Jackson v. Warden et al

Filing 15

ORDER denying 14 Motion for Reconsideration. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on July 11, 2012. (Butler, Ayanna)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TERREL JACKSON

:
:
v.
:
:
WARDEN and
:
COMMISSIONER OF CORRECTIONS :

PRISONER
Case No. 3:11cv515 (VLB)

RULING ON PETITIONER’S MOTION FOR RECONSIDERATION [Doc. #14]
The petitioner asks the court to reconsider the decision granting the
respondents’ motion to dismiss. He also asks the court to appoint counsel to
represent him and schedule an evidentiary hearing in this case. For the reasons
that follow, the petitioner’s motion is denied.
The Second Circuit has held that “[t]he standard for granting [a motion for
reconsideration] is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995) (citations omitted). A motion for reconsideration may be
granted on one of only three grounds: (1) an intervening change in controlling
law; (2) the availability of newly discovered evidence; and (3) the need to correct
clear error or prevent manifest injustice. Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). That the court overlooked
controlling law or material facts may also entitle a party to succeed on a motion

to reconsider. Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (per
curiam) (“To be entitled to reargument, a party must demonstrate that the Court
overlooked controlling decisions or factual matters that were put before it on the
underlying motion.”) (internal quotation marks omitted). The petitioner cannot,
however, seek reconsideration to “plug gaps in an original argument or to argue
in the alternative once a decision has been made.” Horsehead Resource Dev.
Co., Inc. v. B.U.S. Envtl. Serv., Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996) (internal
quotation marks and citations omitted).
The court granted the respondents’ motion to dismiss on the ground that
the petitioner had not exhausted his state court remedies with regard to all of the
grounds for relief asserted in the petition. The court noted that the petitioner
could obtain review of those claims in state court by filing a habeas petition
asserting a claim of ineffective assistance of habeas counsel. See Doc. #12. In
the ruling, the court noted that if the petitioner prevailed in that state action, the
state court could reopen his appeal. The petitioner now argues that the
possibility of reopening the appeal does not constitute an available state court
remedy for exhaustion purposes.
The petitioner has misconstrued the court’s statement. Before filing his
claim in federal court, the petitioner must have utilized all available means to
secure appellate review of his claims. See Galdamez v. Keane, 394 F.3d 68, 73-74
(2d Cir.), cert. denied, 544 U.S. 1025 (2005). The availability of a state habeas
petition asserting a claim of ineffective assistance of habeas counsel is the

2

available state court remedy that must be utilized before the petitioner can be
said to have exhausted his available state court remedies. The motion for
reconsideration is denied on this ground.
The petitioner also argues that there has been an intervening change in the
law that would warrant reconsideration. He refers the court to a recent Supreme
Court decision holding that a criminal defendant has a right to effective
assistance of counsel when deciding whether to accept or reject a plea offer. See
Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 1384 (2012) (holding that Sixth
Amendment right to counsel extends to plea-bargaining process). The petitioner,
however, has not exhausted his state court remedies on this claim. Thus, the
argument is premature.
The petitioner’s motion for reconsideration [Doc. #14] is DENIED. The
court concludes that any appeal from this order would not be taken in good faith.
Thus, a certificate of appealability will not issue.
SO ORDERED this 11th day of July 2012, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge

3