United States District Court, D. New Jersey
LESTER S. BARNEY, Petitioner,
STEVEN E. D'ILLIO, et al., Respondents.
L. HILLMAN UNITED STATES DISTRICT JUDGE
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.
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
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
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
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
Q. Did he say what happened when he went to the daycare
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.
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
Based on this evidence, the jury found defendant guilty of
murder and interference with custody.
ECF No. 5-16 at 2-8.
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
ECF No. 1 at 12-24.
filed an answer to the habeas petition arguing that
Petitioner's claims are meritless. ECF No. 5.
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).
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;
(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).
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).
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).
Ground One: Proceeding Pro Se
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
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
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
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.
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,
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.
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
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
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 ...