BRITTON v. LANIGAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LONNIE BRITTON, HONORABLE NOEL L. HILLMAN

Petitioner,

Civil Action

v. No. 17-3701 (NLH)

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. (ECF No. 1 at 25; ECF No. 13-10; ECF No.

19 at 1.) 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.)

charges against him (see ECF No. 13-2), Petitioner filed a

motion on or about November 24, 2014 to proceed pro se. (ECF

No. 13-3 at 1-2 (“Self-Representation Motion”).) 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.” (ECF No. 13-4 at

17.) (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. Tompkins2, UCC Financing

Statements, State v. Ragland3, 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.

On January 23, 2015, the Honorable Kyran Connor, J.S.C.

heard oral arguments on the Self-Representation Motion. (ECF

No. 13-4 at 3 and 17 (“Motion Hearing”).) 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.

(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,

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.” (Id.

at 14-15.) (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

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 ...

[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)).

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

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Petitioner has the burden of establishing

each of his claims. See Eley v. Erickson, 712 F.3d 837, 846 (3d

Cir. 2013). 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

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

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

evidence in the record. See Cullen v. Pinholster, 563 U.S. 170,

180-81 (2011).

In applying these standards, the relevant state court

decision that is appropriate for federal habeas corpus review is

the last reasoned state court decision. See Bond v. Beard, 539

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,

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.” Faretta, 422 U.S. at

835. 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

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.” Iowa v. Tovar, 541 U.S. 77, 88

(2004). 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

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”).

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] self-

declaration of other, imaginary

“citizenship” and accompanying self-

declaration 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

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. (ECF No. 13-4 at 11-14.) See

Reddish, 859 A.2d at 1197. Consistent with Crisafi and Faretta,

Judge Connor asked open-ended questions of Petitioner on these

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. A-

1406-15T2, 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 ...

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

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. See Alongi, 367 F.

App’x at 348. 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

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 Moorish-

American 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

at times outweighs the defendant's interest in acting as his own

lawyer’”) (internal citations omitted).

Although it did not expressly address the Self-

Representation 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

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. 28 U.S.C. §

2254(d)(1), (d)(2). 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. Matteo, 171 F.3d at 891.

IV. 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).

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

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. Tabron, 6

F.3d at 155-56. 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 s/ Noel L. Hillman

Date NOEL L. HILLMAN

U.S. District Judge

At Camden, New Jersey