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Britton v. Lanigan

United States District Court, D. New Jersey

September 30, 2019

GARY LANIGAN, et al., Respondents.




         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.


         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 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. 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.)

         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 ...

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