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Barney v. D'Illio

United States District Court, D. New Jersey

May 1, 2018

LESTER S. BARNEY, Petitioner,
STEVEN E. D'ILLIO, et al., Respondents.



         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.
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 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:
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 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.
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. 5-16, 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. The PCR court held an evidentiary hearing on August 22, 2013. ECF No. 5-75. 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. ECF No. 5-58. 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 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. ECF No. 5.


         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, 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.” 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 evidence.” 28 U.S.C. § 2254(e)(1).


         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. ECF No. 5-49 at 20-30, 46. 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. The New Jersey Supreme Court denied certification. ECF No. 5-58. In Ground Seven of the instant petition, Petitioner argues that his trial, appellate and PCR counsels were ineffective for all the reasons stated in Grounds One through Six. ECF No. 1 at 24. 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.” ECF No. 5-55 at 3 (capitalized in original.) 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 self-representation, 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 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 pro-se. 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 excuse or even offered a valid basis to disrupt his trial which was already in progress.
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.
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. Id. at 12, 19. In the appendix in support of Petitioner's pro se supplemental brief to the Appellate Division in appealing the 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 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 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 86');">126 N.J. 486 and requests an order that the public defender's office ...

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