GILBERT v. UNITED STATES OF AMERICA

Filing 34

OPINION. Signed by Judge Noel L. Hillman on 7/28/2016. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JEFFREY KEARNS GILBERT,

Civil Action No. 14-243 (NLH)

Petitioner,
v.

OPINION

UNITED STATES OF AMERICA,
Respondent.

APPEARANCES:
JEFFREY KEARNS GILBERT
4-L-A Arbor Green
275 Green Street
Edgewater Park, NJ 08010
Petitioner, Pro Se
HOWARD JOSHUA WIENER, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
401 Market Street
4th Floor
Camden, NJ 08101
Attorneys for the United States of America

Hillman, District Judge:
Currently before the Court is the motion of Petitioner,
Jeffrey Kearns Gilbert, for reconsideration of this Court’s
order and opinion denying his motion to vacate his sentence (ECF
No. 24), and his accompanying motions asking this Court to
accept his untimely and over-length reply brief after this Court
has issued its final decision in this matter

(ECF Nos. 25-26).

For the following reasons, this Court will deny Petitioner’s

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motion for reconsideration, and as such will in turn deny
Petitioner’s motion asking this Court to accept his untimely and
over-length reply brief.

I.

BACKGROUND
In the opinion denying Petitioner’s § 2255 motion, this

Court provided the following summary of the procedural history
in this matter:
Petitioner . . . filed his motion to
vacate his sentence on or about January 14,
2014.
(ECF No. 1).
Judge Irenas, who was
originally assigned to this matter, entered an
order advising Petitioner of his rights under
United States v. Miller, 197 F.3d 644 (3d Cir.
1999), on April 16, 2014. (ECF No. 3). In
his response, Petitioner stated that his
original petition set forth all of his claims,
but
noted
that
Petitioner
intended
to
incrementally file various briefs in support
of his motion, starting with an affidavit and
appendix of exhibits to be filed on or before
June 30, 2014.
(ECF No. 4).
After the
Government opposed Petitioner’s intention to
incrementally file his supporting brief, Judge
Irenas entered an Order on June 27, 2014,
requiring the Government to file an answer to
the motion within forty-five days, permitting
Petitioner to file a single reply brief, and
limiting all briefs in this matter to “40
ordinary typed or printed pages.”
(ECF No.
7).
In a letter accompanying that order,
Judge Irenas explained to both Petitioner and
the Government that the rules applicable to §
2255 motions would not permit Petitioner to
incrementally file his supporting documents,
and that Petitioner’s request to do so was
“specifically denied.” (ECF No. 6).

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Following numerous extensions and a
request to file a brief not to exceed 47 pages
which Judge Irenas granted, the Government
filed its answer on August 31, 2015. (ECF No.
13).
Petitioner thereafter filed a motion
requesting additional time to file his reply
brief, which this Court granted, permitting
Plaintiff to file his brief on or before
December 31, 2015. (See ECF Nos. 14-15). On
January 4, 2016, Petitioner filed a letter
requesting that this Court relax Judge
Irenas’s restrictions as to the page limit of
Petitioner’s
reply
brief
and
requesting
another extension of time. (ECF No. 17). The
Government opposed that motion. (ECF No. 18).
On January 13, 2016, this Court entered an
Order denying Petitioner’s request to relax
the page limit restrictions, and granting
Petitioner permission to file his reply brief
within thirty days. (ECF No. 19). In that
Order, this Court also specifically advised
Petitioner that he was to file a reply brief
and that Petitioner would be provided with no
further extensions.
(Id.).
Despite that
order, Petitioner filed two further letters
requesting extensions on January 29 and
February 18, 2016. (ECF Nos. 20-21).
(ECF No. 22 at 6-7).
On April 28, 2016, this Court issued an order and opinion
denying Petitioner’s motion to vacate sentence as Petitioner’s
non-ineffective assistance of counsel claims were procedurally
defaulted and Petitioner had not shown cause and prejudice for
the default, nor established his actual innocence, and because
Petitioner had provided no factual support for his allegations
that he suffered ineffective assistance of counsel, and had thus
provided no factual allegations sufficient to support a finding
of prejudice.

(Id. at 8-22).

This Court also denied Petitioner
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a certificate of appealability in that Order and Opinion (ECF
No. 22, 23).

Nearly a month after the issuance of the Order and

Opinion, Petitioner filed with this Court a motion for
reconsideration accompanied by his over-length and untimely
reply brief, as well as several hundred pages of exhibits
Petitioner has not previously filed.

(ECF Nos. 24-33).

In

support of his motion for reconsideration, Petitioner asserts
that he has spent many hours and thousands of dollars preparing
his reply and accompanying exhibits and had to redraft his brief
several times to meet this Court’s page limitations.
24 at 1-4).

(ECF No.

Petitioner also asserts in his motion that he spoke

with court staff on a few occasions after this Court’s final
extension order and was told that the Court “[wa]s inclined to
give [Petitioner] more time” to file his reply.

(Id. at 4).

Petitioner thus asserts that this Court should grant his motion
because his late reply amounts to new evidence, because he was
allegedly misled by court staff, and because it would be unfair
to deny him consideration of his reply because he attempts to
raise a claim of actual innocence.

II.
A.

DISCUSSION
Legal Standard
Because Petitioner seeks reconsideration of a final order

of this Court, his motion for reconsideration arises under
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Federal Rule of Civil Procedure 59(e).

The scope of a Rule

59(e) motion for reconsideration is extremely limited.
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).

See

A Rule

59(e) motion may not be used to relitigate every facet of a
case, but rather may be used “only to correct manifest errors of
law or fact or to present newly discovered evidence.”

Id.

“‘Accordingly, a judgment may be altered or amended [only] if
the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling
law; (2) the availability of new evidence that was not available
when the court [decided the motion], or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice.’”
Id. (quoting Howard Hess Dental Labs., Inc. v. Dentsply Int’l
Inc., 602 F.2d 237, 251 (3d Cir. 2010)).

In the context of such

a motion, manifest injustice “generally . . . means that the
Court overlooked some dispositive factual or legal matter that
was presented to it,” or that a “direct, obvious, and
observable” error occurred. See Brown v. Zickefoose, Civil
Action No. 11-3330, 2011 WL 5007829, at *2, n. 3 (D.N.J. 2011).
As to claims based on allegedly new evidence, “‘new
evidence,’ for reconsideration purposes, does not refer to
evidence that a party . . . submits to the court after an
adverse ruling.

Rather, new evidence in this context means

evidence that a party could not earlier submit to the court
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because that evidence was not previously available.”

Blystone,

664 F.3d at 415 (quoting Howard Hess Dental Labs, 602 F.3d at
252).

Evidence which does not meet this definition of “new

evidence” “cannot provide the basis for a successful motion for
reconsideration.”
B.

Id.

Analysis
Petitioner essentially asserts two bases for

reconsideration: that this Court should consider his reply brief
and attached exhibits either as new evidence or in the interests
of fairness, or that this Court should consider his late
documents because he was allegedly misled by court staff.
Initially, this Court must note that Petitioner has presented no
evidence that any of the information contained in his reply and
attached exhibits is in any way “new evidence” in so much as he
could have presented any and all of this information previously,
but did not do so until after this Court decided his motion to
vacate. See Blystone, 664 F.3d at 415.

That this information

was not presented until after this Court denied the motion to
vacate does not make it “new” evidence. Id.

Because nothing in

Petitioner’s proposed reply brief actually qualifies as new
evidence Petitioner’s motion for reconsideration essentially
rises and falls with his assertion that this Court erred in
deciding this matter without considering his untimely reply.

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Petitioner’s argument that this Court’s denial of his §
2255 is erroneous in the absence of consideration of his reply
is incorrect.

“A traverse or reply brief . . . is not a

required pleading in the § 2255 context. See Rule 5(d) of the
Rules Governing Section 2255 Cases; see also Irizarry v. United
States, Civil Action No. 12–656, 2012 WL 5494806, at *3 (E.D.Pa.
Nov.13, 2012).” Battle v. United States, Civil Action No. 132024, 2015 WL 3991167, at *4 (D.N.J. June 30, 2015).

As a

result, “it does not amount to legal error for a District Court
to decide a § 2255 motion in the absence of a reply brief where
that reply is not received by the deciding court until after it
makes its ruling.” Id.; see also Irizarry, 2012 WL 5494806 at
*3.
Here, Petitioner’s reply brief was originally due in the
fall of 2015.

This Court, however, granted Petitioner an

additional three months to file his reply brief, giving him
until the end of December 2015 to file the brief.

(ECF No. 16).

After Petitioner failed to meet that extended deadline,
Petitioner again requested an extension of time to file that
brief.

(ECF No. 17).

Although this Court granted that

extension and gave petitioner thirty days to file his reply
brief on January 13, 2016, in that same order this Court
specifically informed Petitioner that “no further extensions
shall be given.” (ECF No. 19 at 6).
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Petitioner was thus

required to file his reply, if he wished to do so in a timely
fashion, by February 12, 2016.

Petitioner failed to do so, and

this Court ultimately decided Petitioner’s motion to vacate two
months later on April 28, 2016. (ECF Nos. 22-23).

Even after

that occurred, Petitioner did not file his purported reply for
nearly another month, filing his motions and reply on May 24,
2016. (ECF Nos. 24-31).
Given these facts, Petitioner clearly failed to file his
reply brief within the time allotted by this Court, and nothing
in the record suggests that this Court at any time lifted its
Order directing that Petitioner would be granted no further
extensions beyond February 12, 2016.

Because Petitioner failed

to file his reply within the timeline set by this Court’s prior
orders, and because a reply brief is not a required document in
the § 2255 context, this Court did not err in deciding
Petitioner’s § 2255 motion prior to the filing of a reply brief
that may otherwise not have been filed for several months.
Battle, Civil Action 2015 WL 3991167 at *4.
This is especially true in Petitioner’s case given his long
history of failing to timely file briefs, such that the Third
Circuit actually dismissed his direct appeal for failure to
prosecute after repeated failures to file compliant briefs.
Thus, this Court’s ruling does not amount to legal error merely

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because it did not consider a later reply brief that was not
required.
An additional issue arises out of the fact that
Petitioner’s reply brief raises numerous factual issues and
provides significant amounts of legal argument that were not
truly presented in his initial § 2255 motion, or were presented
in that motion in only a barebones fashion.

As this Court

explained to Plaintiff in its January 13, 2016, Order, “‘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.’ Jurista, 492 B.R. at 779-80 (citing
Elizabethtown Water Co., 998 F. Supp. At 458).”
The reason for such a rule is clear: it would be
fundamentally unfair to the Government to permit Petitioner to
provide the true bases for his claims after the Government has
used its only opportunity to respond by answering the barebones
motion Petitioner previously filed.

Because Petitioner’s reply

is largely made up of arguments and alleged facts which were not
previously raised in Petitioner’s § 2255 motion, this Court
would be well within the bounds of propriety to refuse to
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consider the arguments contained in the reply for that reason as
well, see Judge v. United States, 119 F. Supp. 3d 270, 284
(D.N.J. 2015) (a court may disregard claims and arguments raised
for the first time in reply as basic fairness “requires that an
opposing party have . . . fair notice of his adversary’s claims,
as well as an opportunity to address those claims”), and this
Court’s deciding of Petitioner’s motion to vacate without
considering Petitioner’s reply brief was proper for that reason
as well.
To the extent that Petitioner asserts that it would be
unfair for this Court to disregard his untimely reply brief
because Court staff allegedly told him the Court was inclined to
give him more time, that assertion is undocumented.

Even if

Petitioner’s assertion were true, however, that comment by a
staff member would be insufficient to warrant Rule 59(e) relief.
While the Court does regularly permit late submissions in
prisoner and pro se cases as a matter of fairness, there is no
evidence that this Court intended such relief in this case.
Indeed, this Court’s final extension order in January 2016
specifically told Petitioner that he would receive no further
extensions beyond February 12, 2016.

Thus, the record indicates

that Petitioner should have been well aware that his case was
subject to decision, with or without a reply brief, after
February 12, 2016.
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Moreover, for the reasons provided above, this Court would
have exercised its discretion to deny Petitioner’s current
request for permission to file a grossly late, optional filing
which fails to conform not only with this Court’s scheduling and
length restrictions, but also with the procedural rules
applicable to reply briefs, even if it had not already decided
Petitioner’s motion to vacate sentence.
Finally, Petitioner’s argument that it would be manifestly
unjust to deny consideration of his reply because of the time
and energy he invested in creating his reply brief in light of
the extensions provided to the Government also fails to provide
a valid basis for reconsideration.

Although it is true that the

Government was provided with several extensions, Petitioner,
too, has had several years to prepare the documents in support
of his Petition.

Indeed, if one considers the numerous months

during which Petitioner failed to file a compliant brief with
the Third Circuit on direct appeal, Petitioner has had since
April 2006, when he filed his notice of appeal, to collect and
prepare any claims he may have as to deficiencies in his
criminal trial, which he failed to do for more than a decade.
Even in this current matter, Petitioner was previously
afforded the opportunity to file a brief in support of his §
2255 motion, but failed to do so.

Petitioner likewise had the

entire period during which this matter was pending, between
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January 2014 and February 2016, to acquire all of the documents
he needed and prepare his arguments, and was provided several
months after the filing of the Government’s answer to file his
reply.

Given this history, and the considerable opportunity

Petitioner has had to raise any claim he may have, as well as
Petitioner’s failure to timely raise those claims in any forum
which has permitted him to do so, it clearly would not be
manifestly unjust to refuse to consider a late, optional reply
brief which in any event contains arguments that this Court
could not consider as they have been raised for the first time
in reply.
This Court has not overlooked any dispositive issues which
were properly presented to it, and it was not error to refuse to
wait for a reply that may never have come before deciding
Petitioner’s § 2255 motion.

Petitioner has thus failed to

establish that any manifest injustice occurred here. See Brown
v. Zickefoose, 2011 WL 5007829 at *2, n. 3.

Petitioner’s motion

for reconsideration shall therefore be denied.
Because this Court will deny Petitioner’s motion for
reconsideration, and will thus not consider Petitioner’s late
and over-length reply brief as this matter is well and truly
finished, the Court will in turn deny Petitioner’s motions for
permission to file his over-length and untimely reply brief as
if filed within time.
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III.

CONCLUSION
For the reasons set forth above, this Court will deny

Petitioner’s motion for reconsideration (ECF No. 24) and will in
turn deny Petitioner’s motions requesting permission to file an
over-length and untimely reply brief (ECF Nos. 25, 26).

An

appropriate order follows.

Date: July 28, 2016
s/ Noel L. Hillman
Hon. Noel L. Hillman,
United States District Judge
At Camden, New Jersey

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