Lester S. Barney v. Administrator of New Jersey State Prisons

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2258
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LESTER S. BARNEY,
Appellant
v.
ADMINISTRATOR OF NEW JERSEY STATE PRISONS;
ATTORNEY GENERAL OF NEW JERSEY
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:15-cv-00057)
District Judge: Honorable Noel L. Hillman
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Argued: May 24, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges
(Filed: September 7, 2022)
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Lawrence D. Gerzog [ARGUED]
521 Fifth Avenue, 17th Floor
New York, NY 10175
Counsel for Appellant

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Jennifer B. Paszkiewicz [ARGUED]
Burlington County Office of Prosecutor
49 Rancocas Road, P.O. Box 6000
Mount Holly, NJ 08060
Counsel for Respondents
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Lester Barney wanted to represent himself at trial. But he
was not allowed to do so; the court got his request too late.
Now Barney asks for a new trial on two grounds: he was denied
the right to represent himself, and his lawyer did not help him
assert that right. But the state court did not unreasonably deny
his request to represent himself. And he cannot win on his in-
effective-counsel claim unless he proves prejudice. He does
not. So we will affirm the denial of his habeas petition.
I. BACKGROUND
By 2003, Barney’s marriage had deteriorated. His wife got
a restraining order against him and temporary custody of their
young son. Soon after, she was found dead near their son’s day-
care, her throat cut open. Barney was charged with her murder.
A. Barney’s trial
Barney had a rocky relationship with his defense lawyer,
Michael Riley. They “disagreed on a lot of things.” App. 96.
Eventually, Barney had had enough and asked to represent

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himself. He claims that he told Riley of his plan after a hearing
on July 14, 2005. Soon after that, Barney wrote the judge a
letter to let him know that he wanted to represent himself.
But things did not go as planned. Though Barney had dated
the letter July 21, the judge did not get it until August 10, the
day before trial began. In court that day, the judge held up the
letter, explained that he had not read it, and handed it to Riley.
Riley promised Barney that he would “deal with” Barney’s re-
quest. App. 98. But he never did. After a two-week trial, Bar-
ney was convicted of first-degree murder. His conviction was
affirmed on appeal.
B. Barney’s collateral proceedings
Barney filed two state habeas petitions. The first was de-
nied. The second one was also denied at first, but the New Jer-
sey Supreme Court remanded it for an evidentiary hearing on
“[1] whether [Barney] clearly and unequivocally made a re-
quest to the trial court to represent himself or [2] whether [Bar-
ney] communicated with his attorney to make such a request
on his behalf.” App. 91.
After hearing testimony, the Superior Court found that Bar-
ney did not “clearly and unequivocally” tell the court or Riley
that he wanted to represent himself. App. 141. The New Jersey
Supreme Court then declined to hear his appeal.
So Barney filed this federal habeas petition. The District
Court denied relief but granted a certificate of appealability on
the two issues before us: Did the trial court deny Barney the
right to represent himself? And did his lawyer perform defi-
ciently by not securing that right?

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On federal habeas, we defer to the state habeas court. Bar-
ney says its ruling was both “contrary to, or involved an unrea-
sonable application of, clearly established” Supreme Court
precedent and “based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d). Yet he does not quibble with the
state habeas court’s account of what happened, just with its le-
gal conclusions. So we need focus only on the § 2254(d)(1)
standard: an unreasonable application of law. See Jermyn v.
Horn, 266 F.3d 257, 281 n.10 (3d Cir. 2001).
II. THE STATE HABEAS COURT’S FARETTA RULING
WAS NOT UNREASONABLE
Defendants have a Sixth Amendment right to represent
themselves at trial. Faretta v. California, 422 U.S. 806, 832
(1975). But to exercise that right, they must invoke it “clearly
and unequivocally.” Id. at 835. Barney says he did just that.
If that was all Faretta required, we might agree with Bar-
ney. The state habeas court read his letter as mere griping about
Riley with only a vague “desire” to represent himself. App. 16.
Yet the letter seems clear. “On July 14th 2005, after my hearing,
I informed my pool attorney that I will proceed on a PRO-SE
basis,” Barney wrote. App. 88. “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.” Id. So the state habeas court’s holding
to the contrary may have been unreasonable. But we need not
decide that issue because Barney loses on another ground.
The state habeas court rejected Barney’s Faretta claim as
untimely. That was reasonable. 28 U.S.C. § 2254(d)(1). “[T]he
right to self-representation is not absolute.” Martinez v. Ct. of
Appeal of Cal., Fourth App. Dist., 528 U.S. 152, 161 (2000).

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“[M]ost courts require [that such requests be] timely.” Id. at
162. Indeed, Faretta’s judge heard his request “weeks before
trial,” and the Faretta Court limited its holding to “these cir-
cumstances.” 422 U.S. at 835–36. But here, the trial court did
not get Barney’s request until the eve of jury selection. So the
state habeas court’s ruling was not unreasonable.
III. THE SUPERIOR COURT’S INEFFECTIVENESS RULING
WAS NOT UNREASONABLE
The state habeas court was also supposed to find whether
Barney asked Riley to help him assert his right to represent
himself. But it said only that Barney’s “communication with
his attorney to make such a request on his behalf was not
clearly and unequivocally made.” App. 141. Because neither
party has shown otherwise, we presume that this finding
amounts to denying his ineffectiveness claim on the merits. See
Johnson v. Williams, 568 U.S. 289, 301 (2013).
For an ineffective-assistance-of-counsel claim, Barney
must show both that (1) Riley’s lawyering was objectively de-
ficient and (2) as a result, he suffered prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Plus, the state habeas
court’s contrary ruling must have been unreasonable. 28
U.S.C. § 2254(d)(1).
Even if his lawyer performed deficiently, Barney cannot
show prejudice. He tries to check that box in two ways. Yet
both fail.
1. Complete abandonment. Occasionally, courts presume
prejudice. They do so, for instance, when a defendant is
“[a]ctual[ly] or constructive[ly] deni[ed] the assistance of

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counsel altogether” at a critical stage of trial. Strickland, 466
U.S. at 692; accord United States v. Cronic, 466 U.S. 648, 659
(1984). Barney says Riley completely failed to help him by not
getting him a Faretta hearing.
But that is a far cry from cases where the Supreme Court
has found constructive denial of counsel. In one case, for in-
stance, the lawyer forgot to file a notice of appeal. Roe v.
Flores-Ortega, 528 U.S. 470, 483 (2000). In another, the law-
yer left his client “completely without representation” on ap-
peal. Penson v. Ohio, 488 U.S. 75, 88 (1988). But Riley ac-
tively defended Barney at trial. Thus, Barney cannot claim
abandonment.
2. Structural error. So he pivots. The right to represent one-
self is structural: on direct appeal, we do not require proof of
prejudice. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8
(1984). Thus, Barney says, on habeas he need not prove that
his lawyer’s inaction prejudiced him.
That position overstates the structural-error rule. True, if
Barney had raised the error at trial and on direct appeal, he
would be entitled to “automatic reversal.” Weaver v. Massa-
chusetts, 137 S. Ct. 1899, 1910 (2017) (internal quotation
marks omitted). But he did not. Instead, he now raises the issue
on habeas through an ineffective-assistance-of-counsel claim.
And as Weaver tells us, that context changes our task.
On habeas, not all structural errors require automatic rever-
sal. Defendants must still prove prejudice for some. Id. at 1912.
A court cannot presume prejudice if a structural error does not
“always lead to a fundamentally unfair trial” and does not “de-
prive[ ] the defendant of a reasonable probability of a different

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outcome.” Id. at 1911, 1913. For instance, “prejudice is not …
automatic[ ]” for violations of the public-trial right when raised
through ineffective-assistance claims. Id. at 1911; see also
Baxter v. Superintendent Coal Twp. SCI, 998 F.3d 542, 547–
49 (3d Cir. 2021) (assuming structural error in jury instructions
yet, based on Weaver, still demanding prejudice).
A defendant’s right to represent himself fits that bill. Unlike
some fundamental rights, Weaver teaches, that right “is not de-
signed to protect the defendant from erroneous conviction.”
137 S. Ct. at 1908. Rather, it protects a defendant’s autonomy,
his right “to make his own choices about” his defense. Id.; cf.
Faretta, 422 U.S. at 826–34 (grounding the right in not only
“the inestimable worth of free choice” and “the virtues of self-
reliance,” but also the colonists’ “traditional distrust of law-
yers” as potential tools of the Crown). Nor do violations of the
right necessarily cast doubt on the reliability of the verdict or
sentence. On the contrary, when a defendant is denied the right,
it usually works in his favor. Weaver, 137 S. Ct. at 1908.
We thus hold that Barney must prove prejudice. He cannot.
When pressed at oral argument, his lawyer conceded as much.
Oral Arg. 9:10–18 (Judge Bibas: “You cannot make a showing
of prejudice in this case?” Counsel for Barney: “Specific prej-
udice, I can’t make a showing.”). Nor do his briefs suggest
prejudice. He never says what he would have done differently
or how that would have likely changed the outcome of his trial
or sentencing.
* * * * *
The trial court did not get Barney’s request to represent
himself until the eve of trial. So the state habeas court

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reasonably rejected his Faretta claim. Likewise, it fairly de-
nied his ineffective-assistance-of-counsel claim. Without prej-
udice, Barney goes no further. So we will affirm the denial of
his habeas petition.

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