BARNEY v. D'ILLIO
Filing
17
OPINION. Signed by Judge Noel L. Hillman on 5/1/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LESTER S. BARNEY,
Petitioner,
v.
STEVEN E. D’ILLIO, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
:
:
Civil Action No. 15-0057 (NLH)
OPINION
HILLMAN, DISTRICT JUDGE
Before this Court is the Petition for a writ of habeas
corpus of Petitioner Lester Barney (“Petitioner”), brought
pursuant to 28 U.S.C. § 2254.
ECF No. 1.
Following an order to
answer, Respondents filed a response to the petition, ECF No. 5,
and Petitioner filed a reply brief.
ECF No. 13.
For the
following reasons, the Court will deny the Petition, but will
grant a certificate of appealability.
I.
BACKGROUND
In an unreported opinion affirming defendant’s conviction
and sentence, the New Jersey Superior Court, Appellate Division,
on direct appeal, provided the following summary of the factual
background of Petitioner’s trial:
Following a seven-day trial, a jury found
defendant guilty of both purposeful or
knowing
murder
[of
his
wife]
and
interference with custody.
1
. . .
Defendant killed his wife Alla in the late
afternoon of September 29, 2003, following
a court appearance in which Alla obtained a
final domestic violence restraining order
against him. That order enjoined defendant
from having any contact with Alla.
In
addition, it awarded temporary custody of
their child, Danny, to Alla but allowed
defendant parenting time.
Around 5 p.m., defendant went to visit with
Danny at his daycare facility in Mount
Laurel.
Defendant regularly went to the
daycare facility for this purpose but he
would leave before Alla arrived to pick up
Danny.
Defendant parked his car at the adjacent
church parking lot and walked to the
playground to play with Danny.
After
playing with Danny for about twenty minutes,
defendant went inside to talk with the
daycare
facility’s
director,
Virginia
Eberling.
Defendant told Eberling he had
lost custody of Danny and then abruptly left
when his cell phone rang.
At approximately 5:40 p.m., Alla arrived to
pick up Danny and parked in the daycare
parking lot.
Upon entering the daycare
center, Alla asked Eberling about a bag of
Danny’s clothes but Eberling did not know
where the clothes were. Alla left with Danny
at approximately 5:45 p.m.
Although defendant left the daycare center
before Alla arrived, numerous witnesses
testified that they saw defendant or his car
in the area around the time Alla picked up
Danny.
For example, Jamie Brooks, an
assistant teacher, testified that she saw
defendant talking on the telephone and
2
pacing back and forth on the sidewalk near
the day care facility around the time of
Alla’s
arrival,
and
Danny’s
teacher,
Christina
Vorres,
testified
that
she
observed defendant in his car driving back
to the daycare center while Alla was there.
Eberling testified that she left the daycare
center around 6:05 p.m. As she was leaving
the parking lot, she noticed that Alla’s car
was
still
there.
This made Eberling
“uneasy,” so she stopped her car, got out and
walked over to Alla’s car. She peeked in the
window and saw Alla lying inside the car with
a long red hole in her neck and a slice across
her throat. Eberling screamed, ran back to
her car and drove to the police station where
she reported Alla’s apparent death.
The
police responded to the scene and found
Alla’s dead body in the car.
Around 7 p.m., defendant called Judith
Hanney and told her he wanted to come to her
home and “talk to [her] about something.”
. . .
Defendant arrived at the Hanney home with
Danny around 8 p.m.
Shortly thereafter,
defendant told Judith that “he did a dumb
thing today.”
When Judith asked what he
meant, defendant said that he went to the
daycare center to talk to Alla, that they
got into an argument, and that “there was a
knife.”
Defendant also said that he
“grabbed [Alla] by the wrists and [he] cut
her[.]” . . . At this point, Judith’s husband
Tom came home, and she told him what
defendant had said about inflicting a knife
wound upon his wife.
Tom then spoke to defendant while Judith sat
with Danny. According to Tom, defendant gave
him the following account of the murder:
3
Q.
Did he say what happened when
he went to the daycare center?
A.
He said that he waited for
Alla outside and when she came out
he and she sat in her car, I
believe it was, and that he was
trying to talk to her and then kind
of in a rush he said there was,
you know, an argument and a
struggle and there was a knife and
they struggled with the knife and
basically he said [“] I cut her[”]
and he made this motion.
. . .
At trial, defendant took the stand in his
own defense and presented a version of the
killing of his wife that could have
supported a defense of self-defense or
accident. According to defendant, he stayed
at the daycare facility because he had
Danny’s shopping bag of clothing and wanted
to give it to Alla.
He also hoped to
persuade her to allow him to take Danny to
his home for the night. He approached Alla’s
car with the bag of clothing and asked if he
could take Danny for the night.
Defendant gave the following version of what
occurred next:
She turned around and looked at me
and gave me a rather disgusted and
nasty look and said [“]fuck you[”]
and then she turned around and
reached into her car and I thought
she was going to call and use her
cell phone so I came over to her,
said [“]please don’t.[”] I didn’t
want her to call the police right
away.
She turned around and she
had a steak knife in her left hand
and as she wield[ed] around in
4
front of me, she cut the nail off
my left hand but I grabbed her
hand, her left hand with my right
hand and yelled [“]what the hell
are
you
doing?[”]
And
we
struggled for a moment.
She
grabbed the knife with her right
hand and the knife was losing -the knife was moving because we
were struggling and I know that’s
how she cut her finger on her right
hand.
At this point I’m saying
stop it and she raised her right
knee I think to probably knee me
in the groin and we both fell
backwards into the car. The knife
was in both of our hands and I
tried to turn so my back was to
Daniel, then the knife went right
into her throat.
It was an
accident.
And there was pulsing
blood everywhere. I got back out
and I grabbed Daniel and I put him
into my car and I went back to
holler and shouted her name and
looked at her and it was clear that
the wound was mortal and I took
her hand and I just cried and I
backed up, shut the door to the car
and I went back to my car.
The
only thing I was thinking [was
that] I had to get Daniel away, get
him to safety. I did some not so
smart things at that point but I
wasn’t thinking rationally.
I’d
just seen the most horrible thing
in my life.
You saw the images.
If you saw it when I saw it, it
was even terrible. I’m sorry.
Defendant then left the scene with Danny
without calling for help and threw the knife
used to inflict the fatal wounds upon Alla
out the window of his car.
5
On cross-examination, defendant initially
claimed he had inflicted only a single knife
wound upon Alla during their struggle.
However,
after
being
confronted
with
photographs and the medical examiner’s
testimony that he had cut not only both of
Alla’s jugular veins and both of her carotid
arteries but also her chin and jaw down to
the bone, defendant claimed the knife had
also “caught her chin."
Based on this evidence, the jury found
defendant guilty of murder and interference
with custody.
ECF No. 5-16 at 2–8.
Petitioner appealed his conviction and sentence.
The
Appellate Division affirmed on October 18, 2007, ECF No. 516, and the New Jersey Supreme Court denied certification on
February 29, 2008.
ECF No. 5-17.
Petitioner then filed a
petition for post-conviction relief (“PCR”) which was denied
in a letter opinion on July 29, 2010.
ECF No. 5-38.
Petitioner appealed the denial of PCR, and the Superior Court
of New Jersey, Appellate Division, affirmed the denial on
April 27, 2012.
ECF No. 5-53.
Petitioner then appealed to
the New Jersey Supreme Court, and on May 3, 2013, the New
Jersey Supreme Court remanded to the PCR court for an
evidentiary hearing on whether Petitioner asserted his right
to proceed pro se and the New Jersey Supreme Court retained
jurisdiction on the matter.
ECF No. 5-54.
6
The PCR court
held an evidentiary hearing on August 22, 2013.
75.
ECF No. 5-
In an opinion on October 24, 2013 (“Remand Opinion”),
the Superior Court, Law Division, concluded that Petitioner
did not make a clear and unequivocal request to proceed pro
se.
ECF No. 5-55.
Petitioner appealed and the New Jersey
Supreme Court denied certification on April 3, 2014.
5-58.
ECF No.
Petitioner then filed a habeas petition with this Court
which was executed on December 31, 2014.
ECF No. 1.
Petitioner
raises seven grounds for habeas relief in the instant
Petition:
1. In spite of defendant’s clear and unequivocal request to
proceed pro se, the court failed to hold a Faretta
hearing thereby denying defendant his right to counsel
guaranteed by the Fourth, Sixth and Fourteenth Amendments
to the United States Constitution. The appropriate
re[m]edy for such a violation is a new trial.
2. The defendant was denied his right to the effective
assistance of counsel guaranteed by the Sixth Amendment
of the United States Constitution when counsel failed to
investigate and put forth a blood splatter expert.
3. The trial court committed reversible error when, in lieu
of an official readback, allowed the jury to have a copy
of the entire testimony of Defendant Barney.
4. The trial court committed reversible error when, the
court failed to give a jury instruction of causation
and/or failed to mold the jury instructions to the[sic].
5. The trial court committ[e]d revers[i]ble error when it
provided the jury with an improper instruction on
inference, which removed material elements from t[he]
jury, denying defendant his right to a fair trial and due
process of law, guaranteed by the Sixth and Fourteenth
7
Amendments of the United States Constitution.
6. The trial court committ[e]d revers[i]ble error when it
allowed the state to introduce in its case in chief
evidence of a final restraining order, denying defendant
his right to a fair trial and due process of law,
guaranteed by the Sixth and Fourteenth Amendments of the
United States Constitution.
7. The defendant was denied his right to the effective
assistance of trial, appellate, and first post-conviction
counsels guaranteed by the Sixth Amendment of the United
[S]tates constitution when counsels failed to investigate
and raise the issues contained in g[r]ounds one through
six of this petition.
ECF No. 1 at 12-24.
Respondents filed an answer to the habeas petition arguing
that Petitioner’s claims are meritless.
II.
ECF No. 5.
LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n behalf
of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
A
habeas petitioner has the burden of establishing his entitlement
to relief for each claim presented in his petition based upon
the record that was before the state court.
See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, 567 U.S. 37, 40–41 (2012).
Under the statute, as
amended by the Anti-Terrorism and Effective Death Penalty Act,
8
28 U.S.C. § 2244 (“AEDPA”), district courts are required to give
great deference to the determinations of the state trial and
appellate courts.
See Renico v. Lett, 559 U.S. 766, 772–73
(2010).
Where a claim has been adjudicated on the merits by the
state courts, the district court shall not grant an application
for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
Federal law is clearly established
for these purposes where it is clearly expressed in “only the
holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court.
See Woods v. Donald, 135 S. Ct. 1372,
1376 (2015).
A state court decision is “contrary to” federal law “if the
state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.”
9
Williams v. Taylor, 529
U.S. 362, 413 (2000).
A state court decision is an
“unreasonable application” of federal law if the state court
“identifies the correct governing legal principle,” but
“unreasonably applies that principle to the facts of the
prisoner’s case.”
Id.
Habeas relief may not be granted on the
basis that the state court applied clearly established law
incorrectly; rather, the inquiry is “whether the state court’s
application of clearly established federal law was objectively
unreasonable.”
Id. at 409–10.
A rule’s unreasonable
application corresponds to the specificity of the rule itself:
“[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.”
Harrington
v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks
and citation omitted).
“A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the
state court’s decision.”
Id. (internal quotation marks
omitted).
Where a petitioner challenges an allegedly erroneous
factual determination of the state courts, “a determination of a
factual issue made by a State court shall be presumed to be
correct [and the] applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing
10
evidence.”
28 U.S.C. § 2254(e)(1).
III. DISCUSSION
A. Ground One: Proceeding Pro Se
In his first ground for habeas relief, Petitioner argues
that he was denied his constitutional right to proceed pro
se.
ECF No. 1 at 12.
Petitioner raised this primarily as a
direct claim on PCR, but also mentioned it in the context of
ineffective assistance of counsel.
ECF No. 5-23 at 2–5.
The
trial court denied PCR and Petitioner appealed, raising this
argument as a direct claim, while at the same time raising a
general claim of ineffective assistance of counsel.
5-49 at 20–30, 46.
ECF No.
The appellate court affirmed the denial
of PCR and Petitioner appealed to the New Jersey Supreme
Court, which remanded to the PCR court for an evidentiary
hearing to make a finding of whether “defendant clearly and
unequivocally made a request to the trial court to represent
himself or whether defendant communicated with his attorney
to make such a request on his behalf.”
ECF No. 5-54.
The
PCR court held an evidentiary hearing and the judge concluded
that Petitioner did not make “a clear and unequivocal request
to proceed pro se”.
ECF No. 5-55 at 5.
Supreme Court denied certification.
The New Jersey
ECF No. 5-58.
In Ground
Seven of the instant petition, Petitioner argues that his
11
trial, appellate and PCR counsels were ineffective for all
the reasons stated in Grounds One through Six.
24.
ECF No. 1 at
Thus, Petitioner appears to raise this claim in the
context of ineffective assistance of counsel, in addition to
raising it as a direct claim.
The Court will first address
the direct claim, and will then address the ineffective
assistance of counsel claim.
The Superior Court of New Jersey, Law Division, on remand
from the New Jersey Supreme Court, which represents the last
reasoned decision on this matter, found that “the defendant
did not clearly and unequivocally make a request to the trial
court to represent himself and the defendant’s communication
with his attorney to make such a request on his behalf was
not clearly and unequivocally made.”
(capitalized in original.)
ECF No. 5-55 at 3
The court further explained:
In State v. Harris, 384 N.J. Super. 29, 57
(App. Div. 2006), the Appellate Division
stated “It is clear that pursuant to the Sixth
Amendment a defendant can represent himself in
criminal proceedings.”
(Citing State v.
Gallagher, 274 N.J. Super 285, 294, 644 A.2d
103 (App. Div. 1994). The Appellate Division
in Harris held that “The right to selfrepresentation, however, is not absolute. A
defendant
must
“‘voluntarily
and
intelligently’ elect to conduct his own
defense.” In order for a defendant to proceed
pro se the request must be made “clearly and
unequivocally”. Id. at 57. This request must
be made in a timely manner. Id. “It is only
12
after a party clearly and unequivocally
asserts his or her right to proceed pro se and
renounces the right to counsel that the court
undertakes an investigation, the goal to
determine the adequacy of the waiver.” Id. at
58.
In the present case, jury selection began for
the defendant on August 11, 2005. This trial
was held before the Honorable John A. Almeida
J.S.C.
Before jury selection began Judge
Almeida notified defense counsel that he had
received another letter from the defendant
Lester Barney. The letter was dated for July
21, 2005 but was marked received by Judge
Almeida’s Chambers for August 10, 2005.
In
the letter the defendant makes a request to
represent himself Pro-Se.
This letter,
according to Judge Almeidas’ Chambers, was
received 1 day before trial was set to begin
for the defendant.
During the evidentiary hearing the defendant
was unable to convince this Court that the
letter dated July 21, 2005 but stamped
received August 10, 2005 was a clear and
unequivocal request by the defendant to
proceed pro se.
Therefore, based on the
findings in Harris this defendant did not
clearly and unequivocally assert his right to
proceed
prose.
The
defendant
merely
mentioned wanting to proceed pro-se in a
letter
where
he
also
discusses
his
dissatisfaction with his attorney as it
related to receiving discovery.
In Harris,
the Appellate Division made it clear that the
right to counsel is in force until waived.
Id. at 58.
There is no evidence that was
presented to this Court during the Evidentiary
Hearing that this right to counsel was waived
by the defendant. As required in Harris, the
request to proceed pro se must be in a timely
manner. In this present case the letter was
not received until one day before jury
selection. The defendant failed to offer any
13
excuse or even offered a valid basis
disrupt his trial which was already
progress.
to
in
Although defense counsel argued, that Judge
Almeida was dismissive of the July 21, 2005
letter, this should not discount the weight of
the defendant’s request, however, it still
does not address the fact that the letter does
not only reference his desire to proceed prose. In the first two paragraphs the defendant
does mention he is interested in proceeding
pro-se, but [] overall the tone and the length
of the letter was to inform the Judge of his
dissatisfaction with his attorney.
The
Appellate Division, in Harris, held “.... the
court was under no obligation to affirmatively
suggest the option or hold a hearing into the
voluntary and knowing character of a waiver
never even expressed.” Id. at 60.
CONCLUSION
Based on the testimony presented at the
evidentiary hearing this Court does not find
that
the
defendant
made
a
clear
and
unequivocal request to proceed pro-se.
ECF No. 5-55 at 3–5.
In the instant Petition, Petitioner states that on July 14,
2005, he informed his trial counsel of his desire to proceed pro
se, and counsel advised him that he would receive a Faretta
hearing.
ECF No. 1 at 12.
After a week without a hearing, he
states that he wrote a letter to the court on July 21, 2005,
advising the court of his desire to proceed pro se.
19.
Id. at 12,
In the appendix in support of Petitioner’s pro se
supplemental brief to the Appellate Division in appealing the
14
denial of PCR, Petitioner provided a copy of the July 21st letter
(“Letter”), which forms the basis of the state court’s Remand
Opinion.
The Letter, dated Thursday, July 21, 2005, and stamped
by the chambers of John A. Almeida, J.S.C., on August 10, 2005,
states:
Honorable Judge John A. Almeida,
At my hearing on July 14, 2005, I informed the
court that if I had to choose between
receiving & reviewing my discovery and having
my pool attorney, I’ll choose the discovery.
The court instructed the pool attorney to at
least provide the defendant with the Grand
Jury minutes.
As of this writing, July 21,
2005 (7:18pm) the grand jury minutes have not
been received.
On July 14th 2005, after my hearing, I informed
my pool attorney that I will proceed on a PROSE basis. The pool attorney told me he would
inform the court and that a hearing would be
scheduled early the following week.
Since
it’s now Thursday, July 21, 2005 and no
hearing has been held, I’m not sure the court
is aware that the defendant will go forward
PRO-SE. This letter is to inform you of that
fact.
Acting now PRO-SE, I again move this honorable
court for an order of discovery, first
presented on September 20, 2004.
The
discovery motion is offered under Rule R 3:13
and R. 3:3-6[.]
In addition, the defendant again brings to the
courts attention, the issues stated in the
letter to the court dated July 7th 2005,
repeated here.
1. Acts
to
frustrate
or
15
impede
defendants
rights to discovery.
On September 20th 2004, I submitted a motion
for complete discovery.
On Novem[]. . . I
brought this and other issues to the courts
attentio[n] . . . I requested confirmation
from the court that the aforementioned motions
had been[] upon. In each case the courts only
action
was
to
forward
my
motion
and
correspondence to the pool attorney who in
turn has refused to place the motions before
the court.
Consequently, no order for
discovery yet exists. This cycle has repeated
itself to the point that the defendant has
been denied his right to the ac[cess] of the
court.
2. Denial of compulsory process
This
is
a
case
with
international
implications.
The prosecutor is having a
witness flown in from the Ukraine.
The
prosecutor,
wants
to
put
international
correspondence into evidence. I have asked to
bring 2 two defense witnesses from the Ukraine
to prove 2 two important issues.
While
compulsory process is a right under the Sixth
Amendment of the United States Constitution,
as well as Article 1 Para. 10 of the New
[J]ersey Constitution, yet the defendant has
been denied this right.
3. Key defense witness on military duty in
Kuwait.
From September 30th 2003, to October 5th 2005.
The defense has key witnesses available. In
October of 2004, the defendant provided my
pool attorney with a copy of the key witnesses
military orders and his email address.
The
witness has emailed the pool attorney but has
not gotten a response. In spite of being well
aware that the witness will not be available
until September or October of 2005, the pool
attorney inexplicably agreed to an August
trial date.
This is totally unfair to the
defense. Defendant requests that this case be
placed on the military list until the return
16
of the witness.
4. Denial of expert witness
The defendant has requested several experts to
counter misleading and untrue statements of
state witnesses. The issues are in the area
of DNA forensic issues and unreliability of
eye witness testimony.
Prosecutor has had at his disposal eleven
detective, two investigators from the medical
examiner office, the chief medical examiner,
several attorneys in the prosecutor’s office,
the county prosecutor, the state police
laboratory, aerial photography, and more that
the defendant may not be aware of.
Against
the vast resources of the state, the defendant
has a pool attorney and a public defender’s
office investigator for a few short weeks.
The defendant contends that a fair trial is
not possible in view of the lopsided resources
of the state.
Defendant brings to the courts attention the
MATTER OF CANNADY 126 N.J. 486 and requests an
order that the public defender’s office
provide the aforementioned witnesses.
5. Defense investigation not started.
As of June 30th 2005, not a single defense
witness has been fully interviewed. In fact
one important witness left his employment in
Okidata and has not been located since. It is
impossible to think that the investigation
will be anywhere near complete in the few
weeks until the trial.
Respectfully yours,
_______________
Lester S. Barney
ECF No. 5-50 at 99–100.
Criminal defendants have a right, under the Sixth
Amendment, to self-representation.
U.S. 806, 832 (1975).
Faretta v. California, 422
But “the right to self-representation is
17
not absolute.”
Indiana v. Edwards, 554 U.S. 164, 171 (2008).
“When an accused manages his own defense, he relinquishes, as a
purely factual matter, many of the traditional benefits
associated with the right to counsel.
For this reason, in order
to represent himself, the accused must ‘knowingly and
intelligently’ forgo those relinquished benefits.”
Faretta, 422
U.S. at 835; see also Martinez v. Court of Appeal of Cal.,
Fourth Appellate Dist., 528 U.S. 152, 161–62, (2000) (“The
defendant must voluntarily and intelligently elect to conduct
his own defense, and most courts require him to do so in a
timely manner”) (internal quotations and citations omitted).
“The information a defendant must possess in order to make an
intelligent election . . . will depend on a range of casespecific factors, including the defendant’s education or
sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.”
U.S. 77, 88 (2004).
Iowa v. Tovar, 541
Further, courts must “indulge every
reasonable presumption against waiver” of the right to counsel.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Finally, “[s]ince
the right of self-representation is a right that when exercised
usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to ‘harmless error’
analysis.
The right is either respected or denied; its
18
deprivation cannot be harmless.”
McKaskle v. Wiggins, 465 U.S.
168, 177 n.8 (1984); see also Buhl v. Cooksey, 233 F.3d 783, 806
(3d Cir. 2000).
In Faretta, because the accused had “clearly and
unequivocally declared to the trial judge that he wanted to
represent himself” and he did so “voluntarily [and
intelligently]” by “exercising his informed free will”, the
Supreme Court held that forcing him to accept a state-appointed
public defender “deprived him of his constitutional right to
conduct his own defense.”
Id. at 836 (emphasis added).
Here, the PCR judge found, on remand, that the Letter was
not a clear and unequivocal request to proceed pro se, nor a
waiver of appointed counsel.
ECF No. 5-55 at 4.
The judge
pointed to the “tone” and “length” of the Letter, as indicative
of Petitioner’s desire to “inform the Judge of his
dissatisfaction with his attorney” as opposed to a clear and
unequivocal desire to proceed pro se.
ECF No. 5-55 at 4.
The
judge also pointed to the fact that the Letter was received just
prior to jury selection, and that no evidence was presented
during the evidentiary hearing demonstrating that Petitioner
waived his right to counsel.
Id.
Thus, this Court must assess whether the state court’s
determination was contrary to, or an unreasonable application of
19
clearly established Supreme Court precedent; the Court finds
that it was not.
28 U.S.C. § 2254(d)(1).
From the outset, the
Court acknowledges that the Letter does appear unequivocal;
Petitioner stated his desire to proceed pro se twice, in capital
letters, and continued to make discovery demands prefaced with
the words “acting now PRO-SE”.
ECF No. 5-50 at 99–100.
Nevertheless, the Court is not permitted to review the state
court’s decision for simple error.
Instead, because this case arises under 28 U.S.C. § 2254,
we must ascertain whether the decision is contrary to clearly
established Supreme Court precedent; whether it is
“diametrically different,” “opposite in character or nature,” or
“mutually opposed.”
Fischetti v. Johnson, 384 F.3d 140, 147 (3d
Cir. 2004) (citing Williams, 529 U.S. at 364.
“[T]he state
court judgment must not merely be contrary to law as articulated
by any federal court.
It must contradict clearly established
decisions of the United States Supreme Court alone.”
(internal quotations omitted).
Id. at 147
In Fischetti, the Third Circuit
found the state court’s application of Faretta was in error, but
still found the decision “was not contrary to, or an
unreasonable application of, Supreme Court precedent.”
153.
The discussion of AEDPA deference in Fischetti is
20
Id. at
especially helpful in this case.
The Fischetti Court explained
that in deciding whether a state court’s decision is contrary
to, or unreasonably applies Supreme Court precedent, there is a
“requirement of particularity.”
Id. at 148. “The touchstone
precedents are not to be examined by looking to broad
pronouncements or generative principles in the opinion.
The
materially indistinguishable test presupposes a fact-specific
analysis of the Supreme Court case law.”
quotations omitted) (emphasis added).
Id. at 148 (internal
Moreover, while
“decisions of federal courts below the level of the United
States Supreme Court may be helpful to us in ascertaining the
reasonableness of state courts’ application of clearly
established United States Supreme Court precedent . . . we
emphasize that cases not decided by the Supreme Court do not
serve as the legal benchmark against which to compare the state
decision.”
Id. at 149–50 (internal citations and quotations
omitted).
Thus, this Court is required to “articulate the issue
presented to the state court precisely.”
Id. at 150.
Here, the
precise question under review by the state court, was whether
the “defendant clearly and unequivocally made a request to the
trial court to represent himself or whether defendant
communicated with his attorney to make such a request on his
21
behalf.”
ECF No. 5-54.
The state court found in the Remand
Opinion, based on the Letter, that he had not.
While the
Supreme Court has articulated that a request must be made
“clearly and unequivocally”, this Court finds no Supreme Court
precedent with “facts that are materially indistinguishable from
the facts surrounding” Petitioner’s actions in this case.
Fischetti, 384 F.3d at 150 (emphasis added).
Parsing out the state court’s Remand Opinion, the decision
first emphasized the element of timing; the fact that the Letter
was received one day prior to jury selection.
3.
ECF No. 5-55 at
The record reflects that the Letter was stamped by the court
on August 10th, the day prior to jury selection, and during the
evidentiary hearing, trial counsel testified that he read the
Letter only moments before the jury was brought to the court.
ECF No. 5-75 at 7.
There is little Supreme Court precedent that specifically
addresses the issue of timing of a Faretta request.
Nevertheless, in laying out the facts in Faretta, the Supreme
Court stated that Faretta’s request was made “[w]ell before the
date of trial” and “weeks before trial.”
422 U.S. at 807, 835.
See, e.g., Marshall v. Taylor, 395 F.3d 1058, 1060–61 (9th Cir.
2005) (explaining that because “the Supreme Court incorporated
the facts of Faretta into its holding . . . the holding may be
22
read to require a court to grant a Faretta request when the
request occurs weeks before trial”) (internal quotations
omitted).
In Martinez, the Supreme Court explained that “most
courts require [a Petitioner to assert the right to selfrepresentation] in a timely manner.”
added).
528 U.S. at 162 (emphasis
See, e.g., Parton v. Wyrick, 704 F.2d 417, 419 (8th
Cir. 1983) (affirming trial court’s refusal to let defendant
proceed pro se when request was made on morning of the trial);
United States v. Gillis, 773 F.2d 549, 559 (4th Cir. 1985)
(“right to self-representation can be waived by failure [to]
timely assert it”).
While the Third Circuit has found requests
to proceed pro se immediately before trial to be valid, see,
e.g., Alongi v. Ricci, 367 F. App’x 341, 346–47 (3d Cir. 2010)
(where a request was made “before jury selection”); United
States v. Peppers, 302 F.3d 120, 124 (3d Cir. 2002) (involving a
federal inmate who orally requested to proceed pro se “just
before jury selection”), no Supreme Court case has decided this
precise issue.
Thus, on this matter, the Court cannot say that
the state Court’s decision was contrary to, or an unreasonable
application of, Supreme Court precedent.
Next, the Remand Opinion pointed to the fact that the
Letter was not a clear and unequivocal request to proceed pro
se, because of the overall “tone” and “length” of the Letter.
23
ECF No. 5-55 at 4.
No Supreme Court precedent has precisely
defined the contours of the phrase “clearly and unequivocally.”
Were this Court to extrapolate general principles from that
phrase, the Letter would likely fall within that definition.
But that is not the Court’s role; the facts of Faretta and
subsequent Supreme Court decisions on this matter are simply too
distinguishable from the facts here.
In Faretta, the petitioner
had “requested that he be permitted to represent himself” and
the “judge sua sponte held a hearing”; the clear and unequivocal
nature of the request was not in dispute.
422 U.S. at 807–08.
Here, the precise question under review is whether Petitioner’s
request was clear and unequivocal.
The judge here, never held a
hearing or inquired into Petitioner’s request.
Similarly, in Indiana v. Edwards, 554 U.S. 164, 167 (2008),
it was undisputed that the petitioner had made “two selfrepresentation requests.”
In Edwards, the sole question was
whether the petitioner was mentally competent to waive his right
to counsel, facts entirely different from this case.
See also
Godinez v. Moran, 509 U.S. 389 (1993); Iowa v. Tovar, 541 U.S.
77 (2004).
There simply is no Supreme Court precedent that
precisely answers the question before us, with facts “materially
indistinguishable” from the facts here.
Indeed, the Supreme
Court denied a writ of certiorari in Raulerson v. Wainwright,
24
469 U.S. 966 (1984) on a case with facts somewhat analogous to
this case.
In Raulerson, the Eleventh Circuit had found the
petitioner had failed to make an “unequivocal” request to
proceed pro se, by, among other things, “sen[ding] a letter to
the judge requesting permission to appear pro se” which “[t]he
court did not immediately act on”, because he “did not pursue
the matter” and while “a defendant need not continually renew
his request to represent himself even after it is conclusively
denied by the trial judge, he must pursue the matter
diligently.”
1
732 F.2d 803, 808–09 (11th Cir. 1984) (internal
citations and quotations omitted).
A number of federal courts, including the Third Circuit,
have addressed the clear and unequivocal nature of written
requests to proceed pro se that were sent directly to the court.
In Brathwaite v. Phelps, 418 F. App’x 142 (3d Cir. 2011), the
Third Circuit, in an unpublished opinion, addressed a slightly
different issue — whether the petitioner had waived his right to
1
In a dissenting opinion, Justice Marshall found the
Eleventh Circuit erred, explaining that the Petitioner’s request
was clear and unequivocal and the court erred by failing to
conduct an inquiry: “the failure to hold a Faretta inquiry at
this time will do injury to the right recognized in Faretta.
Delay in holding a hearing after the right is unequivocally
asserted undermines that right by forcing the accused to proceed
with counsel in whom he has no confidence . . .” Raulerson v.
Wainwright, 469 U.S. at 969–70 (Marshall, J., dissenting)
(emphasis in original).
25
self-representation after his first counsel was relieved, and he
appeared to acquiesce to the appointment of his second counsel.
While the issue addressed was different, the Court went out of
its way to express, “[w]e agree with Brathwaite, the Supreme
Court of Delaware, and the District Court that Brathwaite
clearly asserted his right to self-representation and that the
Delaware trial court erred by not addressing his motion to
proceed pro se.”
Id. at 146.
Braithwaite had filed a “Motion
to proceed Pro Se” with the trial court, it was docketed, and
the trial court forwarded the motion to his counsel stating it
would “not consider pro se applications by defendants who are
represented by counsel unless the defendant has been granted
permission to participate with counsel in the defense.” 2
Id. at
143.
While the Court in Braithwaite found the petitioner had
“clearly” asserted his right to proceed pro se in the motion;
that is not dispositive.
Braithwaite is not a Supreme Court
2
The Court in Braithwaite outlined the points raised in
Braithwaite’s motion: “He stated that he thought ‘he would be
more effective than his present counsel,’ David Facciolo, and
that Facciolo refused to consider ‘many motions that
[Brathwaite] has requested to be filed that would have been very
instrumental to his release from custody.’ He also claimed that
he was ‘being conspired against by the Attorney General’s office
and by the attorney’s [sic] in the State of Delaware.’”
Brathwaite, 418 F. App’x at 143.
26
decision, nor was the Court addressing the precise issue before
this court.
As well, there are a number of factual differences.
In Braithwaite, the petitioner had filed a motion to proceed pro
se — which is “properly ‘perfected’ [in Delaware] when filed
with the court” — and the motion was docketed.
Id. at 143–44.
The court in Braithwaite, therefore, was certainly aware of the
motion and was likely aware of its contents.
Here, in contrast,
the record indicates that the trial judge never read the Letter;
on August 10, 2005, just prior to jury selection, the trial
judge stated:
THE COURT: I have another letter from Mr.
Barney and he’s not representing himself so
I’m going to give you this letter, Mr. Riley
[trial counsel].
I haven’t read the letter
from Mr. Barney. . . .
This letter is dated July 21st.
He’s not
representing himself.
I don’t know why he
continues to write the Court. I’m handing the
letter to you, Mr. Riley. . . .
ECF No. 5-77 at 2–3.
In Buhl v. Cooksey, 233 F.3d 783 (3d Cir. 2000), the Third
Circuit reversed a district court’s denial of habeas relief of a
state prisoner, finding the state court erred in rejecting the
petitioner’s request to represent himself.
In Buhl, the
petitioner “filed a written motion to dismiss counsel and
proceed pro se.
In an affidavit accompanying that motion Buhl
27
stated that he was dissatisfied with his attorney’s
investigation and that his lawyer was incompetent.”
Id. at 787.
The judge then held a hearing a month later, and denied Buhl’s
request of self-representation.
Id. at 792–93.
reiterated his request, which was again denied.
Buhl then
Id. at 793.
The Court explained that Buhl adequately asserted his right to
self-representation, stating that “[a] defendant need not recite
some talismanic formula hoping to open the eyes and ears of the
court to his request to invoke his/her Sixth Amendment rights
under Faretta.”
Id. at 792 (internal citation and quotations
omitted).
There are, however, a number of glaring differences between
Buhl, and the case before this Court.
First, in Buhl, it was
“undisputed that Buhl filed a written motion to proceed pro se .
. . and it [wa]s clear that the trial court understood that Buhl
was asserting th[at] right because the court held a hearing on
that motion a month later. . .”
original).
Id. at 792 (emphasis in
Here, those precise facts are in dispute and under
review; it is not evident that the Letter was a motion to
proceed pro se, nor if the trial court ever read or understood
the Letter as such.
Moreover, the Third Circuit “decided Buhl
[u]nder the pre-AEDPA standard and did not give any deference,
much less the significant deference that § 2254(d) now demands,
28
to [t]he state court’s legal findings.”
Brathwaite, 418 F.
App’x at 147 (internal quotations omitted).
dispositive for our purposes.
Thus, Buhl is not
See also, Dorman v. Wainwright,
798 F.2d 1358, 1366 (11th Cir. 1986) (wherein the Eleventh
Circuit affirmed the decision of the district court in finding
the petitioner had “clearly” invoked his right of selfrepresentation where the trial court’s “constant summary denial
of [petitioner’s] requests” prevented the court from determining
if he had made a “knowing and intelligent” waiver of his right
to counsel.)
Here, because the Court finds the facts of this
case unique, with no “materially indistinguishable” Supreme
Court precedent, the Court cannot say that the state court’s
decision was contrary to, or an unreasonable application of
Supreme Court law on this matter.
Finally, the state court explains that Petitioner never
waived his right to counsel.
ECF No. 5-55 at 4.
A review of
record reflects that the only time Petitioner asserted his right
to proceed pro se before the trial court was in the Letter which
the judge stated he had not read.
ECF No. 5-77 at 3.
It is
true that Petitioner was never given a hearing in which to
expressly waive that right, and the letter may indicate as much.
Nevertheless, for the reasons articulated above, the Court
cannot say that the state court’s decision was objectively
29
unreasonable.
Williams, 529 U.S. at 410.
See, e.g., Von Moltke
v. Gillies, 332 U.S. 708, 723 (1948) (there is a “strong
presumption against waiver of the constitutional right to
counsel”); Brewer v. Williams, 430 U.S. 387, 404 (1977) (courts
should indulge “every reasonable presumption against waiver” of
the right to counsel); Martinez, 528 U.S. at 161 (“it is
representation by counsel that is the standard, not the
exception”); Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.
1989) (requiring unequivocal request for waiver serves
“institutional purpose” of preventing defendant “from taking
advantage of the mutual exclusivity of the rights to counsel and
self-representation”); United States v. Purnett, 910 F.2d 51, 55
(2d Cir.1990) (“A district court is not obliged to accept every
defendant’s invocation of the right to self-representation.”).
The Court is therefore satisfied that while the state court
decision was likely in error, and while the Court finds the
decision troublesome, it was not contrary to, or an unreasonable
application of Supreme Court precedent.
As such, this claim
must be denied.
B. Ground Seven: Ineffective
Proceeding Pro Se
Assistance
of
Counsel
and
This necessarily leads the Court to Petitioner’s claim of
ineffective assistance of counsel — whether trial counsel was
30
ineffective in failing to raise Petitioner’s request to proceed
pro se.
In Petitioner’s brief on petition for PCR and in his
brief on appeal from the denial of PCR, Petitioner addressed
this claim in passing. 3
Further, he only alludes to it
parenthetically here, by stating “the defendant was denied his
right to the effective assistance of trial [counsel] . . . when
counsel failed to investigate and raise issues contained in
g[r]rounds one through six of this petition.”
ECF No. 1 at 24.
“To ‘fairly present’ a [federal] claim, a petitioner must
present a federal claim’s factual and legal substance to the
state courts in a manner that puts them on notice that a federal
claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255,
261 (3d Cir.1999) (citations omitted).
3
“A petitioner can
In a pro se supplemental letter brief on petition for PCR,
under the heading “DEFENDANT’S CONVICTION MUST BE REVERSED
BECAUSE THE COURT REFUSED TO ALLOW HIM TO PROCEED PRO SE OR
OTHERWISE HOLD A FAR[]ET[T]A HEARING, DESPITE DEFENDANT’S
REPEATED REQUESTS TO PROCEED PRO SE”, he states in his final
paragraph “Furthermore, trial counsel was ineffective for not
requesting a Faretta hearing on this matter and petitioning the
court to allow defendant to proceed pro se.” ECF No. 5-23 at 2,
5.
In Petitioner’s pro se brief to the Appellate Division on
appeal from the denial of PCR, his claim is less apparent. He
alludes to it only in passing; the heading reads: “THE DEFENDANT
WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL . .
.”, he explains, “The defendant repeats the legal arguments set
forth above in POINTS I [defendant clearly and unequivocally
notified the trial court that he desired to proceed pro se] . .
. as if set for[th] in its entirety herein.” ECF No. 5-49 at
46.
31
‘fairly present’ his claims through: (a) reliance on pertinent
federal cases; (b) reliance on state cases employing
constitutional analysis in like fact situations; (c) assertion
of the claim in terms so particular as to call to mind a
specific right protected by the Constitution; and (d) allegation
of a pattern of facts that is well within the mainstream of
constitutional litigation.”
Nara v. Frank, 488 F.3d 187, 198
(3d Cir. 2007) (citing McCandless, 172 F.3d at 260).
Nevertheless, because Respondents concede that all claims raised
in the instant Petition are fully exhausted, and Petitioner has
raised it, to some degree, below, the Court construes this claim
to be exhausted.
ECF No. 5 at 99.
In the New Jersey Supreme Court’s remand order, the
evidentiary hearing was mandated to assess both if the
“defendant clearly and unequivocally made a request to the
trial court to represent himself or whether defendant
communicated with his attorney to make such a request on his
behalf.”
ECF No. 5-54 (emphasis added.)
While it is not
certain whether this language is intended to include an
assessment of ineffective assistance of counsel, the Court
reads it as such.
Moreover, during the evidentiary hearing,
Petitioner’s defense counsel was called to testify, and was
questioned about Petitioner’s request to counsel to proceed
32
pro se, as well as counsel’s understanding of the contents of
the Letter.
ECF No. 5-75 at 5–14.
The Court, therefore,
turns to the Remand Opinion, in assessing whether the state
court’s decision on this matter was contrary to, or an
unreasonable application of, Supreme Court precedent.
28 U.S.C.
§ 2254(d)(1).
The Remand Opinion, cited in full above, does not
specifically address whether counsel was deficient, stating
generally: “the defendant did not clearly and unequivocally
make a request to the trial court to represent himself and
the defendant’s communication with his attorney to make such
a request on his behalf was not clearly and unequivocally
made.”
added).
ECF No. 5-55 at 3 (capitalized in original) (emphasis
The court further explained:
There is no evidence that was presented to
this Court during the Evidentiary Hearing that
this right to counsel was waived by the
defendant.
. . .
Based on the testimony presented at the
evidentiary hearing this Court does not find
that
the
defendant
made
a
clear
and
unequivocal request to proceed pro-se.
Id. 5-55 at 4–5.
While the Remand Opinion does not appear to address
ineffective assistance of counsel directly, the Court must still
33
grant AEDPA deference to the state court’s decision.
The
Supreme Court, in Johnson v. Williams, 568 U.S. 289, 298–301
(2013), has explained,
In [Harrington v. Richter, 562 U.S., [86, 100
(2011)], 131 S. Ct., at 785, we held that §
2254(d) ‘does not require a state court to
give reasons before its decision can be deemed
to have been ‘adjudicated on the merits.’
Rather, we explained, ‘[w]hen a federal claim
has been presented to a state court and the
state court has denied relief, it may be
presumed that the state court adjudicated the
claim on the merits in the absence of any
indication or state-law procedural principles
to the contrary.’ Id., at [99], 131 S. Ct.,
at 784–785.
. . .
Although Richter itself concerned a statecourt order that did not address any of the
defendant’s claims, we see no reason why the
Richter presumption should not also apply when
a state-court opinion addresses some but not
all of a defendant's claims”
. . .
In sum, . . .[w]hen a state court rejects a
federal claim without expressly addressing
that claim, a federal habeas court must
presume that the federal claim was adjudicated
on the merits—but that presumption can in some
limited circumstances be rebutted.
The Supreme Court has also stated that “[w]here a state
court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.”
34
Harrington, 562 U.S. at 98.
Thus, because Petitioner’s claim
has been presented to the state court, the Court must presume
the state court adjudicated this claim on the merits.
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.
U.S. Const.
The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of
the right by failing to render adequate legal assistance.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
See
Generally,
a claim that counsel’s assistance was so defective as to require
reversal of a conviction has two components, both of which must
be satisfied.
Id. at 687.
First, the defendant must “show that
counsel’s representation fell below an objective standard of
reasonableness.”
Id. at 687–88.
To meet this prong, a
“convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.”
Id. at 690.
The court must then determine whether,
in light of all the circumstances at the time, the identified
errors fell “below an objective standard of reasonableness.”
Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014).
Second, a petitioner must establish that counsel’s
“deficient performance prejudiced the defense so as to deprive
35
the defendant of a fair trial.”
Strickland, 466 U.S. at 669.
To establish prejudice, the defendant must show that “there is a
reasonable probability that the result of trial would have been
different absent the deficient act or omission.”
Id. at 1083.
On habeas review, it is not enough that a federal judge would
have found counsel ineffective.
The judge must find that the
state court’s resolution of the issue was unreasonable, a higher
standard.
Harrington, 562 U.S. at 101.
Based on the evidentiary hearing, the Court again finds
that while the state court’s decision on this matter may have
been incorrect, the Court cannot say that the decision is
“objectively unreasonable.”
Williams, 529 U.S. at 410.
During
the 2013 evidentiary hearing, trial counsel, Michael Riley, was
questioned about the events that took place on August 10, 2005,
on the day the trial judge refused to read the Letter.
5-75.
ECF No.
Mr. Riley first explained, on direct-examination, that at
times there was “friction” between him and Petitioner:
RILEY: And I can recall situations where it was like, in other
words, if you don’t do it my way, I’m going to do it myself
or words to that effect. Nothing was memorialized that I can
recall other than the letter that Judge Almeida gave me in
August that I discussed with him in the holding cell.
Id. at 6.
Mr. Riley then testified,
RILEY: As I recall that letter . . . [h]e said that he wanted
36
to proceed pro se and I said, well, that’s your right but
right now with the jury coming up and we’re getting ready to
proceed, we’ll have to have a hearing on that. You just can’t
walk in and represent yourself. You’ve got to go through a
process. And I said, well, that’s fine, then, you know, the
Judge is aware of your concerns and obviously it’s in the
letter and we’ll deal with it. But right now the jury was
being brought up in the elevators as I remember and the focus
at that time was get squared away and begin to pick the jury.
. . .
At that point, however, we terminated the conversation and we
went back out and began picking the jury. The conversation
in the holding cell didn’t take very long. It was relatively
short.
Q: Okay. And when you say the conversation was terminated,
do you recall Mr. Barney making any, any statement then as to
what he was going to do, if anything, on that issue of
proceeding pro se?
RILEY: I don’t recall. I don’t recall him saying anything
beyond our conversation. And I’ve really tried to stretch my
memory on this but I don’t recall having a conversation with
him on that topic after the conversation in the holding area.
I don’t recall anything, any conversation with him beyond
that conversation the day of the letter. And I don’t believe
he ever raised it with Judge Almeida on the record because
Mr. Barney wasn’t shy about piping up when he had an issue
and saying, well, Judge, I’d like to be heard on this and the
judge would accommodate him and listen to what he had to say.
I don’t recall him -- and I could be wrong about this, it’s
been a long time -- whether he ever brought it up sua sponte,
so to speak, on his own after that date.
Id. at 7–8.
Mr. Riley was then questioned by the State on cross-examination:
Q: When you say you don’t recall having any conversation with
him about proceeding pro se after the conversation in the
holding area, did you come to a conclusion as to how he wanted
to proceed?
RILEY: I don’t think, I don’t think I thought much about it
37
at that point because we were, like I said, in the process of
picking a jury and we went into that.
. . .
Q: If he had stated affirmatively that he wanted to proceed
pro se, would it have been your practice to bring it to the
attention of the Judge?
RILEY: Oh, sure. In fact, that is what he, essentially he
had done that in the letter. He had indicated that he wanted
-- well, you’ve seen the letter.
The letter speaks for
itself, but I don't recall ever going back to him and saying,
Mr. Barney, you know, do you still want to go pro se or
anything like that. I don’t think we had that conversation
or any conversation like that.
I just don’t recall if we
did.
Q: Okay. And that is the letter that the Judge said he didn’t
read, though, however?
RILEY: That is the one that he said -- I recall him saying he
didn’t read it. I don’t know, I haven’t seen – I looked at
the transcript but I don’t remember exactly what he said.
. . .
Q: Okay. The Judge said he didn’t read it. If during your
conversation with Mr. Barney if he had said affirmatively I
want to proceed pro se, would you have addressed that to the
Judge at that time?
RILEY: If he had said to me I want to go pro se?
Q: Yes.
RILEY: That definitively?
Q: Uh huh.
RILEY: Yeah.
Q: Okay. Thank you. Was it your practice to bring matters
that the defendant, that Mr. Barney raised to your attention
to the Judge?
38
RILEY: Mr. Barney’s practice was if he had issues he would
raise them with the Judge and the Judge I think made reference
in here, this transcript to receiving a number of letters.
Actually it was in this transcript in July that he received
letters from Mr. Barney, that he read all the letters and he
had a complete file. He assured Mr. Barney because Mr. Barney
said something to the effect he was concerned about whether
all the letters were being kept or preserved somehow and Judge
Almeida I think made a point, I think in this transcript in
July, that he had all the letters from Mr. Barney and he had
a file of all the letters from Mr. Barney so he made reference
to Mr. Barney in response to Mr. Barney that I have all your
letters, I’ve read them and they’re in my file. Now that was
prior to August.
. . .
Q: And just to clarify, if he had said definitively he wanted
you to tell the Judge that he wanted to proceed prose, you
would have told the Judge?
RILEY: If he said to me, if he said to me unequivocally, I
want to proceed pro se, I would have told the Judge. I would
have given the Judge the letter. I would have told the judge
this is what his wishes are and we would have had to proceed
at that point and deal with it.
Id. at 8–10.
Mr. Riley then testified further on redirect:
Q: So at that point, your understanding was that Judge Almeida
had not read the letter?
RILEY: That’s my recollection of him, said he had not read
the letter.
Q: But at that point did you provide the letter to Judge
Almeida or reference it to Judge Almeida?
RILEY: It’s inconceivable to me that I didn’t reference it in
some way to Judge Almeida. Given the circumstances and given
Mr. Barney, I would have, I know I would have referenced it
to Judge Almeida, either giving him the letter, basically
39
giving him the letter and telling him what it obviously
suggests or I would have said to him, Judge, we’re going have
to have a hearing because the man’s saying he was going to go
pro se. Do I remember that? No. I don’t remember talking
to Judge Almeida directly about it but I can’t imagine in a
situation that way that I had information such as this and
did not obviously tell the trial judge at some point either
prior or during the jury selection . . .
Id. at 11–12.
And finally, on re-cross, Mr. Riley testified:
Q: Did Mr. Barney equivocate a lot? Did he equivocate in his
proceeding pro se versus being represented by you?
RILEY: At what point in time?
Q: I mean, did he threaten to proceed pro se, did he use it
as a bargaining chip sort of I guess?
RILEY: There were times when he said to me if I don’t–you’re
not doing this right, you’re not doing that right, if you
don’t do it this way or that way, then I’m going to go pro
se. It was not -- it was one of those conditional kind of
conversations. That went over a relative -- not a long time
but a period of time. There was never a time when he said to
me that I recall other than this time frame we’re talking
about that there was an indication that he wanted to go pro
se, okay? It was always conditional on something.
Q: And you don’t recall having a conversation with him after
the July 14th hearing where he stated affirmatively that –
RILEY: I don’t, I don't recall that. Now if he says that we
had a meeting and I discussed it with him, maybe his
recollection’s better than mine. I just don’t remember that.
I do specifically remember the conversation in the holding
room, the letter in my hand talking to him about the letter.
That I do remember.
Q: And at that point he didn’t indicate one way or the other
how he wanted to proceed?
RILEY: He, what he said to me was consistent with what he
40
said in the letter and that’s why I know when I was
questioned, you know, by Mr. Farrow [attorney for petitioner]
about what I would have done with it, that’s why it seemed - because if he had said to me, hypothetically, if I took the
letter back there and he said, ah, you know, don’t worry, I
don’t mean that, I would have been like, all right, you don’t
mean that, but I don’t think what we discussed, and I don’t
remember the exact words but I do remember there was a
conversation that he did not disavow the letter, okay? And
that’s why when Mr. Farrow asked me, I know I would have
brought that to the Judge’s attention in some fashion so the
Judge was aware of what the contents of the letter, cause the
Judge had to have this letter.
I mean it’s impossible he
could have had a file of correspondence from Mr. Barney and
not have this letter at some point. He had to. Either I
would have given it to him or he would have had a copy of it
because it’s obviously a very significant letter and Judge
Almeida as he indicated had a file filled with Barney letters.
That’s how I recall it.
Id. at 12–13.
Petitioner then testified at the evidentiary hearing,
explaining that immediately after the July 14th hearing, in which
Petitioner expressed discovery concerns, Petitioner spoke with
Mr. Riley and informed him: “I had decided that I’m going to go
pro se and he should go downstairs and tell the judge . . .
well, naturally I presumed [Mr. Riley] went downstairs and told
Judge Almeida.”
ECF No. 5-75 at 15–16.
Petitioner then
explained that he “presumed that [Mr. Riley] was seeing me in
his role as stand-by counsel. . .” after the July 14th hearing.
Id.
Petitioner then testified on direct-examination about the
events that took place on August 10th, at the hearing in which
the judge refused to read his Letter:
41
Q: And do you recall in your review of the transcript where
Judge Almeida referenced the letter that he had received from
you?
A: Yes. Most definitely. I’ll never forget it. The Judge
was very angry as he was waving the letter as he came through
the door right behind Your Honor and he was extremely angry
and he looked directly at me and told me that Mr. Barney is
not representing himself.
Q: What was, what was your understanding of what he meant
when he said that?
A: My request was denied.
Q: However, do you also recall him saying I haven’t read the
letter from Mr. Barney at that point?
A: I did hear him say that and I felt, you know, that’s sort
of inconceivable that a letter so important that on the eve
of trial would not be referenced or even read. Frankly, sir,
I didn’t believe it.
Q: But again after he said he’s not representing himself, did
at any point you think that his decision was not final on
that issue, meaning Judge Almeida’s?
A: Sounded final to me until I addressed it again with Mr.
Riley.
Q: And now let’s talk about that. So at some point on August
10th you recall having a conversation with Mr. Riley about
this letter?
A: Yes. We were, I think that was jury selection and again
I was in the holding area and Mr. Riley came back with the
letter.
Q: And what, if anything, do you recall Mr. Riley telling you
about the letter?
A: I asked -- I brought it up. I said you have the letter in
your hand. You know what I want and I know what he said. He
said the Judge addressed that.
42
. . .
Q: So really what I was going to ask first, though, Mr.
Barney, is was there any point that you recall that perhaps
did not make the record, okay, and was not in the transcript
-- we know what’s in the transcript.
Was there any point
that you recall you said something to Judge Almeida about
your desire to represent yourself after he referenced this
letter?
A: Well, no, because it was clear to me that a decision had
been made.
Q: So that was the answer to my next question.
not do that?
Why did you
A: Well, he just told me I wasn’t going to represent myself
so that was, that was clear, it was done. I mean, my request
was denied. So we went on to -- of course, that day I did
address it with Mr. Riley. As a matter of fact, he did speak
of that. And he told me the Judge had already addressed it.
Id. at 17–18.
Referring to the testimony of Mr. Riley, the Court first
notes that there is nothing in the record to indicate that Mr.
Riley ever spoke with the trial judge about the contents of the
Letter or Petitioner’s request to proceed pro se.
Nevertheless,
the Court cannot say that the state court’s decision was
unreasonable under Strickland.
While Mr. Riley’s memory during
the evidentiary hearing was imperfect, at best, he did indicate
that Petitioner often complained to him about his
representation, and threatened to proceed pro se more than once.
ECF No. 5-75 at 5–6.
Further, Mr. Riley testified that had
Petitioner unequivocally told counsel that he wanted to proceed
43
pro se, counsel would have brought that to the attention of the
court and would have given the judge the Letter.
Id. at 9–10.
Further, trial counsel testified that Petitioner never raised
the issue again with him after the single conversation they had
regarding the Letter, just moments before the parties were to
begin picking the jury.
Id. at 7–8.
While it is true that Petitioner testified to having told
Mr. Riley in clear terms that he intended to proceed pro se, and
explained that he never raised the issue again because he
believed the judge denied his request, the state court did not
make a factual finding on that matter.
As such, the state court
decidedly rejected Petitioner’s account, in finding Petitioner
did not raise the matter of self-representation clearly and
unequivocally.
As such, the Court cannot say that the state
court’s decision was objectively unreasonable, insofar as trial
counsel’s performance did not fall below an objective standard
of reasonableness, as required under Strickland.
Further, with respect to the prejudice prong of Strickland,
the Court notes that while the underlying constitutional
violation of one’s right to self-representation is treated as a
structural error and a petitioner would be entitled to reversal
without inquiring into prejudice, McKaskle, 465 U.S. at 177, the
Supreme Court has never directly answered whether the analysis
44
of prejudice is altered when the denial of the right to selfrepresentation is raised in the context of ineffective
assistance of counsel.
In a recent Supreme Court decision,
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017), the Supreme
Court discussed the interplay between structural errors and
ineffective assistance of counsel.
In Weaver, the accused
claimed his right to a public trial was violated, arguing his
counsel was ineffective for failing to object to a courtroom
closure which took place during his trial.
Id. at 1906.
The
Massachusetts Supreme Judicial Court affirmed the denial of his
claim recognizing that while a right to a public trial is
structural, the accused had failed to demonstrate prejudice.
Id. at 1907.
The Supreme Court granted certiorari and held that “when a
defendant raises a public-trial violation via an ineffectiveassistance-of-counsel claim, Strickland prejudice is not shown
automatically.”
Id. at 1911.
Thus, the prejudice prong of
Strickland was maintained in that case.
The Supreme Court
constrained its holding to the facts of that case, stating that
the opinion was decided “specifically and only in the context of
trial counsel’s failure to object to the closure of the
courtroom during jury selection.”
Id. at 1907.
Recognizing that the holding in Weaver is claim-specific,
45
there is no clearly established Supreme Court precedent that has
decided the issue in the context of self-representation.
See
also Pirela v. Horn, 710 F. App’x 66, 83 n.16 (3d Cir. 2017)
(citing Weaver, 137 S. Ct. at 1911) (discussing the holding in
Weaver in the context of waiver of the right to a jury trial,
and appearing not to do away with the prejudice prong of
Strickland: “[u]nder Weaver, even if [petitioner’s] counsel’s
conduct led to structural error, that term ‘carries with it no
talismanic significance’ because [petitioner] cannot show either
a reasonable probability of a different outcome in his case, or
that the error was ‘so serious as to render his. . .trial
fundamentally unfair.’ ”)
Under the prejudice prong of Strickland, it is Petitioner’s
burden to demonstrate that “there is a reasonable probability”
that absent his counsel’s failure to raise Petitioner’s request
to proceed pro se, “the result of the proceeding would have been
different.”
Strickland at 694.
Petitioner simply has not met
this burden; he has failed to present any facts or reasoning to
support the allegation that the outcome of the case would have
been altered.
him.
The Court simply cannot invent those reasons for
See, e.g., Weaver, 137 S. Ct. at 1908 (“the defendant’s
right to conduct his own defense . . . when exercised, usually
increases the likelihood of a trial outcome unfavorable to the
46
defendant.”) (internal quotations and citations omitted);
Faretta, 422 U.S. at 834 (“[i]t is undeniable that in most
criminal prosecutions defendants could better defend with
counsel's guidance than by their own unskilled efforts.”)
While
the Court is quite troubled by what occurred, the Court cannot
say that the state court decision was objectively unreasonable.
Therefore, this claim must similarly be denied.
C. Ground Two:
Testimony
Ineffective
Assistance
of
Counsel,
Expert
Petitioner next argues that his trial counsel was
ineffective for failing to present a blood spatter expert which
was necessary to substantiate his version of the stabbing.
ECF
No. 1 at 14, 19.
The Superior Court of New Jersey, Appellate Division, in
affirming the denial of PCR, addressed this claim and found it
meritless:
Even if trial counsel had presented blood
spatter evidence of the sort reflected in the
expert report of Norman Reeves, defendant has
failed
to
establish,
in
light
of
the
conflicting inferences that could be drawn
from such evidence and the overwhelming
evidence of defendant’s guilt, that there is
a “reasonable probability” the outcome of the
trial would have been different if such
evidence had been presented at trial.
See
Strickland v. Washington, 466 U.S. 668, 694–
95, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674,
698 (1984).
Even if such expert opinion
evidence could have created doubt as to
47
whether the murder occurred precisely as
theorized by the prosecutor, the photographs
of the victim’s wounds and the medical
examiner’s testimony regarding those wounds
proved beyond any doubt that the victim’s
death could not have occurred by accident or
in self-defense, as defendant testified.
Therefore, the failure to present such expert
testimony did not constitute ineffective
assistance of counsel.
ECF No. 5-53 at 7.
Here, the state court appropriately applied Strickland to
the facts of this case.
As evidenced by the trial transcript,
there was ample evidence for the jury to find Petitioner guilty
of the murder of his wife, such that he was not prejudiced by
his trial counsel’s failure to introduce a blood spatter expert.
Thus, as the state court correctly articulated, even had the
expert been introduced, it is not reasonably probable that the
outcome would have changed.
See Strickland, 466 U.S. at 681;
Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) (“Our
review of ineffective assistance of counsel claims does not
permit us, with the benefit of hindsight, to engage in
speculation about how the case might best have been tried.
therefore accord counsel’s strategic trial decisions great
deference”); Harrington, 562 U.S. at 106 (“Rare are the
situations in which the wide latitude counsel must have in
48
We
making tactical decisions will be limited to any one technique
or approach.”) (internal citations and quotations omitted).
The evidence against Petitioner was substantial.
The
record shows that Mr. Hanney testified that Petitioner told him
“I grabbed her by the wrists and I cut her.”
85.
ECF No. 5-65 at
No blood was found on the clothing Petitioner was
reportedly wearing that day.
Id. at 41.
Detective McDowell, a
crime scene investigator, testified that there were no signs of
struggle at the crime scene, and the victim was found in the car
with sunglasses still on her head.
Id. at 48–50.
A medical
examiner testified that based on the injuries, the weapon
causing the injury cut deep into the victim’s neck, past the
Adam’s apple, the pharynx, and the cervical vertebra.
5-66 at 69.
ECF No.
Based on these facts, and more that can be gleaned
from the record, the evidence weighed heavily against
Petitioner.
As such, the state court was correct in rejecting
this claim, and the Court will deny habeas relief on this claim.
D. Ground Three: Trial Transcript
In Ground Three, Petitioner argues that the trial court
erred in providing the jury with a transcript of witness
testimony instead of providing them with a readback of the
testimony.
ECF No. 1 at 15.
The Appellate Division, on Petitioner’s direct appeal,
49
reviewed this claim and found it meritless: 4
During deliberations, the jury requested a
readback of defendant’s testimony regarding
his struggle with Alla and of the entire
testimony of the medical examiner, Dr. Dante
Ragasa. The trial court commented that it
would be quite time-consuming to read back
all this testimony and asked counsel:
[D]oes it make sense to simply
have [the court reporter] certify
the record of that testimony in
[the] form of a transcript and
give that to them in its entirety
rather than read it back?
Defense counsel responded, “I would suggest
that, Judge, it makes more sense[,]” and the
prosecutor
had
no
objection
to
this
proposal.
However, defendant now argues
that it was reversible error for the court
to provide the jury with transcripts of this
testimony rather than to have it read back
in the courtroom.
4
Petitioner also raised this claim on his appeal from the
denial of PCR; the Appellate Division denied this claim stating
the claim was barred because it had been addressed previously on
Petitioner’s direct appeal, but adding:
Moreover, even if this argument were not
foreclosed by Rule 3:22–5, we would conclude
that
because
defendant’s
trial
counsel
acquiesced in the court’s decision to provide
the jury with a transcript of trial testimony
rather than a readback, and defendant has made
no showing of how he could have been
prejudiced by this procedure, it did not
constitute reversible error.
ECF No. 5-53 at 6–7.
50
A readback of testimony at the request of
the jury is discretionary with the trial
court. State v. Wilson, 165 N.J. 657, 660
(2000).
Although the court rules do not
contain specific authorization for the trial
court to provide the jury with a transcript
of trial testimony rather than to read back
that testimony in open court, there is also
no prohibition against this procedure.
Moreover, defendant specifically consented
to the procedure and has not shown how he
could have been prejudiced by the court
providing the jury with transcripts of trial
testimony rather than having it read back
in open court.
In addition, the court
carefully instructed the jury regarding
their responsibilities when reading the
transcripts.
Therefore, we conclude that
the use of this procedure did not constitute
reversible error.
ECF No. 5-16 at 12–13.
While this claim appears to present matters purely of
state law, to the extent this Court can construe it as a federal
claim, the court’s error, if any, is harmless.
Under the
harmless error standard, a petitioner will not be entitled to
habeas relief unless s/he has demonstrated “‘actual prejudice,’
in the form of a substantial and injurious effect or influence
in determining the jury’s verdict.”
Eley, 712 F.3d at 847
(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Petitioner has not articulated, nor can the Court perceive of
any actual prejudice from the judge presenting the jury with the
transcript of the witnesses.
The jury had already heard
51
testimony from these witnesses, such that the transcript
provided nothing new.
Further, the judge assured the jury that
the transcript was certified as accurate.
The trial judge
stated that the court reporters “will not under any condition .
. . release a transcript to anyone without having the time to
review it and to certify it as being accurate.”
8.
ECF No. 5-71 at
Finally, the judge articulated that because the jury
requested a readback of testimony from the defendant related to
his struggle with the victim, which would be nearly impossible
to parse out and would encompass over 200 pages, it was more
appropriate to give the jury the entire transcript.
71 at 8-9.
ECF No. 5-
Because Petitioner has failed to demonstrate
substantial harm from the alleged error, the state court did not
violate clearly established federal law in denying this claim.
Therefore, the Court denies habeas relief on this claim.
E. Ground Four: Jury Instruction on Causation
In Ground Four, Petitioner argues that the trial court
erred in failing to instruct the jury with respect to causation.
ECF No. 1 at 17.
Petitioner explains that the court instructed
the jury with the model jury instructions reserved for killings
where causation is not at issue, but Petitioner’s version of
the victim’s death highlights that causation was at issue.
Id.
Petitioner raised this claim in a pro se supplemental brief
52
on direct appeal, ECF No. 5-14, and the Appellate Division
affirmed stating only: “[d]efendant’s arguments are clearly
without merit. R. 2:11-3(e)(2).”
ECF No. 5-16 at 10.
Petitioner’s brief to the Appellate Division on direct
appeal, cited only to state law in support of his claim.
Petitioner’s claim has not been “fairly presented”.
Thus,
See Duncan
v. Henry, 513 U.S. 364, 365–66 (1995); see also McCandless,
supra, 172 F.3d at 261 (explaining that a federal claim is only
“fairly presented” where the claim’s “factual and legal
substance [was presented] to the state courts in a manner that
puts them on notice that a federal claim is being asserted”).
Even if this Court construes this as a federal claim, the
Court does not find that Petitioner’s Due Process rights have
been violated by the trial court’s failure to instruct the jury
regarding causation.
To prevail on a claim based on an
erroneous jury instruction “it must be established not merely
that the instruction is undesirable, erroneous, or even
universally condemned, but that it violated some [constitutional
right].”
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal
citations and quotations omitted).
The effect of an allegedly
erroneous jury instruction on a conviction “must be viewed in
the context of the overall charge.”
Cupp v. Naughten, 414 U.S.
141, 147 (1973) (citing Boyd v. United States, 271 U.S. 104, 107
53
(1926)).
The standard for relief based on a due process
violation is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process.”
Cupp, 414 U.S. at 148.
A state trial court’s
refusal to give a requested jury instruction does not, by
itself, create a federal habeas corpus claim; a habeas
petitioner must establish that the instructional error “had
substantial and injurious effect or influence in determining the
jury’s verdict.”
Brecht, 507 U.S. at 637.
resulted in “actual prejudice.”
The error must have
Id. at 637.
The Court finds no prejudice in the jury instruction.
First, during the jury charge conference, the judge asked
defense counsel and the State if they had any objection to the
murder jury charge and both agreed that it was appropriate.
No. 5-69 at 119–24.
ECF
Further, during the jury instruction
itself, the judge explained that to find defendant guilty of
murder, the State must prove each of three elements beyond a
reasonable doubt, the first being: “[t]hat the defendant caused
Alla Barney’s death or serious bodily injury that then resulted
in her death.”
ECF No. 5-69 at 195 (emphasis added).
Similar
instructions were given on the lesser included offenses of
aggravated and reckless manslaughter.
ECF No. 5-70 at 3–7.
Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“[a] jury is
54
See
presumed to follow its instructions”).
The judge did instruct
the jury that they could only find Petitioner guilty if they
found he caused the victim’s death beyond a reasonable doubt;
while it may have been helpful to further instruct the jury
regarding causation, the Court does not find that the failure to
do so had a substantial or injurious effect on the outcome of
the case.
Therefore, Petitioner has failed to show that he is
entitled to relief on this claim.
F. Ground Five: Jury Instruction on Inference
Petitioner next argues that the trial court erred in
instructing the jury that “[t]he use of a deadly weapon such as
a knife in and of itself would permit you [the jury] to draw an
inference that the defendant’s purpose was to take life or cause
serious bodily injury resulting in death.” ECF No. 1 at 20.
He
explains that such an inference prevented the jury from
considering defendant’s alternative theory of the killing.
Id.
Like the previous claim, Petitioner raised this claim in a
supplemental pro se brief on direct appeal, ECF No. 5-14, and
the Appellate Division affirmed on this ground without
elaboration.
ECF No. 5-16 at 10.
The alleged ailing instruction, in context, is as
follows:
The use of a deadly weapon such as a knife
55
in and of itself would permit you to draw
an inference that the defendant’s purpose
was to take life or cause serious bodily
injury resulting in death. A deadly weapon
is a weapon, device, instrument, which in
the manner it is used or is intended to be
used is known to be capable of producing
death or serious bodily injury.
In your deliberations, members of the jury,
you may consider the weapon used and the
manner and circumstances of the killing.
And if you are satisfied beyond a reasonable
doubt that the defendant stabbed and killed
Alla Barney with a knife, you may draw an
inference from the weapon used, that is, the
knife, and from the manner and circumstances
of the killing as to his purpose or
knowledge.
. . .
I am now going to advise you about selfdefense.
The Indictment charges that the
defendant has committed the crime of murder.
The defendant contends that if the State
proves he used or threatened to use force
upon Alla Barney, that such force was
justifiably used for his self-protection.
. . .
ECF No. 15-69 at 197–98; ECF No. 5-70 at 8.
As explained earlier, a jury instruction must be viewed
in context of the overall charge.
Cupp, 414 U.S. at 147.
As
evidenced by the excerpt above, the trial judge explained that
the inference could only be drawn if the jury was satisfied
beyond a reasonable doubt that the defendant was the one who
stabbed the victim.
Understanding this in reverse, if the jury
56
was convinced by Petitioner’s version of the story, that Alla
fell on the knife accidentally, then the inference could not be
drawn.
In that way, the Court does not find the alleged ailing
instruction resulted in actual prejudice, because it was not
required for the jury to draw the inference and did not preclude
the jury from accepting Petitioner’s version of the facts.
In
addition, the judge instructed the jury on self-defense,
passion/provocation manslaughter and other lesser included
offenses, leaving the jury free to consider alternative versions
of the factual scenario.
at 1–13.
ECF No. 5-69 at 199–200; ECF No. 5-70
Because the alleged violation does not violate clearly
established federal law, this claim for habeas relief is denied.
G. Ground Six: Evidence of Final Restraining Order
In Ground Six, Petitioner argues that the trial court erred
in permitting the State to introduce evidence of a final
restraining order against Petitioner, because it prejudiced the
jury against him.
ECF No. 1 at 22.
The New Jersey Appellate Division, on direct appeal,
reviewed this claim and affirmed without comment.
See ECF No.
5-16 at 10.
The record reflects that the trial judge heard from the
State and defense counsel with respect to introducing evidence
of the final restraining order, and the court found it met the
57
requirements under State v. Cofield, 605 A.2d 230 (1992) and
State v. Long, 801 N.J. 221 (2002), to be admitted as evidence
under the requirements of Cofield and as res gestae evidence
under Long.
ECF No. 5-60 at 15–17.
The trial court further
explained:
Without the State’s ability to introduce the
events that occurred on September 29, 2003 to
the jury, the jury would be left with an
incomplete picture of the events leading to
the victim’s death. The State would be unable
to explain the motive underlying this alleged
act.
The State would be hamstrung in its
efforts to establish intent. The jury would
be left with an incomplete and inaccurate
version of the events that the defendant went
to the daycare center to otherwise meet with
his
wife
and
an
argument
ensued
that
ultimately led to her demise.
That would
provide the jury with an inaccurate picture of
the events as they unfolded on September 29,
2003.
. . .
[T]he murder of the victim here cannot be
tried
without
evidence
of
the
final
restraining order.
Without admitting this
order at the trial of this case, the State
cannot assert its theory that the issuance of
the order provided the defendant with a motive
to kill the victim.
ECF No. 5-60 at 21.
This claim fails to demonstrate a constitutional violation
of fundamental unfairness at trial.
An erroneous evidentiary
ruling is not itself grounds for habeas relief.
58
To rise to the
level of a constitutional violation, a state court’s evidentiary
decision must have been so arbitrary or prejudicial that it
rendered the trial fundamentally unfair, thereby violating a
petitioner’s Due Process rights.
See Romano v. Oklahoma, 512
U.S. 1, 12–13 (1994); see also Keller v. Larkins, 251 F.3d 408,
413 (3d Cir. 2001) (evidentiary error rises to the level of a
Due Process violation only when “it was of such magnitude as to
undermine the fundamental fairness of the entire trial”).
The
United States Supreme Court has “defined the category of
infractions that violate fundamental fairness very narrowly.”
Dowling v. United States, 493 U.S. 342, 352 (1990) (internal
quotations omitted).
As evidenced by the excerpt above, the decision by the
trial judge to permit evidence of the final custody order was
not arbitrary or fundamentally unfair; it was necessary to
provide the jury with an accurate picture of the events leading
up to the Alla’s death.
Furthermore, the trial judge found,
under New Jersey state law, that the evidence could be admitted
and it is not the job of a federal court to disturb state court
rulings on issues of state law.
See Estelle, 502 U.S. at 67-68
(explaining that “it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
59
questions”).
Because Petitioner has failed to show that he is
entitled to relief, this claim for habeas relief is denied.
H. Ground Seven: Ineffective Assistance of Counsel
In Petitioner’s final ground for habeas relief, he argues
his trial, appellate, and PCR counsels were ineffective for the
reasons stated in Grounds One through Six.
ECF No. 1 at 24.
Because the underlying claims have already been addressed on the
merits, counsel cannot be ineffective for failing to raise
meritless claims.
See, e.g., United States v. Mannino, 212 F.3d
835, 840 (3d Cir. 2000) (explaining, that if an underlying claim
“is not meritorious . . . defendants can not successfully argue
that counsel’s failure to raise the claim on direct appeal
denied them their constitutional right of representation”);
Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013) (“a
petitioner cannot show that appellate counsel was ineffective
for failing to raise a claim on appeal if the underlying claim
itself lacks merit”); see also Moore v. United States, 934 F.
Supp. 724, 731 (E.D. Va. 1996) (“Failure to raise a meritless
argument can never amount to ineffective assistance”).
Because
a claim of ineffective assistance of counsel should not be used
as an end run to present an otherwise meritless claim on a
habeas petition, this Court will deny these claims for habeas
relief.
60
IV.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), a petitioner may not appeal from
a final order in a habeas proceeding where that petitioner’s
detention arises out of his state court conviction unless he 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); see also Slack v. McDaniel, 529 U.S. 473,
484 (2000).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right as to Grounds Two through Six, above.
Therefore, because
jurists of reason could not disagree with this Court’s
resolution of those claims, the Court shall deny Petitioner a
certificate of appealability on Grounds Two through Six.
The
Court will, however, grant a certificate of appealability on
Ground One, on the issue of whether the state court unreasonably
determined that Petitioner did not clearly and unequivocally
assert his right to proceed pro se, because reasonable jurists
could disagree as to the Court’s resolution.
61
The Court will, in
addition, grant a certificate of appealability on Ground Seven,
only on the issue of ineffective assistance of counsel as it
relates to Ground One, and will otherwise deny a certificate of
appealability as to Ground Seven.
V.
CONCLUSION
For the reasons stated above, the Petition for habeas
relief is DENIED and Petitioner is GRANTED a limited certificate
of appealability as set forth above.
An appropriate order
follows.
Dated: May 1, 2018
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
62
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?