ELCHEIKHALI v. UNITED STATES OF AMERICA

Filing 34

LETTER OPINION re 24 Application/Petition filed by ABBAS ELCHEIKHALI. Signed by Judge William J. Martini on 2/8/10. (gh, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 5 0 W A L N U T STREET, P.O. BOX 419 N E W A R K , NJ 07101-0419 ( 9 7 3 ) 645-6340 W I L L I A M J. MARTINI JUDGE

L E T T E R OPINION

F e b ru a ry 8, 2010

A b b a s Elcheikhali #236729 S e n e c a County Jail 3 0 4 0 South State Route 100 T if f in , OH 44883 P ro Se Petitioner D e b o ra h J. Gannett A s sis ta n t U.S. Attorney P e te r Rodino Federal Building 9 7 0 Broad Street, Suite 700 Newark, NJ 07102 Attorney for Respondent R e: U n ite d States of America v. Abbas Elcheikhali C iv il Action No. 09-CV-1033 (WJM)

D e a r Litigants: This matter comes before the Court on the motion of pro se prisoner Abbas E lc h e ik h a li ("Elcheikhali" or "Petitioner") seeking reconsideration of the Court's N o v e m b e r 6, 2009 order denying his motion to vacate, set aside, or correct his pleab a rg a in e d sentence pursuant to 28 U.S.C. § 2255. There was no oral argument. Fed. R. C iv . P. 78. For the reasons stated below, the motion is DISMISSED WITH P R E J U D I C E and the relief requested therein is DENIED.

BACKGROUND In 2006, Petitioner pled guilty to conspiracy to commit mail fraud, in violation of 1 8 U.S.C. §§ 1341 and 371. (Plea Agreement with Abbas Elcheikhali dated November 1 6 , 2006). In 2007, while on supervised release and allegedly cooperating with the g o v e rn m e n t, Elcheikhali was arrested on new charges of bank fraud and identity theft. (Resp't § 2255 Br. at 2). In 2007, he pled guilty to bank fraud, in violation of 18 U.S.C. § 1 3 4 4 , and identity theft, in violation of 18 U.S.C. §§ 1028(a)(7), 1028(b)(1)(D), and 2. (Id .). By the terms of the second plea agreement, Elcheikhali waived the right to file an a p p e a l, collateral attack, writ or motion after sentencing, if the "sentence falls within or b e lo w the Guidelines range that results from the agreed total Guidelines offense level of 1 3 ." (Plea Agreement with Abbas Elcheikhali dated June 14, 2007). The two separate c rim in a l cases were consolidated before sentencing. In 2008, Elcheikhali was sentenced to 30 months imprisonment, which is equal to a total offense level of 13. P e titio n e r filed a motion to vacate, set aside or correct his plea-bargained sentence p u rs u a n t to 28 U.S.C. § 2255 in 2009. He based his motion, in part, on alleged in e f f e c tiv e assistance of counsel. (Pet'r § 2255 Br. at 5). In particular, he argued that his a tto rn e y was deficient for having advised him to cooperate with the government in e x c h a n g e for a letter recommending a downward departure in sentencing, because the g o v e rn m e n t never provided him with such a letter. (Id.). He also argued that his attorney w a s ineffective for allegedly failing to inform him of the possible immigration c o n s e q u e n c e s of entering a guilty plea. (Id. at 6). B y letter opinion and order dated November 6, 2009, the Court rejected both of E lc h e ik h a li's arguments. The Court found that the government failed to issue the d o w n w a rd departure letter because Elcheihkali violated the terms of the plea agreements b y continuing to engage in criminal activity, such that his attorney's advice was not im p ro p e r or deficient. (11/6/09 Opinion at 4). The Court also observed that Elcheikhali w a s informed by the Court on three separate occasions in open court that he could be d e p o rte d as a result of entering a guilty plea. (Id. at 4-5). Therefore, the Court c o n c lu d e d , Elcheikhali was aware of this possibility, regardless of what information or a d v ic e he was given by his attorney. (Id.). T h e Court also examined the circumstances surrounding Elcheikhali's entry into th e plea agreement and his waiver of the right to appeal. The Court considered the q u e s tio n s it had asked Elcheikhali at his hearings, as well as Elcheikhali's spoken a n s w e rs . (Id. at 3). The Court found that plea and waiver were both entered into k n o w in g ly and voluntarily. (Id.). For all of these reasons, the Court denied the § 2255 m o tio n . A t present, Elcheikhali has filed a motion for reconsideration. In seeking re c o n s id e ra tio n of the denial, Petitioner articulates essentially the same grounds as p re v io u s ly: that (1) he was allegedly told by the Assistant U.S. Attorney to answer yes to a ll of the Court's questions at the plea hearing (implying that his entry of the plea was not 2

knowing or voluntary); (2) he did not realize his plea agreement contained a waiver of a p p e a l; (3) he was entitled to a downward departure letter pursuant to U.S.S.G. § 5K1.1 d e s p ite the government's determination to the contrary; and (4) he was unaware of the im m ig ra tio n consequences of entering a guilty plea and, but for counsel's allegedly im p ro p e r advice, he would not have entered the plea. (Pt'r Br. at 1-2). A N A L Y S IS F e d e ra l Rule of Civil Procedure Procedure 59(e) and Local Civil Rule 7.1(i) p e rm it the filing of a motion for reconsideration in a criminal matter. Fed. R. Civ. P. 5 9 (e ); L.Civ.R. 7.1(I); U.S. v. Fiorelli, 337 F.3d 282, 286 (3d Cir.2003). It is welle s ta b lis h e d that a court may grant a motion for reconsideration only if the moving party d e m o n s tra te s that the court, in reaching its prior decision, overlooked a controlling d e c is io n of law or a dispositive factual matter which, if considered by the court, might re a s o n a b ly have resulted in a different conclusion. See Bryan v. Shah, 351 F.Supp.2d 2 9 5 , 297 (D.N.J. 2005); Bowers v. Nat'l Collegiate Athletic Assoc., 130 F.Supp.2d 610, 6 1 2 (D.N.J. 2001). However, relief by way of a motion for reargument is "an e x tra o rd in a ry remedy" that is only to be granted "very sparingly." See NL Indus. Inc. v. C o m m e r c ia l Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996); Maldonado v. Lucca, 6 3 6 F.Supp. 621, 630 (D.N.J. 1986). T o prevail on a motion for reconsideration, the moving party must demonstrate one o f the following: (1) an intervening change in the controlling law, (2) the existence of n e w evidence that was not available when the court issued its order, or (3) the need to c o rre c t a clear error of law or fact or to prevent manifest injustice. See North River Ins. C o . v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). To satisfy its burden, th e moving party must show "dispositive factual matters or controlling decisions of law" th a t were brought to the court's attention but not considered. P. Schoenfeld Asset Mgmt., L L C v. Cendant Corp., 161 F.Supp.2d 349, 353 (D.N.J. 1992). Significantly, a motion for reconsideration may not be used to re-litigate old m a tte rs or to argue new matters that could have been raised before the original decision w a s reached. P. Schoenfeld Asset Mgmt., 161 F.Supp.2d at 352. A party seeking re c o n s id e ra tio n must show more than a disagreement with the Court's decision. Recapitulation of the cases and arguments considered by the Court before rendering its o rig in a l decision fails to carry the moving party's burden. Id. H e re , the arguments that Petitioner makes in support of reconsideration are v irtu a lly identical to those that he previously raised in his § 2255 motion with respect to in e f f e c tiv e assistance of counsel. He alleges that he was coached by the Assistant U.S. A tto rn e y to answer affirmatively to all the Court's questions, implying that his entry into th e plea agreement and waiver of the right to appeal was not knowing or voluntary; that h e was unaware his plea agreement contained a waiver of appeal; that he was entitled to a d o w n w a rd departure despite the government's findings to the contrary; and that he was 3

not aware that he could be deported for entering a guilty plea. (Pt'r Br. at 1-2). However, a s noted above, the Court already considered these very arguments and found them to be w ith o u t merit. S p e c if ic a lly, as also noted above, the Court found that Elcheikhali's entry into the p le a agreement and waiver were knowing and voluntary; that he violated the terms of his p le a agreement by continuing to engage in criminal behavior such that he was not entitled to a downward departure in sentencing; and that regardless of what his attorney told him, th e Court itself informed Elcheikhali on three separate occasions that deportation was a p o s s ib le consequence of entering the guilty plea. (11/09/09 Opinion at 3, 4). Significantly, Elcheikhali does not identify any changes in controlling law, the existence o f newly available evidence, nor any clear errors of law or fact made by the Court. Rather, he simply recapitulates his prior arguments. As such, his motion contains no g ro u n d s upon which reconsideration can be granted and therefore must be dismissed. CONCLUSION F o r the reasons stated above, Petitioner's motion for reconsideration is D I S M I S S E D WITH PREJUDICE and the relief requested therein is DENIED. An a p p ro p ria te order follows.

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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