AVILA v. JOHNSON et al

Filing 123

OPINION. Signed by Judge Noel L. Hillman on 2/26/2024. (jab,N.M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ABDIEL F. AVILA,
Petitioner,

Civil Action
No. 18-9422 (NLH)

v.
OPINION
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
et al.,
Respondents.

APPEARANCES:
Abdiel F. Avila
788891C
New Jersey State Prison
PO Box 861
Trenton, NJ 08625
Petitioner pro se
Grace C. MacAulay, Camden County Prosecutor
Jason Magid, Assistant Prosecutor
Office of the County Prosecutor
200 Federal Street
Camden, NJ 08103
Attorneys for Respondents
HILLMAN, District Judge
I.

INTRODUCTION
On November 29, 2023, the Court dismissed Petitioner Abdiel

F. Avila’s amended petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in part as procedurally defaulted and denied

the amended petition in part.

ECF No. 120.

On February 2,

2024, Petitioner filed a “motion of clerical mistakes, seeking
emergency relief.”

ECF No. 122.

Respondents did not file

opposition to the motion.
For the reasons stated herein, the Court will deny the
motion.
II.

BACKGROUND
The Court has recited the facts of this case in other

opinions in this matter and will not reproduce them here.
e.g., ECF No. 89 at 2-6.

See,

Previously, this Court sealed the

entire matter at the request of Respondents.

See ECF No. 26.

Subsequently, Petitioner filed a motion to unseal this case.
See ECF No. 37.

In response to Petitioner’s motion, this Court

noted that sealing the entire case may have been overbroad and
ordered Respondents to propose a less restrictive alternative to
sealing the entire case, such as specifically noting what
documents already in the record should remain sealed.

See ECF

No. 44 at 13.
Respondents argued that the § 2254 petition, ECF No. 1;
supplemental filing, ECF No. 4; amended petition and exhibits,
ECF Nos. 10 & 11; motion to dismiss, ECF No. 23; motion to
unseal, ECF No. 37; brief in support of the motion to unseal,
ECF No. 41; and Respondents’ full answer and exhibits, ECF No.
56 should be sealed.

ECF No. 56.

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The Court concluded that the

identified documents should remain under seal to protect the
identity of the victim but ordered Respondents to file redacted
versions of the documents.

ECF No. 88.

Clerk to lift the seal on the case.

Id.

The Court ordered the
Respondents

subsequently filed redacted versions of the documents.

ECF Nos.

100-06, 111-12.
The Court denied the amended petition in part and dismissed
in part as procedurally defaulted on November 29, 2023.
120.

ECF No.

The Court also denied two motions for reconsideration of

prior Orders.

Id.

On December 7, 2023, Petitioner submitted a

document captioned “breach of duty of judgment creditor to enter
satisfaction of judgment and refund all amounts in escrow”
asking for entry of judgment in his favor for the summary
judgment motions.

ECF No. 121 at 9-10.1

On January 25, 2024,

Petitioner submitted the instant motion for relief under Federal
Rule of Civil Procedures 60(a).

ECF No. 122.

III. STANDARD OF REVIEW
“The court may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record.”
60(a).

Fed. R. Civ. P.

Rule 60(a) “is limited to the correction of ‘clerical

No action is required on this document because the Court
addressed the motions for reconsideration in its November 29,
2023 Opinion and Order dismissing the amended petition. ECF
Nos. 119-20.
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mistakes’; it encompasses only errors ‘mechanical in nature,
apparent on the record, and not involving an error of
substantive judgment.’”

Pfizer Inc. v. Uprichard, 422 F.3d 124,

129–30 (3d Cir. 2005) (quoting Mack Trucks, Inc. v. Int'l Union,
United Auto, Aerospace & Agr. Implement Workers of Am., UAW, 856
F.2d 579, 594 n.16 (3d Cir. 1988)).
IV. ANALYSIS
Petitioner asks the Court to vacate its Opinion and Order
and appoint pro bono counsel because the Court cited to the
“wrong” document.

ECF No. 122.

“This Court’s Opinion’s data

and rationale . . . is predicated only on ECF No. 102 the
redacted version of ECF No. 10 this clearly is a ‘Mistake.’”
Id. at 2.

He asserts the Court should have cited to ECF No.

103, the redacted version of ECF No. 11.

Id. at 2-3.

He argues

“no federal review was made on the ACTUAL AMENDED PETITION”
because of this error.

Id. at 3.

Petitioner’s argument fails

for several reasons.
First, the relief Petitioner seeks goes beyond the scope of
Rule 60(a).

“The relevant test for the applicability of Rule

60(a) is whether the change affects substantive rights of the
parties and is therefore beyond the scope of Rule 60(a) or is
instead a clerical error, a copying or computational mistake,
which is correctable under the Rule.”
(cleaned up).

Pfizer, 422 F.3d at 130

“It is only mindless and mechanistic mistakes,

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minor shifting of facts, and no new additional legal
perambulations which are reachable through Rule 60(a).”
(cleaned up).

Id.

Petitioner is not asking for a minor correction

of the judgment; he seeks to vacate the judgment and reopen the
§ 2254 proceedings.

ECF No. 122 at 5.

Such relief is only

available under Rule 60(b)(1), which allows a party to seek
relief from a judgment based on a mistake.

See Kemp v. United

States, 596 U.S. 528, 534 (2022) (“[] Rule 60(b)(1) covers all
mistakes of law made by a judge . . . .”).
Second, Petitioner’s motion is untimely under Rule
60(b)(1).2

A motion under Rule 60(b)(1) must be made within a

reasonable time but no more than a year after the entry of the
challenged judgment.

Fed. R. Civ. P. 60(c)(1).

Petitioner

submitted his motion 57 days after the judgment’s entry.
No. 122 at 5.

ECF

The essence of Petitioner’s argument is that the

Court did not address the merits of his amended petition.
No. 122 at 3.

ECF

“The harm alleged here — failure to grapple with

caselaw in the amended . . . petition — could have been
addressed and remedied on direct appeal.”
States, 39 F.4th 827, 834 (7th Cir. 2022).

Blitch v. United
However, Petitioner

was required to file a notice of appeal 30 days after this Court

The Court liberally construes the motion as being brought
pursuant to Rule 60(b)(1) in light of Petitioner’s pro se
status.
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dismissed his amended habeas petition, i.e., by December 29,
2023.

Fed. R. App. P. 4(a)(1)(A).

He did not file a notice of

appeal.
This motion was filed about a month after the time for
Petitioner to file a timely notice of appeal expired.

“[A] Rule

60(b) motion filed after the time to appeal has run that seeks
to remedy errors that are correctable on appeal will typically
not be filed within a reasonable time.”
Bank, 725 F.3d 651, 660 (7th Cir. 2013).

Mendez v. Republic
See Kemp, 596 U.S. at

538 (“[W]hile we have no cause to define the ‘reasonable time’
standard here, we note that Courts of Appeals have used it to
forestall abusive litigation by denying Rule 60(b)(1) motions
alleging errors that should have been raised sooner (e.g., in a
timely appeal).”); Harrison, 2023 WL 7017695, at *2 (citing
Blitch and Mendez).

The Court concludes that Petitioner did not

file his motion within a reasonable amount of time because he
filed it after his time to file a timely appeal expired.

Here,

as in a similar matter, even though Petitioner filed the motion
within one year, “the motion still needed to be filed within a
reasonable time.

It was not.”

Harrison v. Harrison, No. 22-

3361, 2023 WL 7017695, at *2 (3d Cir. Oct. 25, 2023) (per
curiam).
Third, Petitioner would not be entitled to relief even if
the motion were timely.

The grounds raised in ECF No. 102 and

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ECF No. 103 are substantively identical with only minor
differences in format and spelling.
97, with ECF No. 103 at 51-100.

Compare ECF No. 102 at 51-

Petitioner does not identify

any claims, arguments, or evidence that the Court failed to
address by referring to No. 102 instead of No. 103.

Nor does he

allege any specific errors the Court made that affected the
final decision.

The Court carefully reviewed the entire record,

including Petitioner’s numerous “supplementary” filings, in
reaching its decision.

This is true even if the documents are

not specifically cited, but the Order notably references ECF No.
102 and ECF No. 103 in dismissing and denying the amended
petition.

ECF No. 120.

Therefore, the Court will deny the

motion.
V.

CONCLUSION
For the reasons stated above, the Court will deny

Petitioner’s motion.
An accompanying Order will be entered.

February 26, 2024
Date
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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