BRIAN R. MARTINOTTI, District Judge.
Before this Court is a writ of habeas corpus filed by Petitioner Michael R. Gore, Jr., ("Petitioner"), a state prisoner proceeding pro se with a petition filed pursuant to 28 U.S.C. § 2254 (the "Petition"). (See ECF No. 1.) Respondents Steven Johnson and the Attorney General for the State of New Jersey ("Respondents") filed an Answer to the Petition (the "Answer"). (See ECF No. 12.) Having reviewed the submissions filed in connection with the petition and for the reasons set forth below, the Petition will be
On direct appeal, the New Jersey Supreme Court recounted the following salient factual background of Petitioner's case:
State v. Gore, 15 A.3d 844, 846-50 (N.J. 2011) (footnotes omitted).
Petitioner appealed his conviction and sentence. See State v. Gore, Indictment No. 01-091181, 2009 WL 3460261 (N.J. Super. Ct. App. Div. Oct. 26, 2009). The Appellate Division reversed Petitioner's conviction based upon the trial court's admission into evidence of a document that memorialized Petitioner's transcribed, but unacknowledged, formal confession. See id. at *5. The State subsequently petitioned the New Jersey Supreme Court for certification, which the court granted. See Gore, 15 A.3d at 846. The Supreme Court reversed the Appellate Division's decision, reinstated Petitioner's conviction, and remanded the matter to the Appellate Division for consideration of sentencing issues. See id. at 857. Petitioner was resentenced on October 12, 2012 to life in prison with a thirty-year period of parole ineligibility for his murder conviction, and a consecutive eighteen years in prison with a nine-year period of parole ineligibility. (See ECF No. 12-2 at 3.)
On June 28, 2010, Petitioner filed an application for Post-Conviction Relief ("PCR"). (See ECF No. 12-2 at 167-68.) Following oral argument, Petitioner's PCR was denied. (See id. at 196-217.) On appeal, the Appellate Division affirmed the PCR court's decision. See State v. Gore, No. A-4837-13T4, 2016 WL 3582169, at *8 (N.J. Super. Ct. App. Div. July 5, 2016). Petitioner's request for certification to the New Jersey Supreme Court was denied. See State v. Gore, 154 A.3d 701 (N.J. 2016).
In January 2017, Petitioner filed the instant habeas application. (See ECF No. 1.) His petition raises the singular claim that the trial court improperly denied his Sixth Amendment right to represent himself at trial. (See id. at 5.) On April 24, 2017, the State filed a motion to dismiss the Petition, arguing that (1) Petitioner failed to state a claim for relief because his Petition did not challenge the proper Judgement of Conviction, and (2) the Petition was time-barred. (See ECF No. 7-2 at 6-7.) On December 28, 2017, this Court denied the State's motion to dismiss and directed the State to file a full and complete answer. (See ECF Nos. 10 & 11.) On February 11, 2018, the State submitted their Answer. (See ECF No. 12.)
A petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the fact or duration of his confinement, where the petitioner claims his custody is in violation of the Constitution or the laws of the United States. See 28 U.S.C. § 2254(a); Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Preiser v. Rodriquez, 411 U.S. 475, 498-99 (1973). A habeas petitioner bears the burden of establishing his entitlement to relief for each claim presented in the petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011).
The standard used in reviewing habeas claims under § 2254 depends on whether those claims have been adjudicated on the merits by the state court. If they have not been adjudicated on the merits, the Court reviews de novo both legal questions and mixed factual and legal questions. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). If the state court adjudicated the claim on the merits, then 2254(d) limits the review of the state court's decision as follows:
28 U.S.C. § 2254(d). If a claim has been adjudicated on the merits in state court,
A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]ircuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA." Parker, 567 U.S. at 48-49 (quoting 28 U.S.C. § 2254(d)(1)). Thus, while decisions of lower federal courts "may be helpful to us in ascertaining the reasonableness of state courts' application of clearly established United States Supreme Court precedent," cases not decided by the Supreme Court are not the "legal benchmark against which to compare the state decision." See Fischetti v. Johnson, 384 F.3d 140, 149 (3d Cir. 2010) (internal citations and quotations omitted). "The Supreme Court itself appears to adopt this approach, since it has pointed to decisions of federal and state appeals courts as evidence that an interpretation of Supreme Court precedent was not objectively unreasonable." Id. (citing Price v. Vincent, 538 U.S. 634, 643 & n.2 (2003)). Johnson v. Williams, 568 U.S. 289, 301 (2013) ("When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted.").
A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that "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 [the 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 [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A]n unreasonable application of federal law," however, "is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).
Petitioner argues the trial court violated his Sixth Amendment right to represent himself when the court denied his request to proceed pro se at trial. (See ECF No. 1 at 5.) At a pre-trial hearing, one day before jury selection was scheduled to begin, Petitioner's trial counsel indicated to the court that Petitioner had "some concerns" regarding his counsel. (See ECF No. 12-3 at 121.) Petitioner explained to the court that he felt his trial counsel had not properly prepared for the case and that he and his attorney had "a serious conflict of what we both think need[s] to be done in this case." (See id. at 122-23.) Towards the end of a lengthy colloquy between Petitioner and the court regarding Petitioner's concerns over his defense counsel, the following exchange occurred:
CORRECTIONS OFFICER: Turn around.
(Id. at 124.)
During the remainder of the pretrial hearing, Petitioner did not speak. (See generally ECF No. 12-3.) Upon conclusion of the hearing, the trial court asked both parties whether there were any additional issues. (See ECF No. 12-3 at 132.) Petitioner remained silent. (See id.)
On May 25, 2005, after the jury had been selected, Petitioner again requested to "put some things on the record." (See id. at 171.) Petitioner again expressed his displeasure with his attorney and stated that he felt he and his counsel disagreed about how his defense should be conducted. (See id. at 171-76.) Petitioner did not again mention representing himself. (See id.) In fact, it was not until Petitioner's sentencing four months later that he ever referenced his alleged request to proceed pro se. (See ECF No. 12 at 25; see generally ECF Nos. 12-3, 12-4.) At the sentencing, Petitioner interrupted the proceeding and stated:
(ECF No. 12-4 at 70.)
Petitioner was permitted to waive his right to be present at sentencing and he exited the courtroom. (See id. at 71.)
On direct appeal, the Appellate Division rejected this claim, holding that Petitioner's request to represent himself was not "clear and unequivocal," nor was it timely made. See Gore, 2009 WL 3460261, at *2, rev'd on other grounds, 15 A.3d 844. Specifically, the Appellate Division reasoned:
State v. Gore, 2009 WL 3460261, at *2-3.
The Sixth Amendment provides a defendant the right to represent himself during criminal proceedings. See Faretta v. California, 422 U.S. 806, 818 (1975) ("The right of self-representation finds support in the structure of the Sixth Amendment"). But, the "right of self-representation is not absolute." See Indiana v. Edwards, 554 U.S. 164, 171 (2008).
When a defendant does request to proceed pro se, he must make that request clearly, unequivocally, and in a timely manner. See Faretta, 422 U.S. at 835; see also Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161-62 (2000) ("The defendant must voluntarily and intelligently elect to conduct his own defense, and most courts require him to do so in a timely manner") (internal quotations and citations omitted). These requirements prevent defendants from both "making casual and ineffective requests to proceed pro se, and then attempting to upset adverse verdicts after trials at which they had been represented by counsel", as well as from proceeding pro se and then attempting to challenge "any subsequent conviction by alleging a denial of the right to counsel." See Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000) (internal quotations and citations omitted). Indeed, there exists "a strong presumption against waiver of the Sixth Amendment protections." See Patterson v. Illinois, 487 U.S. 285, 307 (1988) (Stevens, J., dissenting) (citing Michigan v. Jackson, 475 U.S. 625, 633 (1986)).
Addressing first whether Petitioner's request was made clearly and unequivocally, the United States Supreme Court has never set forth with specificity how a defendant must indicate his desire to represent himself. See Barney v. D'Illio, Civ. No. 15-0057, 2018 WL 2018054, at *9 (D.N.J. May 1, 2018). There is no "talismanic formula" a defendant must recite "to open the eyes and ears of the Court to his request to invoke his/her Sixth Amendment rights under Faretta." See Buhl, 233 F.3d at 792 (quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)). Rather, the request should be analyzed under a case specific inquiry. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ("The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case.").
Several federal circuit courts of appeal have held that a petitioner's singular inquiry about whether he may proceed pro se does not constitute a clear and unequivocal request. See United States v. Pena, 279 F. App'x 702, 706 (10th Cir. 2008) ("[O]ur sister circuits have held that questions and remarks about self-representation that resemble Mr. Pena's single question to the trial judge ("[C]an I represent myself?") have not constituted a clear and unequivocal request for self-representation."). In Pena, during a discussion with the trial court regarding his dissatisfaction with defense counsel, the defendant asked the judge, "Then I want-can I represent myself?" See id. at 704. The judge did not address the defendant's request. See id. The Tenth Circuit held that this single inquiry was not a clear and unequivocal assertion of the defendant's intent to represent himself. See id. at 707. Similarly, in Burton v. Collins, 937 F.2d 131, 134 (5th Cir. 1991), the Fifth Circuit held that the defendant's single question, "May I represent myself?" which followed his expression of dissatisfaction with his trial counsel, was not a clear and unequivocal assertion of his desire to proceed pro se either. In Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir. 1990), after the defendant's motion to substitute defense counsel was denied, the defendant stated to the court: "Hey, I don't see why [the motion for substitute counsel] isn't granted. I'm doing the filing of the motion [for a new trial]. What good is [appointed trial counsel] doing for me now? I want to fight in pro per then. Relieve him and I do this myself." (emphasis and alterations in original). In that case, the Ninth Circuit held that the defendant had also not clearly and unequivocally asserted his right to proceed pro se, reasoning that, "[t]he trial court properly may deny a request for self-representation that is a momentary caprice or the result of thinking out loud." See id. at 888.
Here, Petitioner's singular inquiry about the possibility of representing himself is resoundingly similar to the cases discussed above. Although the decisions of the other circuit courts are not legal benchmarks against which to compare the New Jersey state court's adjudication of this claim, the decisions of the other circuit courts are helpful in ascertaining that the Appellate Division's application of Supreme Court precedent was not unreasonable. See Fischetti, 384 F.3d at 148.
Moreover, "under AEDPA the [Supreme] Court views its precedents in their particular factual settings. The touchstone precedents are not to be examined by looking to broad pronouncements or generative principles in the opinion. The `materially indistinguishable' test presupposes a fact-specific analysis of the Supreme Court case law." See Fischetti, 384 F.3d at 148. In Faretta, where the Supreme Court issued the "clear and unequivocal" standard, the Court held that the defendant "declared to the trial judge that he wanted to represent himself and did not want counsel." See Faretta, 422 U.S. at 835 (emphasis added). In the instant case, however, Petitioner merely issued a tentative, singular inquiry about the possibility of proceeding pro se. This important difference demonstrates that Petitioner's case is not "materially indistinguishable" from the one in Faretta, and therefore, does not dictate the same result.
Given the foregoing, and the AEDPA standard of deference owed to state court decisions, this Court cannot say that the Appellate Division's holding that Petitioner did not make a clear and unequivocal request to represent himself was either contrary to, or an unreasonable application of, Supreme Court precedent.
This Court also does not find that the Appellate Division's decision that Petitioner's request was untimely was contrary to, or an unreasonable application of United States Supreme Court precedent. "There is little Supreme Court precedent that specifically addresses the issue of timing of a Faretta request." See Barney, 2018 WL 2018054, at *9. In Faretta, the Supreme Court approvingly noted that the defendant made his request to represent himself "weeks before trial," but did not remark upon whether a request made closer to the date of trial may be considered untimely. See Faretta, 422 U.S. at 807, 835. In Martinez, a case decided after Faretta, the Supreme Court explained that a defendant "must voluntarily and intelligently elect to conduct his own defense, and most courts require him to do so in a timely manner," but again, the Court did not elaborate on what constituted a "timely manner." See Martinez, 528 U.S. at 161-62.
The Third Circuit has indicated that a defendant's request to proceed pro se made immediately before trial may be timely, but it has not yet analyzed whether a state court's decision that a request is untimely would be contrary to Supreme Court precedent. In Alongi v. Ricci, 367 F. App'x 341 (3d Cir. 2010), the Third Circuit reversed a trial court's denial of a defendant's request to proceed pro se that was made immediately before jury selection. However, the Third Circuit's reversal was premised upon the trial court's misstatement of the Faretta standard, and the court's incorrect assertion that "the decision to permit a defendant to proceed pro se fell within the court's discretion." See id. at 347. The timeliness of the defendant's request was not discussed in the court's holding. See id. at 347-48. In United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), the Third Circuit held that an inmate's request to proceed pro se, made prior to jury selection, had also been improperly denied. In its holding, the Third Circuit stated that the district court "miss[ed] the mark" because the inquiry into the defendant's ability to represent himself was improperly focused upon the defendant's "skill and legal competency." See id. at 134. Thus, neither Alongi nor Peppers analyzed whether a trial court's denial of a request to proceed pro se made so close to trial would be contrary to Supreme Court precedent.
Other federal circuit courts of appeal have, however, expressly held that requests to proceed pro se made on the eve of trial are indeed untimely. In Parton v. Wyrick, 704 F.2d 415 (8th Cir. 1983), the Eighth Circuit held that "[e]ven after Faretta, supra, the timeliness of a waiver of counsel is a valid factor to be considered." See id. at 417 (citing Fritz v. Spalding, 682 F.2d 782, 785 (9th Cir. 1982) and United States v. Dunlap, 577 F.2d 867 (4th Cir. 1978)). The Parton court held that "the trial judge acted within his discretion in denying [the defendant's] request for selfrepresentation made for the first time on the morning of trial." See id. The Fourth Circuit has similarly held that the right to self-representation can be waived if not timely asserted. See United States v. Gillis, 773 F.2d 549, 559 (4th Cir. 1985); see also United States v. Mayes, 917 F.2d 457, 462 (10th Cir. 1990) ("If the right is not asserted before trial, it becomes discretionary with the trial court whether to allow the defendant to proceed pro se." (internal quotations and citations omitted)). The Fifth Circuit has also plainly stated, "we find nothing in Faretta to suggest that the Court intended to overrule the numerous decisions holding that the trial court may properly deny a defendant's motion to defend pro se when it is not made until the day of trial." See Fulford v. Maggio, 692 F.2d 354, 362 (5th Cir. 1982), rev'd on other grounds, 462 U.S. 111 (1983).
Fischetti, 384 F.3d at 151.
Like the Fifth Circuit, this Court does not find that Faretta dictated that a request to proceed pro se made immediately prior to trial must be deemed timely. See Fulford, 692 F.2d at 362. A closer look at Faretta demonstrates that the Supreme Court incorporated into its holding the fact that Faretta's request was made "weeks before trial." See Faretta, 422 U.S. at 835. See, e.g., Marshall v. Taylor, 395 F.3d 1058, 1060-61 (9th Cir. 2005) (explaining that because "the Supreme Court incorporated the facts of Faretta into its holding [. . .] the holding may be read to require a court to grant a Faretta request when the request occurs weeks before trial.") (internal quotations omitted). Here, unlike in Faretta, Petitioner's request was made the day before jury selection and not weeks prior to trial. Thus, the circumstances here were not "closely analogous to those that formed the basis" of Faretta. See Fischetti, 384 F.3d at 151. Absent Supreme Court precedent that states whether a request to proceed pro se on the eve of trial is either timely or untimely, and based upon the several other circuits who have found that requests made immediately before trial may be denied, this Court cannot say that the New Jersey state court's decision was contrary to, or an unreasonable application of federal law.
Under 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas proceeding where that petitioner's detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not disagree with this Court's conclusion that Petitioner fails to make a substantial showing of the denial of a constitutional right, Petitioner's habeas petition is inadequate to deserve encouragement to proceed further. Accordingly, a certificate of appealability shall not issue.
For the reasons stated above, the Petition for habeas relief is
