GILBERT v. UNITED STATES OF AMERICA

Filing 19

MEMORANDUM ORDER granting Petitioner's 17 motion for an extension of time within which to file his reply brief; directing Petitioner to file his reply brief w/in 30 days, etc. Signed by Judge Noel L. Hillman on 1/13/2016. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEFFREY KEARNS GILBERT,

Civil Action No. 14-243 (NLH)

Petitioner,
v.

MEMORANDUM ORDER

UNITED STATES OF AMERICA,
Respondent.

IT APPEARING THAT:
1.

Petitioner, Jeffrey Kearns Gilbert, filed his motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255 on or about January 14, 2014.
2.

(ECF No. 1).

On April 16, 2014, Judge Irenas entered an order advising

Petitioner of his rights under United States v. Miller, 197 F.3d
644 (3d Cir. 1999).
3.

Petitioner responded to that order on May 30, 2014, with

a letter in which he stated that although he wished only to raise
the issues contained in his initial motion, Petitioner intended to
submit an appendix of exhibits and an affidavit in support of his
motion within thirty days, and “assorted motions and documentation
in support of the motions[,] additional affidavits[,] and other
documentation and evidence as I obtain it.”

(ECF No. 4).

4. On June 27, 2014, the Government submitted a letter noting
that Petitioner had still not filed a brief in support of his
petition.

(ECF No. 5).

The Government further informed the Court

that Petitioner had previously lost his right to appeal due to his
multiple failures to follow the page limits and other restrictions
placed on briefs before the Court of Appeals as Petitioner had
repeatedly attempted to file briefs that were several hundred pages
in length.
requested

(Id.).
that

this

Because of this history, the Government
Court

provide

a

firm

deadline

by

which

Petitioner was to file his brief in support and to set firm page
limits for any brief filed in this matter.
5.

(Id. at 2).

Following receipt of the letter on June 27, Judge Irenas

entered an order that same day directing the Government to answer
the motion within forty-five days.

(ECF No. 7).

That order also

provided that Petitioner would be permitted to file a reply brief
within forty-five days of the date of the filing of the answer.
(Id. at 2).

Finally, the order placed the following restriction

on both parties: “all briefs submitted in this case shall be
limited to 40 ordinary typed or printed pages and subject to the
formatting requirements of Local Civil Rule 7.2.”
6.

(Id.).

Following several extensions, the Government filed a

letter on August 19, 2015, noting that the answer was ready for
filing, but was then forty-six pages long.

(ECF No. 11).

The

Government therefore requested a slight variance permitting it to
file a slightly over-length brief.

(Id.).

This Court granted

that request on August 24, 2015, but limited the length of the

Government’s brief to a maximum of forty-seven pages.

(ECF No.

12).
7.

The Government filed its answer on August 31, 2015, and

Petitioner’s reply was initially due on October 15, 2015.

(ECF

No. 13).
8.

On October 22, 2015, Petitioner filed a letter in which

he requested an extension of time through December 31, 2015, for
the filing of his reply brief because of various constraints on
his time and other difficulties.
9.

(ECF No. 14).

This Court granted that order on November 2, 2015, over

the Government’s objection.

(ECF No. 15).

10. On December 31, 2015, Petitioner submitted another letter
requesting an extension of time within which to file his reply
brief.

(ECF No. 17).

In his letter, Petitioner argued that

because of the complexity of his criminal case and the extensive
documentation involved, he would need additional time to complete
his reply.

(Id. at 1-3).

Petitioner’s letter also argued that

the limitations on his briefing – that he could file only a single
reply brief not to exceed forty pages – placed great constraints
on him, and noted that he intended to include in his reply
additional

factual

support

for

his

claims.

(Id.

at

4-5).

Petitioner therefore also requested that the page limitations be
lifted and a potential new round of briefing commence after the
filing of the reply.

(Id. at 6-7).

11.

On January 12, 2016, the Government submitted opposition

to Petitioner’s request for a further extension of time.
18).

(ECF No.

In that opposition, the Government argued that Petitioner

should not be permitted to raise new facts and claims in his reply
brief not already presented in his original motion and that no
further

extension

Government

also

should

clearly

be

permitted.

expressed

(Id.

opposition

at
to

suggestion of further rounds of briefing or the like.

1-3).

The

Petitioner’s
(Id. at 2-

3).
12.

Given the history and complexity of this matter, as well

as the numerous extensions provided to the Government in the filing
of the answer, this Court finds that Petitioner has shown good
cause why a further extension should be provided, and thus will
grant Petitioner’s request for an extension of time.
13.

Given that same history, including Petitioner’s filing

of numerous exceedingly over length briefs before the Court of
Appeals, however, this Court will not lift the page limitations
placed upon Petitioner by Judge Irenas. Petitioner shall therefore
be permitted to file a single reply brief which shall not exceed
forty typed or printed pages in compliance with the requirements
of Local Civil Rule 7.2.
14.

Finally, this Court notes that Petitioner is permitted

to submit a reply brief.

“It is axiomatic that reply briefs should

respond to the respondent’s arguments or explain a position in the

initial brief that the respondent has refuted.”

Elizabethtown

Water Co. v. Hartford Cas. Ins. Co., 998 F. Supp. 447, 458 (D.N.J.
1998); see also Jurista v. Amerinox Processing, Inc., 492 B.R.
707, 779-80 (D.N.J. 2013).

“[N]ew arguments cannot be raised for

the first time in reply briefs.”
(citing

Elizabethtown

Petitioner’s

reply

Water

brief

Jurista, 492 B.R. at 779-80

Co.,

should

998

thus

F.

either

Supp.

At

respond

458).
to

the

arguments of the Government or explain points refuted by the
Government’s answer, and should not contain new claims raised for
the first time within the reply brief itself.

Should Petitioner

choose to attempt to raise new arguments for the first time in his
reply brief, this Court would be free to refuse to address those
new arguments.

See, e.g., Judge v. United States, --- F. Supp. 3d

---, ---, 2015 WL 4742380, at *6 (D.N.J. 2015).
IT IS THEREFORE, on this 13th day of January, 2016,
ORDERED that Petitioner’s motion for an extension of time
within which to file his reply brief (ECF No. 17) is hereby
GRANTED; and it is further
ORDERED that Petitioner shall file his reply brief within
thirty (30) days of the date of this Order; and it is further
ORDERED that no further extensions shall be given; and it is
further

ORDERED that Petitioner’s reply shall not exceed forty (40)
pages and shall follow the formatting requirements of Local Civil
Rule 7.2; and it is further
ORDERED that Petitioner’s reply brief shall comply with the
applicable rules regarding the purpose and nature of replies, see
Elizabethtown Water Co., 998 F. Supp. At 458; Jurista; 492 B.R. at
779-80; and it is finally
ORDERED that the Clerk of the Court shall serve this Order
upon Respondents electronically and upon Petitioner by regular
mail.

s/ Noel L. Hillman
Hon. Noel L. Hillman,
United States District Judge
At Camden, New Jersey