BRITTON v. LANIGAN et al
Filing
25
OPINION. Signed by Judge Noel L. Hillman on 9/30/2019. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LONNIE BRITTON,
HONORABLE NOEL L. HILLMAN
Petitioner,
Civil Action
No. 17-3701 (NLH)
v.
GARY LANIGAN, et al.,
OPINION
Respondents.
HILLMAN, District Judge:
I.
INTRODUCTION
Before the Court is Petitioner Lonnie Britton’s
(“Petitioner”) amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
(ECF No. 8 (“Amended Petition”).)
Also before the Court is Petitioner’s motion for the assignment
of pro bono counsel.
(ECF No. 24.)
Petitioner is a state-sentenced inmate incarcerated at
Northern State Prison following his conviction for robbery and
terroristic threats.
19 at 1.)
(ECF No. 1 at 25; ECF No. 13-10; ECF No.
In an Opinion and Order entered on January 26, 2019,
this Court determined that the Amended Petition was a mixed
habeas petition because it presented both: (1) unexhausted
claims that Petitioner never fairly presented to the highest
state court; and (2) one claim that Petitioner exhausted in
state court.
(ECF No. 17 at 11-12; ECF No. 18.)
This Court
afforded Petitioner thirty days to either: (1) file a motion to
stay in order to allow him to exhaust the Unexhausted Claims; or
(2) submit a letter dismissing the Amended Petition’s
Unexhausted Claims.
(ECF No. 18 at 2-3.)
On March 20, 2019,
Petitioner filed a letter with this Court “dismiss[ing] all of
the Amended Petition’s Unexhausted Claims [in order to] proceed
... only on the Exhausted Claim[].”
(ECF No. 20 at 1.)
The Court has considered the Amended Petition (ECF No. 8),
the Respondents’ answer (ECF No. 13), and Petitioner’s reply.
(ECF No. 15.)
For the reasons set forth below, the Court will
deny the Amended Petition on the merits, will deny a certificate
of appealability, and will deny the motion for the assignment of
pro bono counsel.
II.
PROCEDURAL AND FACTUAL BACKGROUND
With respect to the exhausted claim of the Amended Petition
on which Petitioner now seeks to proceed (see ECF No. 20 at 1),
Ground Three alleges, among other things, a denial of his
constitutional right to self-representation. 1
During his state
court proceedings on the robbery and terroristic threat criminal
1
As defined in this Court’s February 26, 2019 Opinion, the
Amended Petition’s Unexhausted Claims were the following: (a)
Ground One’s Summary Order Claim, Removal Claim, Counsel
Withdrawal Claim, and Counsel Performance Claim4; (b) Ground
Two’s Aguilar-IAC Claim; and (c) Ground Three’s Faretta Claim,
Exercise of Jurisdiction Claim, and Warrant Claim. (ECF No. 17
at 12.) The Amended Petition’s Exhausted Claim is Ground
Three’s Self-Representation Claim. (Id. at 11.)
2
charges against him (see ECF No. 13-2), Petitioner filed a
motion on or about November 24, 2014 to proceed pro se.
No. 13-3 at 1-2 (“Self-Representation Motion”).)
(ECF
In support of
that Motion, Petitioner submitted over two hundred pages of
exhibits to the state court.
His submissions included Uniform
Commercial Code financing statements and the “Treaty of Peace
and Friendship between the United States and His Imperial
Majesty, the Emperor of Morocco, from 1787.”
17.)
(ECF No. 13-4 at
(See also ECF No. 13-5 at 2 and 5 (referring to Petitioner
“wear[ing] down [the court] with hundreds of pages of documents
and torrents of oral gibberish spoken in support of those
documents”).)
Petitioner’s pro se written submissions were
“speckled with references to the Administrative Procedure Act,
Article 3 of the Constitution, Erie v. Tompkins 2, UCC Financing
Statements, State v. Ragland 3, Bills of Attainder, Writs of
Replevin and some references to Stableman’s Liens.”
(ECF No.
13-5 at 4.)
2
In Erie v. Tompkins, 304 U.S. 64, 78 (1938), the United States
Supreme Court held that a federal court sitting in diversity
jurisdiction must apply the substantive law of the forum state.
3
In State v. Ragland, 519 A.2d 1361, 1365 (N.J. 1986), the New
Jersey Supreme Court held that a jury instruction -- stating
that if the jury found certain facts, the jury “must” find
defendant guilty -- does not improperly coerce jury
deliberations or interfere with jury independence.
3
On January 23, 2015, the Honorable Kyran Connor, J.S.C.
heard oral arguments on the Self-Representation Motion.
No. 13-4 at 3 and 17 (“Motion Hearing”).)
(ECF
At that Hearing,
Petitioner was represented by Assistant Deputy Public Defender,
Omar M. Aguilar, Esquire.
(Id. at 1.)
Mr. Aguilar summarized
Petitioner’s request made at a prior court appearance that he
wanted to represent himself.
Mr. Aguilar explained that counsel
had therefore filed the Self-Representation Motion.
(Id. at 3.)
Mr. Aguilar stated that Petitioner was prepared at the Motion
Hearing to answer the court’s questions about his intentions
regarding self-representation.
(Ibid.)
Judge Connor then asked the following of Petitioner:
THE COURT: Mr. Britton, did – is [it] still
your desire ... to represent yourself in
this case?
PETITIONER: Yes, to advocate for myself and
to exercise a Constitutional right to be
heard and spoke [sic].
THE COURT: Without counsel’s assistance.
PETITIONER: I never gave implied consent to
counsel assistance and before – by time or
before my appearance here the previous judge
is the one that gave the order for Mr.
Aguilar to speak on behalf of me, and
actually, I had filed motions from the
institution where I’m being held at in my
private capacity at which for some reason,
due to what goes on as far as getting mail
out and things sent to the courts, there was
a restriction or a clerical mistake because
nothing was heard.
4
(ECF No. 13-4 at 4-5.)
Petitioner stated that he had never
previously represented himself in any other case.
(Id. at 6.)
Petitioner consistently referred to himself in the third
person during the Motion Hearing.
He stated that he did so
because of the “role of dual capacity” of self-representation.
(Id. at 7) (“[T]hose [first degree robbery charges] are the
charges that the defendant, I was indicated for, the defendant
was indicted for, charges”).
The court questioned him about his
understanding of the charges against him and his sentence
exposure.
(Id. at 8-9.)
Petitioner stated that the maximum
sentence for the charged offenses would be twenty years and
that, pursuant to the No Early Release Act, he would not be
“capable of being released un[til] finish[ing] 85 percent of the
time.”
(Ibid.)
At the Motion Hearing, Judge Connor also asked Petitioner
whether he understood that, if he acted as his own attorney, he
was obligated to follow and comply with the New Jersey Rules of
Evidence.
(Id. at 10-11.)
Petitioner responded affirmatively,
but said that he was not familiar with the New Jersey Rules of
Criminal Procedure.
(Id. at 10-12.)
Judge Connor also asked
Petitioner if he understood that “there are restrictions on the
way that questions can be asked of witnesses on the witness
stand.”
(Id. at 13.)
Petitioner replied: “I’m aware of that,
5
but I’m also aware of State v. Ragland and the conscience – the
jury being a conscience of the community[.]”
(Ibid.)
Judge Connor asked Petitioner whether he understood that it
would “be to [his] advantage to have the help of an attorney in
defending against this case.”
(Id. at 14.)
Petitioner
responded that he was concerned about representation by an
attorney because he had experienced problems with counsel in the
past.
Specifically, Petitioner stated that he had “not be[en]
able to get through with attorneys and [had] issues with them
responding to letters or filing the right motions or having to
go through the stress of dealing with the circumstances.”
at 14-15.)
(Id.
(See also ECF No. 13-5 at 4 (Petitioner “spoke of
his concern for the multiplicity of motions that he has filed
already ... [It] [is] clear to [the court] that those
essentially nonsensical filings are what he sees as the real
issues that need to be addressed in this case”).)
At the conclusion of the Motion Hearing, Judge Connor
reserved decision until the next court session.
(Id. at 18.)
On February 13, 2015, Judge Connor gave the court’s decision on
the record. (ECF No. 13-5.)
Present were: counsel for the
State; Petitioner; and public defender Eric R. Shenkus, Esquire,
as counsel for Petitioner.
(Id. at 1-2.)
Judge Connor stated that, while Petitioner “did express an
awareness ... of an obligation to abide by the rules of evidence
6
and Rules of Criminal Procedure,” he “did not profess to be
familiar with any of their requirements.”
(Id. at 4.)
The
court also expressed reservation about the fact that
Petitioner’s self-titled “quiet title complaint” in his
underlying criminal case attached “an affidavit in which he
asserted that handing a note to a bank teller [during his
commission of the robbery] was a pure accident related to
gambling and to manic depression.”
(Ibid.)
That exhibit was
“effectively an admission with respect to the crime that he’s
charged with.”
(Ibid.)
Judge Connor stated that “for all of
[Petitioner’s] other expansive ventures into the corners of the
common law, [he] has little understanding or appreciation for
the Fifth Amendment and its importance to him.”
(Ibid.)
(See
also ECF No. 13-5 at 4 (referring to Petitioner’s “multiplicity
of ... essentially nonsensical filings”).
These circumstances
left Judge Connor “unable to find that [Petitioner’s] waiver of
counsel is knowing and voluntary.”
(Id. at 4-5.)
Judge Connor explained other circumstances informing the
court’s adjudication of the Self-Representation Motion, as
follows:
[Petitioner] self-identifies as a “Moor” ...
and certainly concedes of himself as a
sovereign citizen ... [A]ll sovereign
citizens assert they retain an individual
common law identity that they claim exempts
them from the authority of all government
institutions, including the judiciary ...
7
[S]overeign citizens reject the current
federal, state and local governments and
consider themselves outside their authority
... [Petitioner’s waiver of counsel] is
infected by the fact that as a sovereign
citizen he rejects current federal, state
and local governments and considers himself
outside their authority.
(Id. at 2-3.) 4
Denying the Self-Representation Motion, Judge Connor
further explained:
So, Mr. Britton may be aware, as he put it,
of the expectation that he will abide by the
Rules of Evidence, but that is something
quite different from under[standing] this
statement and undertaking to abide by them
in the crucible of a trial being conducted
in a forum whose very legitimacy Mr.
Britton[,] by virtue of his Moorish
proclamations[,] rejects.
Mr. Britton may know what the robbery
statute says and he may know what the
maximum penalty is, but that’s a far cry
from actually embracing that these are real
laws in a real universe in which laws will
4
Cf., Metaphyzic El-Electromagnetic Supreme-El v. Dir. of Dep’t
of Corr., No. 3:14CV52, 2015 WL 1138246, at *12 (E.D. Va. Mar.
3, 2015) (noting, where petitioner contended that Virginia
courts lacked jurisdiction to prosecute him because of his
status as a Moorish-American, that “it is well-recognized that
... the Moorish American Nation ... [is a] notorious
organization[] of scofflaws and ne‘er-do-wells who attempt to
benefit from the protections of federal and state law while
simultaneously proclaiming their independence from and total
lack of responsibility under those same laws’”) (internal
citations omitted); Abdullah v. New Jersey, No. 12-4202, 2012 WL
2916738, at *1 (D.N.J. July 16, 2012) (summarizing the beliefs
underpinning the ethnic/religious movement of Moorish-Americans
and of sovereign citizens/Redemptionists) (citing Murakush
Caliphate of Amexem, Inc. v. New Jersey, 790 F. Supp.2d 241, 245
(D.N.J. 2011)).
8
not shrink before any good talk of the UCC
or Bills of Attainder and Writs of Replevin.
Therefore, I find that Mr. Britton doesn’t
understand the nature and consequences of
waiving counsel. I conclude that he is
blinded to the consequences because he
thinks that a repetition of Moorish buzz
words will somehow immunize him from the
predictable bad outcomes that are otherwise
likely to be[fall] [him].
(ECF No. 13-5 at 5.)
Judge Connor allowed Petitioner an
opportunity to speak on matters as to which he wished to be
heard.
Petitioner spoke about, inter alia: “a writ of
attachment,” a “writ capias ad respondendum,” his status as “a
holder in due course”, “House Jury Resolution 192,” “negotiable
instruments,” and Erie v. Tompkins.
(Id. at 5-7; ECF No. 13-6.)
Judge Connor determined that Mr. Aguilar would remain as
Petitioner’s counsel.
(Ibid.)
State court post-trial proceedings ultimately concluded
when the New Jersey Supreme Court denied certification on May 5,
2017.
(ECF No. 13-15.)
Following Petitioner’s various
procedural errors in the early stages of this federal habeas
matter (see ECF No. 17 at 2-3), Petitioner filed his Amended
Petition on October 16, 2017.
(ECF No. 8.)
III. DISCUSSION
A.
Standard Of Review
28 U.S.C. § 2254 permits a court to entertain only claims
alleging that a person is in state custody “in violation of the
9
Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
Petitioner has the burden of establishing
each of his claims.
Cir. 2013).
28
See Eley v. Erickson, 712 F.3d 837, 846 (3d
Under 28 U.S.C. § 2254, as amended by 28 U.S.C. §
2244, federal courts in habeas corpus cases must give
considerable deference to determinations of the state trial and
appellate courts.
See Renico v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) provides as follows:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits in
State court proceedings unless the
adjudication of the claim -(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.
Where a state court adjudicated petitioner’s federal claim
on the merits, a federal court “has no authority to issue the
writ of habeas corpus unless the [state c]ourt’s decision ‘was
contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of
the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in
10
the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37,
40 (2012) (quoting 28 U.S.C. § 2254(d)).
The United States
Supreme Court has emphasized that the question “is not whether a
federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable-a
substantially higher threshold.”
Schriro v. Landrigan, 550 U.S.
465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)).
Habeas petitioners carry the burden of proof, and
review under § 2254(d) is limited to the record that was before
the state court that adjudicated the claim on the merits.
See
Harrington v. Richter, 562 U.S. 86, 98, 100 (2011).
“[C]learly established law for purposes of § 2254(d)(1)
includes only the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions,” as of the time of the relevant
state-court decision.
White v. Woodall, 134 S. Ct. 1697, 1702
(2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is “contrary to” a Supreme Court holding within §
2254(d)(1) if the state court “contradicts the governing law set
forth in [the Supreme Court’s] cases” or if it “confronts a set
of facts that are materially indistinguishable from a decision
of th[e Supreme] Court and nevertheless arrives at a [different]
result.”
Williams, 529 U.S. at 405–06.
Under the
“‘unreasonable application’ clause of § 2254(d)(1), a federal
habeas court may grant the writ if the state court identifies
11
the correct governing legal principle from th[e Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.”
Id. at 413.
With regard to §
2254(d)(1), a federal court must confine its examination to
See Cullen v. Pinholster, 563 U.S. 170,
evidence in the record.
180-81 (2011).
In applying these standards, the relevant state court
decision that is appropriate for federal habeas corpus review is
See Bond v. Beard, 539
the last reasoned state court decision.
F.3d 256, 289–90 (3d Cir. 2008).
B.
Governing Law
In Faretta v. California, 422 U.S. 806 (1975), the Supreme
Court held that the Sixth Amendment right to counsel includes
the right to proceed without counsel.
Although “courts [must]
indulge every reasonable presumption” against a waiver of
counsel, Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal
citations and quotation marks omitted), once a defendant
“clearly and unequivocally” declares her or his desire to
proceed pro se, the trial court’s role is quite limited.
Faretta, 422 U.S. at 835.
See also Buhl v. Cooksey, 233 F.3d
783, 789 (3d Cir. 2000) (courts must indulge every presumption
against a defendant’s waiver of counsel) (citations omitted).
Specifically, the court must confirm that the accused “knowingly
and intelligently” forgoes the substantial benefits of counsel,
12
and it must make the defendant “aware of the dangers and
disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made
with eyes open.” Faretta, 422 U.S. at 835 (internal citations
and quotation marks omitted).
“Once it is clear that the
defendant’s eyes are open, the court must permit the defendant
to represent her/himself, and any additional inquiry into the
defendant’s fitness to do so is as irrelevant as it is
improper.”
Alongi v. Ricci, 367 F. App’x 341, 344 (3d Cir.
2010).
Criminal defendants managing their own defense “relinquish,
as a purely factual matter, many of the traditional benefits
associated with the right to counsel.”
835.
Faretta, 422 U.S. at
Therefore, the right to proceed pro se may only be
exercised if the defendant first knowingly and intelligently
waives his or her right to counsel.
McKaskle, 465 U.S. at 173.
Under these well-established principles, “the constitutional
right of self-representation in a criminal case is conditioned
upon a voluntary, knowing and intelligent waiver of the right to
be represented by counsel.”
Buhl, 233 F.3d at 789 (3d Cir.
2000) (citing Faretta, 422 U.S. at 835, and Edwards v. Arizona,
451 U.S. 477, 482 (1981)).
Whether a defendant has effectively exercised a knowing and
voluntary relinquishment of his Sixth Amendment rights “depends
13
in each case upon the particular facts and circumstances
surrounding that case.”
Edwards, 451 U.S. at 482.
“The
information a defendant must possess in order to make an
intelligent election ... will depend on a range of case-specific
factors, including the defendant’s education or sophistication,
the complex or easily grasped nature of the charge, and the
stage of the proceeding.”
(2004).
Iowa v. Tovar, 541 U.S. 77, 88
See also Edwards, 451 U.S. at 482 (whether a waiver was
knowing, intelligent, and voluntary “depends in each case upon
the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused”).
To these ends, courts should advise criminal defendants in
unequivocal terms of both the technical problems they may
encounter in acting as their own attorney and of the risks they
take in doing so.
See Alongi, 367 F. App’x at 348; United
States v. Stubbs, 281 F.3d 109, 118 (3d Cir. 2002) (citing
United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982).
See
also Government of the Virgin Islands v. James, 934 F.2d 468,
473 (3d Cir. 1991) (“the trial court should, for example, tell
the defendant that he will have to conduct his defense in
accordance with the Federal Rules of Evidence and Criminal
Procedure; that the defendant may be hampered in presenting his
best defense by his lack of knowledge of the law; and that the
14
defendant’s effectiveness in presenting his defense may be
diminished by his dual role as attorney and accused”) (citing
McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir. 1987).
New Jersey law is consistent with these federal principles.
See, e.g., State v. Crisafi, 608 A.2d 317, 323 (N.J. 1992)
(“Defendants possess not only the right to counsel, but the
right to dispense with counsel and to proceed pro se ... A
defendant can exercise the right to self-representation only by
first knowingly and intelligently waiving the right to counsel”)
(citing Faretta and McKaskle); and State v. Reddish, 859 A.2d
1173, 188-89 (N.J. 2004) (discussing and applying the federal
standards enunciated in Faretta).
However, “the right to self-representation is not
absolute.”
Indiana v. Edwards, 554 U.S. 164, 171 (2008).
“Even
at the trial level ... the government’s interest in ensuring the
integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.”
Id. at 177
(quoting Martinez v. Court of Appeal of Cal., Fourth Appellate
Dist., 528 U.S. 152, 162 (2000)).
See also McKaskle v. Wiggins,
465 U.S. 168, 173 (1984) (while the Sixth Amendment gives a
criminal defendant the right to represent himself at trial, it
does so only to the extent that he is “able and willing to abide
by rules of procedure and courtroom protocol”).
15
C.
The Self-Representation Claim Fails On The Merits
At the outset, this Court observes “[t]wo concepts [that]
color the issues at hand”:
One of these concepts underlies [the]
ethnic/religious identification movement
[of] individuals who refer to themselves as
“Moors[.] [T]he other concept [is the]
movement [by those who] denounce[] United
States citizenship [in favor of] selfdeclaration of other, imaginary
“citizenship” and accompanying selfdeclaration of equally imaginary “diplomatic
immunity” ...
[U]nfortunately enough, certain groups of
individuals began merging these concepts by
building on their alleged ancestry in
ancient Moors ... for the purposes of
committing criminal offenses and/or
initiating frivolous legal actions on their
self-granted “diplomatic immunity,” which
these individuals deduce either from their
self-granted “Moorish citizenship” and from
their correspondingly-produced homemade
“Moorish” documents ... or from a multitude
of other, equally non-cognizable under the
law, bases, which these individuals keep
creating in order to support their
allegations of “diplomatic immunity.”
See Abdullah v. New Jersey, No. 12-4202, 2012 WL 2916738, at *1
(D.N.J. July 16, 2012) (citing Murakush Caliphate of Amexem,
Inc. v. New Jersey, 790 F. Supp.2d 241, 245 (D.N.J. 2011)).
Turning to the particular facts of this case, and for the
reasons explained below, this Court finds that the state court’s
decision on the Self-Representation Motion was not “contrary to
or an unreasonable application of clearly established federal
16
law” (28 U.S.C. § 2254(d)(1)), and was not based on an
“unreasonable determination of the facts” in light of the
evidence before the state court.
28 U.S.C. § 2254(d)(2).
Judge Connor’s colloquy at the Motion Hearing was
consistent with the Faretta federal standard and with related
state law. See Crisafi, 608 A.2d at 323, and Reddish, 859 A.2d
at 188-89.
The court asked Petitioner a series of questions to
determine whether his Sixth Amendment counsel waiver was
knowing, intelligent, and voluntary.
See Johnson, 304 U.S. at
464 (directing courts to consider a defendant’s “background,
experience, and conduct” in their colloquies); Alongi, 367 F.
App’x at 348 (“Inquiry into these factors [is] directed towards
determining whether the defendant’s waiver is knowing and
voluntary”).
For example, Judge Connor asked Petitioner whether he
understood what the criminal charges were against him and the
range of possible sentences.
(ECF No. 13-4 at 8.)
See Welty,
674 F.2d at 188 (citing Von Moltke v. Gillies, 332 U.S. 708, 724
(1948)); Crisafi, 608 A.2d at 323 (citations omitted).
Judge
Connor also advised Petitioner of the difficulties he would
encounter if he represented himself and of the risks of
proceeding without counsel.
Reddish, 859 A.2d at 1197.
(ECF No. 13-4 at 11-14.)
See
Consistent with Crisafi and Faretta,
Judge Connor asked open-ended questions of Petitioner on these
17
issues.
(ECF No. 13-4 at 4-7 (e.g., “[I]s that still your
desire [to represent yourself]?”; “How far did you go in
school?”; “What kind of work have you done over your life?”;
“Have you ever represented yourself before in a criminal
trial?”; “Do you know what you’re charged with here?”).)
See
New Jersey Div. of Child Prot. and Permanency v. Q.W., No. A1406-15T2, 2018 WL 359785, at *8 (N.J. Super. Ct. App. Div. Jan.
11, 2018) (“In Reddish ... our Supreme Court took the
‘opportunity to amplify our directive in Crisafi’ by requiring
criminal courts to ‘ask appropriate open-ended questions that
will require defendant to describe in his own words his
understanding of the challenges that he will face when he
represents himself at trial’”) (internal citations omitted).
Petitioner was unable to demonstrate a rational
understanding, in his own words, of: the nature of his criminal
proceeding; what self-representation would require of him; the
applicable rules of criminal procedure that he would need to
follow; or even his amenability to prosecution under state
criminal laws. (See, e.g., ECF No. 13-4 at 9 (“If I may be heard
continuously, now in this administrative hearing, in accordance
to the administrative procedural right, statutory crime is
rebuttable and as it means to certain right, I rebut the
presumption that I am the person that’s being addressed in any
of the legal paperwork and I assert the right to be heard ...
18
Now I submitted the UCC finances statement only as an exhibit
because I understand that this – that finances statement is just
a notification ... So if we are to look at the Supreme Court
adopted rules that govern the Superior Courts in pleadings, I
would assert 5 -– Rule 4:5-4, subsection 2.1, which is a court
in satisfaction as affirmative defense to the actual statutory
crime”).)
On the record before the state court, Petitioner did
not appear to even superficially understand the legal process or
basic law as it applied to the serious criminal charges against
him.
(Ibid.)
The trial court’s denial of the Self-Representation Motion
was not contrary to, or an unreasonable application of, federal
law as established in opinions of the United States Supreme
Court.
Petitioner’s statements at the Motion Hearing were the
polar opposite of an intelligent waiver of his Sixth Amendment
rights.
It was objectively reasonable for Judge Connor to
conclude that Petitioner had failed to intelligently waive
counsel.
On the record before the state court, Petitioner: (1)
had no experience representing himself (ECF No. 13-4 at 6); (2)
made only vague, rambling, irrelevant, and unintelligible
statements in response to the court’s questions (e.g., ECF No.
13-4 at 9-10 (“I would like to bring into the record the
precedent case which is Erie v. Tompkins ... The reason why I
cite that case is become in the statute, under the savings to
19
suitors clause, all otherwise entitled remedies are available”);
(3) had professed unfamiliarity with the Rules of Criminal
Procedure (id. at 12); and (4) demonstrated an inability and/or
refusal to responsively answer questions directed to him (e.g.,
ECF No. 13-4 at 13 (referring to “the jury being a conscience of
the community” when asked whether he understood the rules for
questioning witnesses at trial).
Judge Connor’s denial of the Self-Representation Motion was
also consistent with the presumption against waiver of counsel.
See Johnson, 304 U.S. at 464.
The state court’s decision was not based on Petitioner’s
lack of technical knowledge of the law.
App’x at 348.
See Alongi, 367 F.
Rather, Judge Connor’s ruling was properly based
on the totality of the circumstances regarding Petitioner’s
conduct, confusion, and utter lack of rational comprehension
during the proceedings.
All of these demonstrated his inability
to make an intelligent waiver.
Furthermore, since Petitioner demonstrated a remarkable
intent to “wear down [the court] with hundreds of pages of
documents and torrents of oral gibberish spoken in support of
those documents” (ECF No. 13-5 at 5), he jeopardized the
integrity of the criminal proceedings. See Martinez, 528 U.S. at
162 (holding that the right to self-representation must, at
times, yield to “the government’s interest in ensuring the
20
integrity and efficiency of the trial ...”).
Accord Metaphyzic
El-Electromagnetic Supreme-El v. Director of Dep’t of Corr., No.
3:14CV52, 2015 WL 1138246, at *12 (E.D. Va. Mar. 3, 2015)
(petitioner, a Moorish—American, contended that, inter alia,
“the ‘UCC’ form he signed ‘reserved his right to not be liable
for anything unknown in signing thereof,” and he “refused to
comply with the Court’s directives or appropriately answer the
Court’s questions. [His] obstreperous attempts to pursue the
frivolous defense that the Circuit Court lacked jurisdiction to
try or convict him, rendered him unable to adequately represent
himself or present the best possible defense ... Additionally,
[petitioner’s] ‘assertion of his right to proceed without
counsel ... suggest[s] more a manipulation of the system than an
unequivocal desire to invoke his right of self-representation.’
In light of [petitioner’s] conduct prior to trial, the Circuit
Court appropriately refused to allow him to proceed pro se”)
(internal citations omitted).
See also United States v. Frazer-
El, 204 F.3d 553, 559-60 (4th Cir. 2000) (finding no
constitutional violation of self-representation when MoorishAmerican defendant insisted upon making “meritless and
irrelevant” arguments that “he was not subject to the
jurisdiction of a ... court ... At bottom, the Faretta right to
self-representation is not absolute, and ‘the government's
interest in ensuring the integrity and efficiency of the trial
21
at times outweighs the defendant's interest in acting as his own
lawyer’”) (internal citations omitted).
Although it did not expressly address the SelfRepresentation Motion, the Appellate Division reasonably could
have determined that, in light of the record before it, Judge
Connor’s rejection of that Motion was proper; and therefore, to
the extent Petitioner’s appeal challenged Judge Connor’s ruling
on that Motion, his appeal did not warrant a written opinion.
(See ECF No. 13-15 (“the issues on appeal relate solely to the
sentence imposed[,] [and] [Petitioner’s] sentence is not
manifestly excessive or unduly punitive”).)
In sum, the trial judge engaged Petitioner in a thoroughly
open-ended exchange and reached the correct conclusion for the
correct reasons.
Judge Connor’s colloquy concentrated on
Petitioner’s unintelligible pre-trial conduct that strongly
suggested his inability to make a knowing and intelligent
waiver.
Petitioner’s rambling, disjointed, irrelevant, and
confusing statements at the Motion Hearing established his
limited ability or willingness to comprehend the legal process,
the attendant risks of self-representation, and even his
amenability to criminal prosecution in state court.
His conduct
reasonably could have raised doubts about his ability to
adequately represent himself.
It also raised a risk of
22
compromising “the integrity and efficiency of the trial.”
Edwards, 554 U.S. at 177.
The state court decision was, therefore, not contrary to or
an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts
in light of the evidence before the state court.
2254(d)(1), (d)(2).
28 U.S.C. §
Petitioner has not demonstrated that the
state court decision, when evaluated objectively and on the
merits, resulted in an outcome that cannot be reasonably
justified.
IV.
Matteo, 171 F.3d at 891.
MOTION FOR ASSIGNMENT OF PRO BONO COUNSEL
Petitioner has requested appointment of pro bono counsel
because he cannot afford counsel and he feels incapable of
pursuing his claims in the Amended Petition.
(See ECF No. 24 at
1.)
A court must appoint counsel if an evidentiary hearing is
necessary in a § 2254 proceeding.
See Rule 8(c), Rules
Governing Section 2254 Cases in the United States District
Courts.
The merits-based and purely legal issue before this
Court does not require an evidentiary hearing.
Rather, whether
or not the Self-Representation Claim warrants habeas relief can
be determined on the record before this Court.
Therefore, the
Court considers Plaintiff’s request for appointment of pro bono
counsel (ECF No. 24) under 28 U.S.C. § 1915(e)(1).
23
While there is no right to counsel in a civil case, see
Tabron v. Grace, 6 F.3d 147, 153-54 (3d Cir. 1993); Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), pursuant to §
1915(e)(1) “[t]he court may request an attorney to represent any
person unable to afford counsel.”
28 U.S.C. § 1915(e)(1).
In
deciding whether counsel should be appointed, a court first
considers whether a claim or defense has “arguable merit in fact
and law.”
Tabron, 6 F.3d at 155.
If it does, a court then
considers additional factors, which include: (1) the applicant’s
ability to present his or her case; (2) the complexity of the
legal issues presented; (3) the degree to which factual
investigation is required and the ability of the applicant to
pursue such investigation; (4) whether credibility
determinations will play a significant role in the resolution of
the applicant’s claims; (5) whether the case will require
testimony from expert witnesses; and (6) whether the applicant
can afford counsel on his or her own behalf.
Tabron, 6 F.3d at
155-157.
Under these governing principles, a court -- in determining
whether to appoint pro bono counsel under § 1915(e)(1) -- must
first make a threshold determination of whether a petitioner’s
case has “some merit in fact and law.”
Tabron, 6 F.3d at 155.
In this case, there is nothing in the record to suggest
that Petitioner has a meritorious claim in Ground Three’s
24
exhausted claim.
As explained at length supra, the Self-
Representation Claim fails on the merits.
Therefore, Petitioner
has not satisfied Tabron’s threshold showing, and the Court need
not proceed to weigh Tabron’s additional factors.
F.3d at 155-56.
Tabron, 6
The Court will deny Petitioner’s motion for
appointment of counsel.
V.
CERTIFICATE OF APPEALABILITY
The Anti-Terrorism and Effective Death Penalty Act provides
that an appeal may not be taken to the court of appeals from a
final order in a § 2254 proceeding unless a judge issues a
certificate of appealability on the ground that “the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
This Court will deny a
certificate of appealability because jurists of reason would not
debate the Court’s ruling.
VI.
CONCLUSION
For the reasons set forth above, the Court will deny the
Amended Petition with prejudice, will deny a certificate of
appealability, and will deny the motion for appointment of
counsel.
An appropriate order follows.
September 30, 2019
Date
s/ Noel L. Hillman
NOEL L. HILLMAN
U.S. District Judge
At Camden, New Jersey
25
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