GIBBS v. BARTKOWSKI et al
Filing
69
OPINION. Signed by Judge Noel L. Hillman on 6/29/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARNELL GIBBS,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
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Civ. No. 11-1137 (NLH)
OPINION
APPEARANCES:
Carnell Gibbs
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
John J. Santoliquido, Esq.
James F. Smith, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, NJ 08330
Counsel for Respondents
HILLMAN, DISTRICT JUDGE
Pending before this Court is Petitioner Carnell Gibbs’
(“Petitioner”) Motion to File Reconsideration as Within Time.
ECF No. 68.
Also pending is Petitioner’s Motion for
Reconsideration, id., of this Court’s Opinion and Order denying
habeas relief under 28 U.S.C. § 2254.
ECF Nos. 66, 67.
Respondents have not filed an opposition.
For the reasons
stated below, the Motion to File Reconsideration as Within Time
is GRANTED, and the Motion for Reconsideration is DENIED.
I.
Procedural History
On February 9, 2011, Petitioner filed a habeas petition
with the Court.
ECF No. 1.
The Court dismissed the Petition as
time-barred under 28 U.S.C. § 2244(d).
ECF Nos. 18, 19.
Petitioner filed a motion for reconsideration, which the Court
denied.
ECF No. 24.
Petitioner appealed to the Third Circuit
Court of Appeals, which vacated the Court’s judgment and
remanded the matter for further proceedings.
ECF No. 40.
On
April 30, 2018, the Court denied Petitioner’s habeas Petition on
the merits.
ECF Nos. 66, 67.
On May 15, 2018, Petitioner filed
the instant Motions with the Court. 1
ECF No. 68.
Petitioner
also requests that the Court appoint him pro bono counsel and
issue a certificate of appealability.
II.
DISCUSSION
A. Standard
Whether brought pursuant to Federal Rule of Civil Procedure
59(e), or pursuant to Local Civil Rule 7.1(i), the scope of a
motion for reconsideration is extremely limited, and such
motions should only be granted sparingly.
Blystone v. Horn, 664
F.3d 397, 415 (3d Cir. 2011) (discussing Rule 59(e)); see also
1
With respect to Petitioner’s Motion to File Reconsideration
as Within Time, Petitioner explains that he was not given
immediate access to the prison law library. (ECF No. 68 at 6.)
The Court will permit Petitioner file his Motion for
Reconsideration as within time.
2
Delanoy v. Twp. Of Ocean, No. 13–1555, 2015 WL 2235103, at *2
(D.N.J. May 12, 2015) (discussing Local Civil Rule 7.1(i)).
An
order of the Court may be altered or amended pursuant to such a
motion only where the moving party establishes one of the
following grounds for relief: “(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 to prevent manifest
injustice.”
Delanoy, 2015 WL 2235103 at *2 (quoting Max's
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999));
see also Blystone, 664 F.3d at 415 (applying same standard to
59(e) motions).
In the context of a reconsideration motion,
manifest injustice will generally arise only where “the Court
overlooked some dispositive factual or legal matter that was
presented to it,” or committed a “direct, obvious, and
observable” error.
Brown v. Zickefoose, No. 11–3330, 2011 WL
5007829, at *2, n.3 (D.N.J. 2011).
Reconsideration motions may
not be used to relitigate old matters, raise new arguments, or
present evidence or allegations that could have been raised
prior to entry of the original order.
at *2.
Delanoy, 2015 WL 2235103
As such, courts should grant a motion for
reconsideration only where its prior decision “overlooked a
factual or legal issue that may alter the disposition of the
matter.”
Id.
3
B. Analysis
In his Motion for Reconsideration, Petitioner appears to
present one argument, that the Court overlooked his claim that
PCR counsel was ineffective in connection with his decision not
to use information obtained from a ballistics expert.
68 at 20–29.
ECF No.
In support of his argument, Petitioner explains
that PCR counsel obtained a ballistics expert to conduct testing
on the State’s ballistic evidence.
ECF No. 68 at 22.
He
alleges that the State only turned over six of the seven bullets
found at the crime-scene.
Id.
He further asserts that the
expert report provided by the ballistics expert was inconclusive
as to whether all the bullets found at the crime scene were from
the same gun.
Id.
He explains that this finding contradicted
the State’s expert’s factual findings which concluded that the
bullets were all fired from the same gun.
Id. at 21.
He claims
that PCR counsel was ineffective in failing to alert the PCR
court of these matters.
Id. at 24.
With respect to this argument, the Court highlights that
this claim is unexhausted and was never raised in Petitioner’s
habeas petition.
Instead, it was raised in a motion to stay his
habeas petition, ECF No. 43, which was denied by this Court on
November 23, 2015.
ECF No. 57.
As relevant background, on May 26, 2015, Petitioner filed a
motion to stay his habeas petition, to exhaust in state court an
4
additional nine claims for relief. 2
ECF Nos. 43, 44.
Together
with his motion to stay, Petitioner filed a motion to amend his
habeas petition.
The list of nine unexhausted claims were
attached to a letter filed with the Court that same day.
No. 45 at 3–5.
ECF
Specifically, claim number five of that list
appears identical to the claim he now raises in his Motion for
Reconsideration.
Number five reads:
PCR counsel was ineffective for not raising
defendant's claim after counsel never
submitted into evidence the independent
expe[r]t report stating that 3 of the 6
bullet’s that had been sen[t] to him came
from another gun and to say about the 7
bullet that was never sen[t] to him, after
the state expe[r]t witness report’s stated
all 17 teen cases and 7 bullet's came [from]
the same gun, PCR counsel independent
expe[r]t never received the 7 shelling.
ECF No. 45 at 3 (capitalized in original).
On October 23, 2015, this Court denied Petitioner’s motions
to stay and amend his habeas petition.
ECF No. 57.
This Court
explained in relevant part:
Petitioner’s Motion [to Stay] is devoid of
any argument demonstrating “good cause” for
why he has failed to exhaust these claims.
More specifically, Petitioner does not
explain why these claims were not, or could
not have been, previously exhausted.
2
The Court notes that this was the second motion to stay
filed by Petitioner. The first motion to stay was denied by the
Court as moot. ECF Nos. 18, 19. After the Third Circuit’s
remand Order, Petitioner filed an identical motion to stay. ECF
Nos. 43, 44.
5
In his Motion [to Stay], Petitioner does not
provide any reason for his failure to bring
these claims in his state court proceedings.
Instead, Petitioner simply states that these
new claims were discovered, “with the help
of a paralegal here at the prison and
petitioner pouring over the trial
transcripts[.]” (Mot. 5, ECF No. 44). This
statement, alone, is insufficient to
establish the “good cause” required by
Rhines [v. Weber, 544 U.S. 269 (2205)].
. . .
Furthermore, Petitioner does not offer any
supporting facts or elaborate upon the
claims he seeks to add. Therefore, in
addition to the fact that Petitioner has not
adequately explained his failure to exhaust,
Petitioner has likewise not shown that any
of these claims have potential merit.
Accordingly, a stay is not warranted and
Petitioner’s request to amend his Petition
to add the nine unexhausted claims is
denied.
ECF No. 57 at 8, 12.
This Court further explained:
Leave to amend under Rule 15(a) should be
“freely given when justice so requires.”
FED. R. CIV. P. 15(a); see also Foman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9
L. Ed. 2d 222 (1962) (“In the absence of any
apparent or declared reason — such as undue
delay, bad faith or dilatory motive on the
part of the movant, . . . futility of
amendment, etc. — [leave to amend] should be
‘freely given.’”). In this case . . . the
claims Petitioner seeks to add are either
lacking in merit, or could have been raised
in earlier state proceedings, prior to
filing this habeas Petition. In light of
the futility of amendment and Petitioner’s
undue delay in exhausting these claims,
amendment will be denied. See, e.g., Burgos
6
v. Ricci, No. 08-5892, 2012 WL 933205, at
*13 (D.N.J. Mar. 19, 2012) (finding that
amendment would be inappropriate, in part,
due to petitioner’s undue delay in failing
to exhaust claims before state court).
Id. at 12, n.4.
Thus, insofar as Petitioner alleges that this Court
overlooked his argument related to the alleged ineffective
assistance of PCR counsel, he is incorrect.
Instead, as
demonstrated above, the Court specifically excluded that
argument from being presented to the Court for habeas review,
when it denied Petitioner’s motions to stay and amend his habeas
petition.
Therefore, because Petitioner has not shown that the
Court overlooked his claim, he has not provided a basis for
reconsideration. 3
Accordingly, the Motion for Reconsideration is
denied. 4
3
To the extent Petitioner is asking this Court to reconsider
the Court’s November 23, 2015 Order, ECF No. 58, denying
Petitioner’s motions to stay and amend his habeas petition, that
argument is out of time. See L. CIV. R. 7.1(i) (“a motion for
reconsideration shall be served and filed within 14 days after
the entry of the order or judgment.”); see also FED. R. CIV. P.
59(e) (“A motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.”).
4
Because the Court finds that the appointment of counsel
will not benefit Petitioner or the Court, his request for pro
bono counsel is denied. See Dime v. Aviles, No. 15-1410, 2015
WL 1114143, at *1 (D.N.J. Mar. 10, 2015) (citing Reese v.
Fulcomer, 946 F.2d 247, 263–64 (3d Cir. 1991)) (explaining what
a court should consider in granting or denying a request for the
appointment of pro bono counsel.)
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III. CONCLUSION
For the reasons stated above, Petitioner’s Motion to File
Reconsideration as Within Time is GRANTED.
Petitioner’s Motion
for Reconsideration of this Court’s denial of habeas relief is
DENIED.
An appropriate order follows.
Dated: June 29, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Similarly, because jurists of reason would not disagree
with the Court’s April 30, 2018 Opinion denying habeas relief,
ECF No. 66, or the instant Opinion denying reconsideration, the
Court will not grant a certificate of appealability. See
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
8
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