (ECF No. 9) and Petitioner’s Motion to Strike (ECF
No. 10) are DENIED.
An appropriate Order follows.

__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge

Dated: January 6, 2016
At Camden, New Jersey
13