GIBBS v. BARTKOWSKI et al

Filing 23

OPINION. Signed by Judge Noel L. Hillman on 3/18/2013. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
CARNELL GIBBS,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.

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Civil Action No. 11-1137 (NLH)

OPINION

APPEARANCES:
Carnell Gibbs, Pro Se
407358/SBI 399805C
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
James F. Smith
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, NJ 08330
Attorney for Respondents
HILLMAN, District Judge
Pending before this Court is a Motion for Reconsideration
(docket entry 21) filed by Petitioner on September 12, 2012.
Respondents have not filed opposition to the motion.

The

motion is decided without oral argument pursuant to Federal Rule
of Civil Procedure 78.

For the reasons stated below, the motion

will be denied, and the Clerk will be directed to close the
file.
BACKGROUND
According to the petition, Petitioner was convicted of
first degree murder, possession of a handgun for an unlawful
purpose, unlawful possession of a handgun, and conspiracy.

His

judgment of conviction, entered on June 2, 2000 in the Superior
Court of New Jersey, Atlantic County, led to a sentence of fifty
years with a thirty year period of parole ineligibility.

The

Superior Court of New Jersey, Appellate Division (“Appellate
Division”) affirmed Petitioner’s conviction on May 24, 2002. 1
The New Jersey Supreme Court denied Petitioner’s petition for
certification by order filed on October 21, 2002.
Petitioner filed a motion for post-conviction relief
(“PCR”) in the trial court on May 16, 2003. 2
August 22, 2007.

PCR was denied on

Petitioner filed an appeal to the PCR decision

in the Appellate Division on January 12, 2010.
Division affirmed on May 21, 2010.

1

The Appellate

Petitioner then appealed to

In his initial Petition, Petitioner lists this date as June
21, 2002. The May 24, 2002 date is taken from Petitioner’s most
recent filing.
2
In his initial Petition, Petitioner lists this date as June
2, 2003. The May 16, 2003 date is taken from Petitioner’s most
recent filing.

the New Jersey Supreme Court on June 2, 2010 and certification
was denied on October 5, 2010.
Petitioner signed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 for filing on February 9,
2011, and it was docketed by the Clerk of the Court on February
25, 2011.

He was advised of his rights pursuant to Mason v.

Meyers, 208 F.3d 414 (3d Cir. 2000), and an Order to Answer was
issued.

On July 8, 2011, Petitioner filed his first motion to

stay this matter (docket entry no. 11), claiming that he wished
to pursue nine previously unexhausted issues in state court.
None of those proposed claims were raised in the initial
petition.

Petitioner stated that those issues were recently

discovered with the help of a paralegal at the prison.
On January 9, 2012, this Court entered a Notice and Order
(docket entry no. 14) denying Petitioner’s first motion to stay,
without prejudice to Petitioner filing a response which would
include a properly supported motion to amend the petition to add
new claims contained in the addendum to Petitioner’s Motion to
Stay, to equitably toll the statute of limitations, and to stay
the petition, as amended.
Petitioner filed his response, including an amended
Petition (docket entry no. 15), a request to proceed in forma

pauperis 3 (docket entry no. 16), and an Amended Motion for Stay
and Abeyance (docket entry no. 17).

Petitioner’s amended motion

set forth his arguments as to why he believed that the Petition
should be stayed, and provided further dates, as listed above,
regarding the timeliness of the Petition.
On August 20, 2012, this Court entered an Opinion and Order
dismissing this matter as time-barred and denied Petitioner’s
Amended Motion for Stay and Abeyance as moot.

Petitioner then

filed this Motion for Reconsideration on September 12, 2012.
DISCUSSION
In his motion, Petitioner attempts to reassert his stance
that the Petition is not time-barred.

However, he presents no

new evidence to support this contention.
Motions for reconsideration are not expressly recognized in
the Federal Rules of Civil Procedure.

See United States v.

Compaction Sys. Corp., 88 F. Supp.2d 339, 345 (D.N.J. 1999).
the District of New Jersey, Local Civil Rule 7.1(i) governs
motions for reconsideration.
Local Civil Rule 7.1(i) permits a party to seek
reconsideration by the Court for matters “which [it] believes
the Judge . . . has overlooked” when it ruled on the motion.

3

Petitioner paid the filing fee on April 25, 2011.

In

See L. Civ. R. 7.1(i); see also NL Indus., Inc. v. Commercial
Union Ins., 935 F. Supp. 513, 515 (D.N.J. 1996).

The standard

for re-argument is high and reconsideration is to be granted
only sparingly.
(D.N.J. 1994).

See United States v. Jones, 158 F.R.D. 309, 314
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 Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
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.

See Compaction Sys. Corp.,

88 F. Supp.2d at 345; see also L. Civ. R. 7.1(i).
‘overlooked’ is the operative term in the Rule.”

“The word
Bowers v.

Nat’l Collegiate Athletics Ass’n, 130 F. Supp.2d 610, 612; 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.

See

Absent unusual circumstances, a

court should reject new evidence which was not presented when
the court made the contested decision.

See Resorts Int’l v.

Greate Bay Hotel & Casino, Inc., 830 F. Supp. 826, 831 n.3
(D.N.J. 1992).

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., No. 89-1298, 1989 WL

205724, at *3 (D.N.J. Oct. 6, 1989).
Moreover, L. Civ. R. 7.1(i) does not allow parties to
restate arguments which the court has already considered.
G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990).

See

Thus, a

difference of opinion with the court’s decision should be dealt
with through the normal appellate process.

See Bowers, 130 F.

Supp.2d at 612; see also NL Industries, Inc., 935 F. Supp. at
513 (“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, this Court has reviewed Petitioner’s motion for
reconsideration, and finds that the arguments presented by
Petitioner appear to be an attempt to re-litigate issues
previously raised by Petitioner in this matter.

Petitioner asks

the Court to reconsider its ruling regarding timeliness.
However, this issue was previously examined and considered by
this Court in its Opinion.

This Court finds nothing in its

application of law or legal conclusions made in the August 2012
Opinion to warrant reconsideration.
Petitioner does not point to any “new” or “overlooked”
factual or legal issues that may alter the disposition of the
matter, as required in a motion for reconsideration.

This Court

finds that Petitioner fails to present any new facts or
evidence, or even “overlooked” facts or legal issues, to satisfy
the threshold for granting reconsideration.
Further, Petitioner has not presented the Court with
changes in controlling law, or a clear error of law or fact that
would necessitate a different ruling in order to prevent a
manifest injustice in this instance.

He may not use a motion

for reconsideration to re-litigate a matter that has been
previously adjudicated by this Court.
CONCLUSION
Therefore, for the reasons expressed above, Petitioner’s
motion is denied for lack of merit.

An appropriate Order

follows.

At Camden, New Jersey

Dated:

March 18, 2013

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge