D'AMARIO v. SHARTLE
Filing
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OPINION. Signed by Judge Robert B. Kugler on 10/31/2014. (drw)N.M.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
ARTHUR D’AMARIO, III,
:
:
Petitioner,
:
Civ. No. 13-4314 (RBK)
:
v.
:
OPINION
:
J.T. SHARTLE,
:
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUDCTION
Petitioner is a federal prisoner currently incarcerated at the United States Penitentiary in
Tucson, Arizona, but was previously incarcerated at F.C.I. Fairton in Fairton, New Jersey when
he filed this action. Petitioner is proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Presently before the Court is petitioner’s motion for partial relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b)(2). For the following reasons,
the motion will be denied.
II.
BACKGROUND
The Court previously outlined the factual background of this case in denying petitioner’s
habeas petition on March 18, 2014. Most relevant to the instant motion, however, petitioner
argued in his habeas petition that he was entitled to twenty-seven days additional days of jail
time credits on his federal sentence that the Federal Bureau of Prisons was not awarding him
from March 1, 2013 until March 28, 2013. 1
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Petitioner raised other issues in his habeas petition that are not relevant to deciding his pending
Rule 60(b)(2) motion.
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On March 18, 2014, the Court denied the habeas petition in full. With respect to
petitioner’s claim seeking additional jail time credits, the Court first noted that petitioner had
failed to exhaust his administrative remedies. The Court noted that petitioner’s intermediate and
highest level administrative level appeals were rejected as untimely and petitioner brought forth
no evidence to suggest that those appeals were timely. Thus, the Court found that this claim was
unexhausted as petitioner failed to comply with the procedural requirements of the administrative
remedy process. (See Dkt. No. 14 at p. 4 (citing Valles v. Scism, 435 F. App’x 98, 98 (3d Cir.
2011) (per curiam); Beckford v. Martinez, 408 F. App’x 518, 520 (3d Cir. 2010) (per curiam)).)
The Court also stated that even if petitioner had properly exhausted his administrative remedies,
his claim could be denied on the merits. The Court determined that petitioner was being held by
Canadian immigration authorities for purposes of deportation from March 2, 2013 until March
28, 2013. This meant that he was not under “official detention” to award him jail time credits on
his federal sentence for this period. (See Dkt. No. 14 at p. 6-8.)
Petitioner filed a notice of appeal from the March 18, 2014 Opinion and Order that
denied his habeas petition. The United States Court of Appeals for the Third Circuit summarily
affirmed this Court’s March 18, 2014 Opinion and Order on October 2, 2014. See D’Amario v.
Warden Fairton FCI, No. 14-1736, 2014 WL 4922340 (3d Cir. Oct. 2, 2014) (per curiam). Prior
to that affirmance, on September 15, 2014, this Court received petitioner’s motion for partial
relief from judgment pursuant to Rule 60(b)(2). (See Dkt. No. 18.) In the motion, petitioner
argues that he is entitled to twenty-three days of jail time credits as he was under U.S. Marshals
custody from March 5, 2013 until March 28, 2013. In support of his motion, petitioner attaches
a “Report of Investigation” form from the United States Marshals Service dated April 22, 2013.
The report states as follows:
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On 03/13/2013, members of the NYRT were notified of a Arthur
Damario that was being held by customs and border protection at
the Rainbow Bridge in Niagara Falls, NY. Damario was being
held on a U.S. Marshals warrant for federal supervised release
violations. On 03/13/2013, members of the NYRT arrested
Damario, without incident, and transported him to the Buffalo
courthouse for arraignment.
(Dkt. No. 18 at p. 5.) Based on this newly discovered document, petitioner argues that he is
entitled to jail time credits as he was in “official detention” for a period of time prior to the
March 28, 2013 date that the Federal Bureau of Prisons is using to calculate his federal sentence.
III.
DISCUSSION
A. Rule 60(b)(2) Standard
Federal Rule of Civil Procedure 60(b)(2) provides that the court may relieve a party from
a final judgment or order for “newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule 59(b).” The standard for
granting relief under Rule 60(b)(2) for newly discovered evidence is the same as under Rule 59.
See Colyer v. Consol. Rail Corp., 114 F. App’x 473, 480 (3d Cir. 2004) (citing Compass Tech.,
Inc. v. Tseng Labs, Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)). “Newly discovered evidence can
justify a new trial ‘only if such evidence (1) is material and not merely cumulative, (2) could not
have been discovered prior to trial through the exercise of reasonable diligence, and (3) would
probably have changed the outcome of the trial.’” Id. (citing Bohus v. Beloff, 950 F.2d 919, 930
(3d Cir. 1991)) (emphasis in original). “The party seeking a new trial ‘bears a heavy burden’
since relief “should be granted only where extraordinary justifying circumstances are present.’”
Id. (citing Bohus, 950 F.2d at 930).
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B. Analysis
For purposes of deciding this motion, the Court will assume arguendo that the evidence
petitioner has provided the Court is material and not cumulative and could not have been
discovered prior to the Court’s denial of his habeas petition through the exercise of due
diligence. However, petitioner has failed to show that the document would have changed the
Court’s decision on this claim. Certainly, on its face, the U.S. Marshals’ report places some
doubt with respect to what type of detention petitioner was under prior to March 28, 2013. In the
March 18, 2014 Opinion, the Court relied on the fact that Canadian officials had stated that
petitioner was in their custody for immigration purposes only from March 2, 2013 until March
28, 2013. (See Dkt. No. 14 at p. 6-7 (citing Dkt. No. 7-6 at p. 10).) However, the Marshals’
report attached to petitioner’s Rule 60(b)(2) motion appears to indicate that petitioner was
arrested by the U.S. Marshals on March 13, 2013, not March 28, 2013 as stated in the prior
Opinion. Thus, the Court recognizes a potential contradiction with respect to petitioner’s
custody status prior to March 28, 2013.
If the Court solely denied petitioner’s claim on the merits, then perhaps petitioner would
be entitled to relief (or, at a minimum, at least have the respondent file a response to his Rule
60(b)(2) motion). However, the Court also denied petitioner’s claim because he failed to exhaust
his administrative remedies. Petitioner’s Rule 60(b)(2) motion is devoid of any argument for
why the Court should excuse this failure to exhaust. Indeed, the Third Circuit recently
determined that this Court had properly held that petitioner failed to exhaust this claim. See
D’Amario, 2014 WL 4922340, at *1. Accordingly, petitioner’s motion will be denied as his
Rule 60(b)(2) motion does not show why the Court should excuse petitioner’s failure to exhaust
his administrative remedies on his claim for additional jail time credits.
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IV.
CONCLUSION
For the foregoing reasons, petitioner’s motion for partial relief from judgment will be
denied. An appropriate order will be entered.
DATED: October 31, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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