DELLOBUONO v. SOUTHWOODS STATE PRISON et al
OPINION. Signed by Judge Noel L. Hillman on 2/28/2017. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WARDEN SOUTHWOODS STATE
PRISON, et al.,
Civ. No. 15-5689 (NLH)
John Dellobuono, # 20778B-608772
Southwoods State Prison
215 Burlington Road
Bridgeton, NJ 08302
Petitioner Pro se
HILLMAN, District Judge
Presently before the Court is a Motion for Reconsideration
(ECF No. 11) by Petitioner John Dellobuono (“Petitioner”).
the reasons set forth below, Petitioner’s motion will be DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Petitioner, a prisoner confined at Southwoods State Prison
in Bridgeton, New Jersey, filed this writ of habeas corpus under
28 U.S.C. § 2254 on or about July 22, 2015. (ECF No. 1).
According to the allegations contained in the Petition,
Petitioner pled guilty to one count of first degree kidnapping,
in violation of N.J.S.A. 2C:13-2b(1), in the Superior Court of
New Jersey, Law Division, Camden County.
He was sentenced on
May 2, 2008 to 13 years’ imprisonment subject to the No Early
Release Act (NERA), with 85% of the sentence to be served before
being eligible for parole. (Pet. 2, ECF No. 1.)
Petitioner did not file a direct appeal.
Instead, on April
21, 2011 — nearly three years after he was sentenced —
Petitioner filed a petition for Post-Conviction Relief (“PCR”).
(Pet. 4, ECF No. 1.)
The PCR Court denied his petition on
November 9, 2012. (Pet. 4, 9-10, 12 ECF No. 1.)
Division affirmed the PCR Court’s denial on September 5, 2014.
(Pet. 9, ECF No. 1); see State v. Dellobuono, No. A-2387-12T4,
2014 WL 4375683, at *1 (N.J. Super. Ct. App. Div. Sept. 5,
The New Jersey Supreme Court denied certification on
March 27, 2015. (Pet. 13, ECF No. 1); see State v. Dellobuono,
112 A.3d 592 (N.J. 2015).
Petitioner then filed this Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on July
In an Order dated October 27, 2015, this Court dismissed
the Petition without prejudice as time-barred under 28 U.S.C. §
Petitioner was granted leave to file a motion to
reopen this case within 60 days of the date of this Order for
consideration of equitable tolling issues.
On or about December
28, 2015, Petitioner filed a Motion to Re-Open, arguing that the
statute of limitations should be tolled, and his Petition should
be deemed timely filed, for equitable reasons.
(ECF No. 7.)
May 31, 2016, the Court entered an Opinion and Order denying
Petitioner’s Motion to Re-Open and finding that Petitioner was
not entitled to equitable tolling.
(ECF Nos. 9-10.)
28, 2016, Petitioner filed the instant Motion for
(ECF No. 11.)
A motion for reconsideration may be treated as a motion to
alter or amend judgment under Federal Rule of Civil Procedure
59(e), or as a motion for relief from judgment or order under
Federal Rule of Civil Procedure 60(b), or it may be filed
pursuant to Local Civil Rule 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.”
Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
A judgment may be altered or amended only if the
party seeking reconsideration shows: (1) an intervening change
in the controlling law; (2) the availability of new evidence
that was not available; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice.
for reconsideration may not be used to re-litigate old matters
or argue new matters that could have been raised before the
original decision was reached, P. Schoenfeld Asset Mgmt., L.L.C.
v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001), and mere
disagreement with the Court will not suffice to show that the
Court overlooked relevant facts or controlling law, United
States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.
Here, Petitioner explicitly states that he brings this
motion pursuant to Local Civil Rule 7.1.
(Mot. 2, ECF No. 11.)
However, a motion for reconsideration pursuant to Rule 7.1 must
be filed within 14 days after the entry of the order or judgment
on the original motion.
L. CIV. R. 7.1(i).
The Court’s Opinion
and Order dismissing the Petition was entered on May 31, 2016
and received by Petitioner shortly thereafter.
(Mot. ¶ 1.)
Petitioner did not file his Motion for Reconsideration until
July 28, 2016, well beyond the 14 day time limit.
even if the Court were to construe this Motion as one pursuant
to Federal Rule of Civil Procedure 59, such a motion would also
be untimely as the time limit under that rule is 28 days.
R. CIV. P. 59(e).
Finally, while a motion under Federal Rule of
Civil Procedure 60(b) would be timely, Petitioner cannot meet
any of the grounds required for relief under that rule.
R. CIV. P. 60(b)(“the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party…”)
As such, the Court will dismiss Petitioner’s motion for
reconsideration as untimely.1
An appropriate order follows.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: February 28, 2017
At Camden, New Jersey
Even if Petitioner’s motion was not untimely, the Court would
nevertheless deny relief. Petitioner has not alleged an
intervening change in the controlling law; the availability of
new evidence that was not available; or the need to correct a
clear error of law or fact or to prevent manifest injustice.
Instead, he simply appears to disagree with the Court’s
conclusion that extraordinary circumstances were not present and
Petitioner had not exercised due diligence in pursuing his
rights. However, mere disagreement with the Court’s decision is
not a basis for reconsideration. United States v. Compaction
Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999).
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