MASON v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Noel L. Hillman on 12/21/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IRVING MASON,
Petitioner,
v.
WARDEN DONNA ZICKEFOOSE,
Respondent.
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Civil No. 10-197 (NLH)
OPINION
APPEARANCES:
IRVING MASON, Petitioner pro se
#02193-748
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
HILLMAN, District Judge
This matter comes before the Court on the motions of
Petitioner, Irving Mason, seeking relief from judgment, pursuant
to Fed.R.Civ.P. 60(b) and a motion to amend, (Docket entry nos.
10 and 11), with regard to this Court’s January 4, 2011 Opinion
and Order dismissing with prejudice Petitioner’s habeas petition
under 28 U.S.C. § 2241 for lack of jurisdiction.
nos. 3 and 4).
(Docket entry
Petitioner filed his motions on or about April
25, 2012, and November 15, 2012, respectively.
In order to
entertain Petitioner’s Rule 60(b) motion, the Court will have the
Clerk reopen the file.
These motions are decided without oral
argument pursuant to Federal Rule of Civil Procedure 78.
For the
reasons stated below, Petitioner’s motions will be denied, and
the Clerk will be directed to re-close the file.
I.
BACKGROUND
On January 13, 2010, Petitioner filed a petition for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2241, in which he
challenged the validity of his April 18, 2001 judgment of
conviction, in the United States District Court for the Southern
District of New York, on numerous federal charges, including, the
conducting and participating in the affairs of a racketeering
enterprise in violation of the Racketeering Influenced and
Corrupt Organizations Act (“RICO”)(18 U.S.C. § 1962), RICO
conspiracy (18 U.S.C. § 1962(d)), conspiracy to commit robbery
(18 U.S.C. § 1951), attempted robbery (18 U.S.C. §§ 1951, 1952),
possessing a firearm (18 U.S.C. § 922(g)), and possessing
ammunition (18 U.S.C. § 922(g)).
(Docket entry no. 1).
The procedural history relevant to Petitioner’s challenged
conviction shows that Petitioner had appealed from his conviction
and sentence, and on November 21, 2002, the United States Court
of Appeals for the Second Circuit affirmed the judgment of
conviction.
The Supreme Court denied certiorari in 2003.
See
United States v. Mitchell, 51 Fed. Appx. 355 (2d Cir. Nov. 21,
2002), cert. denied, 538 U.S. 939 (2003).
Thereafter, Petitioner
filed a motion to vacate his sentence under 28 U.S.C. § 2255,
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which was denied by the Honorable John F. Keenan, U.S.D.J. of the
Southern District of New York, on August 9, 2005.
Judge Keenan
denied Petitioner’s motion for a certificate of appealability on
October 6, 2005.
Petitioner then filed a motion to vacate his
sentence and conviction pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, or alternatively, 28 U.S.C. § 1651(a).
Judge Keenan denied Petitioner relief in an opinion entered on
May 6, 2009.
Mason v. United States, 2009 WL 1250158 (S.D.N.Y.
May 6, 2009).
Petitioner filed a notice of appeal on July 9,
2009, but a certificate of appealability was denied on August 20,
2009.
Mason v. United States, 2009 WL 2575855 (S.D.N.Y. Aug. 20,
2009).
Petitioner then filed the subject petition for habeas
relief, asserting that he is entitled to relief under § 2241 as a
result of an intervening change of law.
Namely, Petitioner
argued that he is actually innocent of a Hobbs Act violation,
based on United States v. Parkes, 497 F.3d 220 (2d Cir. 2007),
which purportedly found that the conduct similar to which
Petitioner was convicted was not criminal.
Petitioner also
argued that the United States District Court for the Southern
District of New York lacked subject matter jurisdiction to
convict and sentence him.
Petitioner acknowledged that he had
raised these two arguments for the first time in his Rule 60(b)
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motion, filed on November 26, 2008, and his motion for
reconsideration, filed on May 15, 2009.
In an Opinion and Order entered on January 4, 2011, this
Court dismissed with prejudice the habeas petition for lack of
jurisdiction, as a prohibited second or successive motion to
vacate under 28 U.S.C. § 2255.
In particular, this Court found
as follows:
In this case, Petitioner argues that there was no
jurisdiction to convict him because the Government failed to
prove the required elements of a Hobbs Act violation.
Further, Petitioner argues that he was wrongly convicted of
conduct which is not criminal under the definition of “an
Affect on Interstate Commerce,” as set forth in United
States v. Parkes, 497 F.3d 220 (2d Cir. 2007), which can
also be characterized as a jurisdictional defect.
Petitioner raised these very same claims in his prior motion
under Rule 60(b), which was denied by Judge Keenan.
Judge Keenan found that Petitioner’s motion was attacking
his underlying conviction and not the integrity of the
habeas proceeding. Thus, the court held that, whether
couched as a Rule 60(b) motion or a writ of error coram
nobis under 28 U.S.C. § 1651(a), Petitioner’s request for
relief was more properly governed under 28 U.S.C. § 2255,
which was unauthorized as Petitioner already had
unsuccessfully challenged his conviction and sentence under
§ 2255, and he had failed to obtain authorization from the
Second Circuit to file a second or successive § 2255 motion.
See Mason v. United States, 2009 WL 1250158,*2, *3 (S.D.N.Y.
May 6, 2009).
However, in this action, Petitioner argues that there was an
intervening change in the law that renders non-criminal the
crimes for which he was convicted under the Hobbs Act, thus
bringing his action under the “savings clause” and the
Dorsainvil exception. Petitioner fails to cite a Supreme
Court ruling that rendered non-criminal the conduct for
which he was convicted.
Rather, Petitioner cites to a Second Circuit decision in
Parkes, which held that the Hobbs Act requires the jury to
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determine, beyond a reasonable doubt, whether the conduct
affected, or would have affected, interstate commerce,
abrogating United States v. Fabian, 312 F.3d 550 (2d Cir.
2002), under which petitioner claims he was convicted.
However, in Parkes, the conviction was affirmed, finding
that the defendant’s robbery of a drug dealer would have
affected interstate commerce. The Second Circuit held that
the jurisdictional requirement of the Hobbs Act may be
satisfied by a showing of a very slight effect on interstate
commerce and that even a potential or subtle effect on
commerce is sufficient. Parkes, 497 F.3d at 230-31.
On his direct appeal, Petitioner raised a similar claim that
his conviction under the Hobbs Act must be reversed because
the attempted robbery of Connor could not have affected
interstate commerce. However, the Second Circuit found that
there need only be a de minimis connection to interstate
commerce in order to meet the requirement under the Hobbs
Act, and that the effect need only be possible, not actual.
The court further found that there was sufficient evidence
for the jury to find that the attempted robbery had the
requisite minimal effect on interstate commerce. Namely,
the record showed that Petitioner and the criminal
enterprise had targeted out-of-state drug buyers, and that
Connor traveled weekly from North Carolina to New York to
buy drugs. Thus, the attempted robbery of Connor could and
probably did discourage interstate travel sufficient to meet
the Hobbs Act requirement. United States v. Mitchell, 51
Fed. Appx. 355, 358 (2d Cir., Nov. 21, 2002).
Consequently, Petitioner has failed to show an intervening
change in the law in a decision rendered by the Supreme
Court that renders non-criminal the crimes for which he was
convicted under the Hobbs Act. See Dorsainvil, 119 F.3d at
251-52. He also fails to demonstrate any circumstances
amounting to a “complete miscarriage of justice” that would
justify application of the safety-valve language of § 2255
rather than its gatekeeping requirements. Therefore, this
Petition must be considered a second or successive motion
under § 2255, which Petitioner has not received
authorization to file, and over which this Court lacks
jurisdiction.[footnote omitted] 28 U.S.C. § 2255.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest of
justice, transfer such action ... to any other such court in
which the action ... could have been brought at the time it
was filed.” 28 U.S.C. § 1631.
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Although Petitioner has not petitioned the Court of Appeals
for the Second Circuit for leave to file a successive § 2255
motion, this petition clearly fails to allege any of the
predicate grounds permitting a second or successive § 2255
motion.1 Therefore, this Court finds that it would not be
in the interests of justice to transfer this Petition to the
Second Circuit, and accordingly, the Petition must be
dismissed for lack of jurisdiction.
(January 4, 2011 Opinion at pp. 7-11, Docket entry no. 3).
Petitioner appealed this Court’s decision to the United
States Court of Appeals for the Third Circuit.
On April 28,
2011, the Third Circuit summarily affirmed this Court’s Order.
(Docket entry no. 8).
Almost one year later, Petitioner filed the instant motion
for relief from judgment under Rule 60(b).
(Docket entry no 10).
In his motion, Petitioner acknowledges that, after the Third
Circuit’s decision on his appeal, he filed a “self styled ‘LAW OF
THE CASE DOCTRINE MOTION’” and requested permission to file a
successive petition in the United States Court of Appeals for the
Second Circuit.
Both applications were “procedurally denied on
March 13, 2012, as being unable to satisfy the criteria set forth
in 28 U.S.C. § 2255(h) as the intervening changes ‘did not
involve a new rule of Constitutional law that the Supreme Court
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Namely, Petitioner has not demonstrated, as required,
“(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(1) and (2).
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had held to be retroactive to cases on Collateral Review.’”
(Petitioner’s Motion at pg. 4, Docket entry no. 10).
Petitioner appears to argue that since the Second Circuit
denied his application to file a successive § 2255 motion, this
Court may now adjudicate his habeas petition on the merits.
He
again argues that he meets the Dorsainvil2 exception because he
is actually innocent of based on an intervening change in the law
in United States v. Needham, 604 F.3d 673, 679-83 (2d Cir. 2010)
and United States v. Parkes, 497 F.3d 220 (2d Cir. 2007).
(Petitioner’s Motion at pp. 6-7).
In his motion to amend (Docket entry no. 11), Petitioner
repeats his earlier arguments and relies on Wooten v. Cauley, 677
F.3d 303 (6th Cir. 2012).
Interestingly, in Wooten, as
determined in Petitioner’s case, the United States Court of
Appeals for the Sixth Circuit determined that the litigant was
not actually innocent, as required for him to challenge the
legality of his detention under § 2241.
II.
Wooten, 677 F.3d at 311.
DISCUSSION
Federal Rule of Civil Procedure 60(b) provides that “the
court may relieve a party ... from a final judgment, order, or
proceeding” on the grounds of:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
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In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
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(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b).
“The general purpose of Rule 60(b) ... is to strike a proper
balance between the conflicting principles that litigation must
be brought to an end and that justice must be done.”
Boughner v.
Sec’y of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir.
1978)(quoted in Coltec Industries, Inc. v. Hobgood, 280 F.3d 262,
271 (3d Cir. 2002)).
A motion filed pursuant to Rule 60(b) is “addressed to the
sound discretion of the trial court guided by accepted legal
principles applied in light of all the relevant
circumstances.” Rule 60(b), however, “does not confer upon
the district courts a ‘standardless residual of
discretionary power to set aside judgments.’ “Rather,
relief under Rule 60(b) is available only under such
circumstances that the “‘overriding interest in the finality
and repose of judgments may properly be overcome.’” “The
remedy provided by Rule 60(b) is ‘extraordinary, and [only]
special circumstances may justify granting relief under
it.’”
Tischio v. Bontex, Inc., 16 F. Supp.2d 511, 533 (D.N.J. 1998)
(internal citations omitted).
Relief is available only in cases evidencing extraordinary
circumstances.
See Ackermann v. United States, 340 U.S. 193
(1950); Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975).
motion under Rule 60(b)(6) “must be fully substantiated by
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adequate proof and its exceptional character must be clearly
established.”
FDIC v. Alker, 234 F.2d 113, 116–17 (3d Cir.
1956).
To the extent a moving party seeks to relitigate the court’s
prior conclusions, Rule 60(b) is not an appropriate vehicle.
“[C]ourts must be guided by ‘the well established principle that
a motion under Rule 60(b) may not be used as a substitute for
appeal.’
It follows therefore that it is improper to grant
relief under Rule 60(b)(6) if the aggrieved party could have
reasonably sought the same relief by means of appeal.”
Martinez–McBean v. Government of Virgin Islands, 562 F.2d 908,
911 (3d Cir. 1977)(citations omitted).
In this case, Petitioner has not demonstrated that he
satisfies any of the “extraordinary circumstances” warranting
60(b) relief.
He simply disagrees with this Court’s conclusion,
as well as every court decision in which Petitioner has litigated
this issue.
This Court also notes, as mentioned above, that
Petitioner’s claims have been reviewed by the sentencing court,
and two Courts of Appeals.
Thus, this Court having already
considered and addressed Petitioner’s arguments in and as part of
the January 4, 2011 Opinion, and the Court further finding that
Petitioner does not persuasively present any “mistake,
inadvertence, surprise, or excusable neglect,” any newly
discovered evidence, any fraud, misrepresentations, or
misconduct, or any other reason to warrant the extraordinary
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relief under Rule 60(b), Petitioner’s motion under Rule 60(b)
will be denied.
This Court reaffirms that this matter must be
dismissed as an impermissible successive § 2255 motion and that a
transfer to the sentencing court or the Second Circuit is not “in
the interests of justice,” under 28 U.S.C. § 1631.
Alternatively, this Court construes Petitioner’s motion as a
motion for reconsideration under Local Civil Rule 7.1(i).
Local
Civil Rule 7.1(i) permits a party to seek reconsideration by the
Court of matters “which [it] believes the Court has overlooked”
when it ruled on the motion.
L. Civ. R. 7.1(i); see NL
Industries, Inc. v. Commercial Union Insurance, 935 F. Supp. 513,
515 (D.N.J. 1996).
The standard for reargument is high and
reconsideration is to be granted only sparingly.
See United
States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).
The movant
has the burden of demonstrating either: “(1) an intervening
change in the controlling law; (2) the availability of new
evidence that was not available when the court [issued its
order]; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.”
Max’s Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
The Court will grant a motion for reconsideration only where its
prior decision has overlooked a factual or legal issue that may
alter the disposition of the matter.
Compaction Sys. Corp., 88
F. Supp.2d at 345; see also L.Civ.R. 7.1(i); Dunn v. Reed Group,
2010 U.S. Dist. LEXIS 2438 (D.N.J. Jan. 13, 2010)(L.Civ.R. 7.1(i)
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creates a specific procedure by which a party may ask the court
to take a second look at any decision “upon a showing that
dispositive factual matters or controlling decisions of law were
overlooked by the court in reaching its prior decision”).
word ‘overlooked’ is the operative term in the Rule.”
“The
Bowers,
130 F. Supp.2d at 612 (citation omitted); see also Compaction
Sys. Corp., 88 F. Supp.2d at 345.
Ordinarily, a motion for reconsideration may address only
those matters of fact or issues of law which were presented to,
but not considered by, the court in the course of making the
decision at issue.
See SPIRG v. Monsanto Co., 727 F. Supp. 876,
878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir. 1989).
Thus,
reconsideration is not to be used as a means of expanding the
record to include matters not originally before the court.
Bowers, 130 F. Supp.2d at 613; Resorts Int’l. v. Greate Bay Hotel
and Casino, Inc., 830 F. Supp. 826, 831 & n.3 (D.N.J. 1992);
Egloff v. New Jersey Air National Guard, 684 F. Supp. 1275, 1279
(D.N.J. 1988).
Absent unusual circumstances, a court should
reject new evidence which was not presented when the court made
the contested decision.
n.3.
See Resorts Int’l, 830 F. Supp. at 831
A party seeking to introduce new evidence on
reconsideration bears the burden of first demonstrating that
evidence was unavailable or unknown at the time of the original
hearing.
See Levinson v. Regal Ware, Inc., Civ. No. 89-1298,
1989 WL 205724 at *3 (D.N.J. Dec. 1, 1989).
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Moreover, L.Civ.R. 7.1(i) does not allow parties to restate
arguments which the court has already considered.
Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990).
See G-69 v.
Thus, a difference
of opinion with the court’s decision should be dealt with through
the normal appellate process.
Bowers, 130 F. Supp.2d at 612
(citations omitted); Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988); see also
Chicosky v. Presbyterian Medical Ctr., 979 F. Supp. 316, 318
(D.N.J. 1997); NL Industries, Inc. v. Commercial Union Ins. Co.,
935 F. Supp. 513, 516 (D.N.J. 1996) (“Reconsideration motions ...
may not be used to re-litigate old matters, or to raise arguments
or present evidence that could have been raised prior to the
entry of judgment.”).
In other words, “[a] motion for
reconsideration should not provide the parties with an
opportunity for a second bite at the apple.”
Tishcio v. Bontex,
Inc., 16 F. Supp.2d 511, 533 (D.N.J. 1998)(citation omitted).
Here, Petitioner does not and cannot allege that this Court
actually “overlooked” a factual or legal issue that may alter the
disposition of the matter, which is necessary for the Court to
entertain the motion for reconsideration.
He has not presented
the Court with changes in controlling law, factual issues that
were overlooked, newly discovered evidence, or a clear error of
law or fact that would necessitate a different ruling in order to
prevent a manifest injustice.
Instead, Petitioner simply
disagrees with this Court’s prior decision, and refuses to
acknowledge that the merits of his arguments were, in fact,
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addressed by the sentencing court and Second Circuit and
rejected.
As noted by this Court in its January 4, 2011 Opinion,
Petitioner had the opportunity and did raise his claim of actual
innocence based on an intervening change in the law, and his
claim was rejected.
Consequently, Petitioner cannot satisfy the
threshold for granting a motion for reconsideration here.
He
cannot have what would be at this point a third, fourth or fifth
bite at the apple.
His only recourse, if he disagrees with this
Court’s decision, should be through the normal appellate process.
He may not use a motion for reconsideration to re-litigate a
matter that has been thoroughly adjudicated by this Court.
III.
CONCLUSION
For the reasons set forth above, Petitioner’s Rule 60(b)
motion, and his motion to amend, will be denied.
An appropriate
order follows.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: December 21, 2012
At Camden, New Jersey
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