United States District Court, D. New Jersey
L. HILLMAN U.S. DISTRICT JUDGE.
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.)
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.)
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.
PROCEDURAL AND FACTUAL BACKGROUND
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. 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, UCC Financing Statements, State v.
Ragland, Bills of Attainder, Writs of Replevin and
some references to Stableman's Liens.” (ECF No.
13-5 at 4.)
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.)
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.)
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.”
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.)
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
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
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
Connor explained other circumstances informing the
court's adjudication of the Self-Representation Motion,
[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.)
the Self-Representation Motion, Judge Connor ...