BROWN v. ZICKEFOOSE
Filing
8
MEMORANDUM OPINION AND ORDER that the Clerk shall reopen this matter. ORDERED that Petitioner's 7 Motion for reconsideration is granted in substance and the Court's prior determination shall remain in force. ORDERED that the Clerk shall close this matter. ORDERED that the Court withdraws its jurisdiction over this action. Signed by Judge Robert B. Kugler on 10/18/2011. (TH, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
:
Petitioner,
:
:
v.
:
:
DONNA ZICKEFOOSE,
:
:
Respondent.
:
_______________________________:
TERRELL BROWN a/k/a
MARCUS HOWARD
This
submission
matter
of
a
comes
Civil Action No.
11-3330 (RBK)
MEMORANDUM OPINION
AND ORDER
before
document
the
titled
Court
upon
“Appellant’s
Petitioner’s
Memorandum
In
Opposition to Summary Judgment,” see Docket Entry No. 7, and it
appearing that:
1.
On August 15, 2011, this Court dismissed Petitioner’s § 2241
petition
on
the
grounds
of
want
of
jurisdiction,
since
Petitioner challenged the enhancement of his federal sentence
ordered by the United States District Court for the District
of Indiana (“District of Indiana”).
See Docket Entry No. 2
(detailing, at length, Petitioner’s challenges, the rationale
of this Court’s legal analysis and its conclusion that Section
2255 was not an “inadequate or ineffective” remedy to address
Petitioner’s
challenges
to
enhancement
sentence).
Page -1-
of
his
federal
2.
On September 6, 2011, Petitioner filed his notice of appeal.
See Docket Entry No. 3.
are currently underway.
3.
Petitioner’s appellate proceedings
See Docket Entries Nos. 4-6.
On October 5, 2011, Petitioner filed his instant “Appellant’s
Memorandum In Opposition to Summary Judgment,” see Docket
Entry No. 7, which this Court construes as Petitioner’s motion
for reconsideration (“Motion”).
In his Motion, Petitioner
argues that this Court erred in dismissing the Petition for
lack of jurisdiction because: (a) Petitioner is of opinion
that
he
is
“actually
innocent”;
and
(b)
presenting this Court with “new evidence.”
Petitioner
See id.
is
None of
these assertions were made in the original Petition.
See,
generally, Docket Entry No. 1.
4.
With regard to his newly-minted “actual innocence” position,
Petitioner: (a) readily concedes that he, indeed, committed
the federal crime for which he was convicted by the District
of Indiana and also committed the state offence relied upon by
the District of Indiana for the purposes of enhancing his
federal sentence; but (b) maintains that, since Petitioner
believes that the District of Indiana erroneously relied on
his state offence for the purposes of enhancing his federal
sentence, Petitioner should be deemed “actually innocent” of
the enhancement element underlying his federal sentence.
5.
Analogously, with regard to his newly-minted “new evidence”
Page -2-
position, Petitioner maintains that he offers this Court “new
evidence” because the legal precedent allegedly contradicting
the enhancement ruling reached by the District of Indiana was
entered
after
Petitioner’s
Section
2255
challenges
were
dismissed by his federal sentencing court; in other words,
Petitioner maintains that he found out about his alleged
“actual-innocence-for-the-purposes-of-sentence-enhancement”
when he already could not raise this challenge by means of
Section 2255 motion.
6.
At
the
outset
of
its
discussion
of
Petitioner's
latest
assertions, the Court note that Petitioner's current Motion is
untimely1 and, in addition, under Venen v. Sweet, 758 F.2d
117, 120 (3d Cir. 1985), presented to this Court after the
Court lost its jurisdiction over this Matter.
"[T]he timely
filing of a notice of appeal is an event of jurisdictional
significance, immediately conferring jurisdiction on a Court
of Appeals and divesting a district court of its control over
1
The Local Rules provide that, unless otherwise provided by
statute or rule (such as Fed. R. Civ. P. 50, 52 and 59), a motion
for reconsideration shall be served and filed within 14 days
after the entry of the order or judgment on the original motion.
See Local Civ. R. 7.1(i). The purpose of a motion for
reconsideration is to correct manifest errors of law or fact or
to present newly discovered evidence. See Holland v. Holt, 2010
U.S. App. LEXIS 25168 (3d Cir. Dec. 9, 2010) (citing Max's
Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999)). In this case, Plaintiff's Motion is untimely, as
the face of the Motion does not show that it was handed to prison
officials for mailing to the Clerk within 15 days after entry of
the Court's order dismissing the Petition.
Page -3-
those aspects of the case involved in the appeal."
Id.
Therefore, technically, this Court is without jurisdiction to
address Petitioner's challenges raised in his Motion until the
Court of Appeals stays Petitioner's appellate proceedings and
remand Petitioner's claims to this Court for disposition of
his newly-minted challenges. However, recognizing Petitioner's
interests in a speedy resolution of his challenges, as well as
being mindful of the Court of Appeals' interest in processing
appellate cases in an expedited fashion, the Court finds that
the interests of judicial economy warrant this Court's entry
of its decision as to Petitioner's current Motion. The Court,
therefore, will excuse Petitioner's delay in filing his Motion
and will grant Petitioner's request to the extent that it
would address the merits of Petitioner's Motion instead of
simply dismissing it for lack of jurisdiction.2
7.
A motion for reconsideration is a device of limited utility.
There
are
only
four
grounds
2
upon
which
a
motion
for
The Court of Appeals guided that a litigant's motion for
reconsideration should be deemed "granted" when the court (the
decision of which the litigant is seeking a reconsideration of)
addresses the merits — rather than the mere procedural propriety
or lack thereof- of that motion. See Pena-Ruiz v. Solorzano, 281
Fed. App'x 110 at *2-3, n.1 (3d Cir. 2008). However, the fact of
the court's review does not prevent the court performing such
reconsideration analysis (of the original application, as
supplanted by the points raised in motion for reconsideration)
from reaching a disposition identical — either in its rationale
or in its outcome, or in both regards — to the court's decision
previously reached upon examination of the original application.
See id.
Page -4-
reconsideration might be granted: (a) to correct manifest
errors of law or fact upon which the judgment was based; (b)
to
present
newly-discovered
or
previously
unavailable
evidence; (c) to prevent manifest injustice;3 and (d) to
accord the decision to an intervening change in prevailing
law.
See 11 Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995);
see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985), cert. denied, 476 U.S. 1171 (1986) (purpose of motion
for reconsideration is to correct manifest errors of law or
fact or to present newly discovered evidence).
"To support
reargument, a moving party must show that dispositive factual
matters or controlling decisions of law were overlooked by the
court in reaching its prior decision."
Assisted Living
Associates of Moorestown, L.L.C., v. Moorestown Tp., 996 F.
Supp. 409, 442 (D.N.J. 1998).
In contrast, mere disagreement
3
In the context of a motion to reconsider, the term
"manifest injustice" "[generally . . . means that the Court
overlooked some dispositive factual or legal matter that was
presented to it," In re Rose, 2007 U.S. Dist. LEXIS 64622, at *3
(D.N.J. Aug. 30, 2007), making the definition an overlap with the
prime basis for reconsideration articulated in Harsco, that is,
the need "to correct manifest errors of law or fact upon which
the judgment was based." Alternatively, the term "manifest
injustice" could be defined as "'an error in the trial court that
is direct, obvious, and observable.'" Tenn. Prot. & Advocacy,
Inc. v. Wells, 371 F.3d 342, 348 (6th Cir. 2004) (quoting Black's
Law Dictionary 974 (7th ed. 1999)). "[M]ost cases [therefore,]
use the term 'manifest injustice' to describe the result of a
plain error." Douglass v. United Services Auto. Ass'n, 79 F.3d
1415, 1425 (5th Cir. 1996).
Page -5-
with the district court's decision is an inappropriate ground
for a motion for reconsideration: such disagreement should be
raised
through
the
appellate
process.
See
id.
(citing
Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834,
859 n.8 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994);
G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)); see also
Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001)
(a motion for reconsideration may not be used as a means to
reargue unsuccessful theories).
will
only
entertain
such
a
Consequently, "[t]he Court
motion
where
the
overlooked
matters, if considered by the Court, might reasonably have
resulted in a different conclusion."
Assisted Living, 996 F.
Supp. at 442; see also Continental Cas. Co. v. Diversified
Indus.,
Inc.,
884
F.
Supp.
937,
943
(E.D.
Pa.
1995)
("[M]otions for reconsideration should be granted sparingly");
Edward H. Bohlin, Co. v. Banning Co., Inc., 6 F.3d 350, 355
(5th Cir. 1993) (a district court "has considerable discretion
in deciding whether to reopen a case under Rule 59(e)").
8.
Here,
Petitioner's
Motion
asserts
that
Petitioner
is
presenting this Court with "newly discovered" evidence.
However, the legal precedent upon which Petitioner relies,
Begay v. United States, 553 U.S. 137, was entered in 2008,
that is, three years prior to Petitioner's filing of his
Petition and was, indeed, raised in the Petition.
Page -6-
Therefore,
Petitioner's Motion cannot be granted on the basis of his
presentment of new and previously unavailable evidence.
9.
However, the invalidity of Petitioner's Motion does not turn
on this aspect. Rather, it ensues from Petitioner's erroneous
position that this Court has Section 2241 jurisdiction to
address the Petition's challenges because Petitioner believes
that
he is
"actually
innocent"
for
the
purposes
of
the
enhancement aspect of his federal sentence.
10.
A claim of "actual innocence" relates to innocence in fact,
not
innocence
based
on
a
legal,
procedural
defect.4
A
petitioner asserting "actual innocence" must present evidence
of innocence so compelling that it undermines the court's
confidence in the trial's outcome of his/her conviction; only
that innocence permits him/her to argue the merits of his/her
claim.
Therefore, a claim of actual innocence requires the
petitioner to show: (a) new reliable evidence not available
4
Before the AEDPA, the Supreme Court held that a petitioner
otherwise barred from filing a successive § 2255 motion "may have
his federal constitutional claim considered on the merits if he
makes a proper showing of actual innocence." Herrera v. Collins,
506 U.S. 390, 404 (1993). This rule, the fundamental miscarriage
of justice exception, is only granted in extraordinary
situations, such as where it is shown that the constitutional
violations probably resulted in the conviction of one who is
actually innocent. See id.; McCleskey v. Zant, 499 U.S. 467, 494
(1991). The "claim of actual innocence is not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits." Herrera, 506
U.S. at 404.
Page -7-
for presentation at the time of the challenged trial; and (b)
that it is more likely than not that no reasonable juror would
have
convicted
evidence.
the
petitioner
in
the
light
of
the
new
See House v. Bell, 547 U.S. 518 (2006); Schlup v.
Delo, 513 U.S. 298, 324, 327 (1995).
In other words, the
petitioner must present evidence suggesting that (s)he did not
commit the offence for which (s)he was convicted: that is why
the Supreme Court, in House, emphasized that the gateway
standard
for
innocence
is
habeas
review
demanding
"extraordinary" case.
and
in
claims
permits
asserting
review
only
actual
in
the
See House, 126 S. Ct. at 2077 (citing
Schlup, 513 U.S. at 327).
Simply put, the "actual innocence"
theory does not concern itself with the niceties of shorter or
longer sentences, or analogous technicalities: rather, it
focuses on ensuring that the person who is wholly innocent of
the crime would not be left unduly incarcerated without a
remedy, in the event that person obtains proof that (s)he did
not commit the offense for which (s)he is being incarcerated.5
5
For instance, in House v. Bell, 547 U.S. 518, the inmate
asserted that new evidence conclusively established that semen on
the rape-and-murder victim's clothes was that of the victim's
husband and indicated that bloodstains on his clothes resulted
from spillage from samples of the victim's blood and that the
victim's husband was the likely murderer. The Supreme Court held
that, while there was no showing of conclusive exoneration,
consideration of the inmate's claims was warranted since it was
more likely than not that no reasonable juror viewing the record
in light of this new evidence would lack reasonable doubt as to
the inmate's innocence of his rape and murder conviction,
Page -8-
11.
Here, Petitioner does not assert any innocence in fact; on the
contrary, he readily concedes that he committed the offence
underlying
his
District
of
Indiana
conviction
and
also
committed the offense underlying his state conviction (which
was relied upon by the District of Indiana for the purposes of
enhancement of Petitioner's federal sentence).
Therefore,
Petitioner is not "actually innocent" within the meaning of
governing law, and his reliance on the finesse of sentencing
regime annunciated in Begay has no relevance to -- and, thus,
cannot qualify as "new evidence" of -- his alleged "actual
innocence," which is facially lacking here.
See Perez v.
Samuels, 2007 U.S. Dist. LEXIS 43084 (D.N.J. June 8, 2007)
(dismissing a substantively indistinguishable position where
a federal inmate conceded that he committed the offense he was
convicted of but asserted that he was entitled to litigate his
sentence enhancement claims under § 2241 because of his belief
that
was
"actually
innocent"
for
the
purposes
of
the
enhancement element of his federal sentence), aff'd, 256 Fed.
App'x 443 (3d Cir. 2007).
12.
Since Petitioner's newly-minted legal position is facially
without merit, his Motion cannot warrant reconsideration of
this
Court's prior
determination.
Correspondingly,
this
especially granted the newly-discovered testimony that the
husband confessed to the crime and regularly abused the victim.
Page -9-
Court's prior decision will remain in force.
As this Court
already explained to Petitioner in its prior opinion,
All [what Petitioner] asserts is that his federal
sentence was erroneously enhanced.
This Court,
however, has no § 2241 jurisdiction to second guess
the decision of Petitioner’s federal sentencing
court: that has been established time and again in
this Circuit. See, e.g., Rhines v. Holt, 2011 U.S.
App. LEXIS 13606 (3d Cir. June 30, 2011) (affirming
dismissal
of
§
2241
petition
on
want
of
jurisdiction grounds where the petitioner – as
Petitioner here – asserted that he was “actually
innocent” of the sentence enhancement applied to
him); United States v. McKeithan, 2011 U.S. App.
LEXIS 11710 (3d Cir. June 8, 2011) (same); Delgado
v. Zickefoos, 2011 U.S. App. LEXIS 11468 (3d Cir.
June 7, 2011) (same, addressing a § 2241 petition
substantively indistinguishable from the Petition
at bar); Florez-Montano v. Scism, 2011 U.S. App.
LEXIS 11308 (3d Cir. June 2, 2011) (same); Edmonds
v. United States, 2011 U.S. App. LEXIS 9988 (3d
Cir. N.J. May 16, 2011) (same).
Moreover,
addressing § 2241 sentence-enhancement challenges
based expressly on the holding of Begay, the Court
of Appeals unambiguously concluded that such
challenges are
insufficient [to invoke] § 2241. § 2255; see
also Cradle v. United States, 290 F.3d 536,
538-39 (3d Cir. 2002). In Dorsainvil we held
that § 2241 can be used to challenge a
conviction for a crime that was negated by an
intervening change in the law. [See] 119 F.3d
at 249. But such relief is available only in
“rare
situations”
where
the
crime
of
conviction was later deemed non-criminal.
[See] Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002).
Section 2241 is not
available for intervening changes in the
sentencing law. Id. For example, we did not
allow Okereke to proceed under § 2241 because
his argument was based on “Apprendi [which]
dealt with sentencing and did not render . . .
the crime for which Okereke was convicted, not
criminal.” Id. at 120. 2
Page -10-
United States v. Kenney, 391 Fed. App’x 169, 172 (3d Cir.
2010) (emphasis supplied, footnote omitted).
Docket Entry No. 2, at 9-11 (emphasis in original).
statement
No
made in Petitioner's instant Motion alters the
above-quoted analysis.
IT IS, therefore, on this
18th
day of
October
, 2011,
ORDERED that the Clerk shall reopen this matter for the
purposes of the Court's examination of Petitioner's motion for
reconsideration, Docket Entry No. 7, by making a new and separate
entry on the docket reading, "CIVIL CASE REOPENED"; and it is
further
ORDERED that Petitioner's motion for reconsideration is granted
in
form
and
denied
in
substance,
and
this
Court's
prior
determination as to Petitioner's challenges shall remain in force,
and
these
challenges
shall
remain
dismissed
for
lack
of
jurisdiction; and it is further
ORDERED that the Clerk shall close this matter by making a new
and separate entry on the docket reading, "CIVIL CASE CLOSED"; and
it is further
ORDERED that this Court expressly withdraws its jurisdiction
over this action; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion and
Order upon Petitioner by regular U.S. mail; and it is finally
ORDERED that the Clerk shall serve a copy of this Memorandum
Page -11-
Opinion and Order upon the Clerk of the Court for the United States
Court of Appeals for the Third Circuit, accompanying such service
with a notation reading, "SERVED IN CONNECTION WITH BROWN V.
ZICKEFOOSE, USCA NUMBER 11-3431. SERVICE EXECUTED FOR INFORMATIONAL
PURPOSES ONLY."
s/Robert B. Kugler
Robert B. Kugler,
United States District Judge
Page -12-
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