GARCIA v. BARTKOWSKI
OPINION. Signed by Judge Dickinson R. Debevoise on 4/16/2015. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 11-3689 (DRD)
AGUSTIN GARCIA, #822642B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
ANNMARIE COZZI, ASSISTANT PROSECUTOR
BERGEN COUNTY PROSECUTOR
10 Main Street
Hackensack, New Jersey 07601
Attorneys for Respondents
Debevoise, Senior U.S. District Judge
On February 27, 2015, the Court denied Agustin Garcia’s Petition for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254 challenging a judgment of conviction filed in the Superior Court
of New Jersey, Bergen County, on February 1, 2002, and amended on May 13, 2004, after a jury
found him guilty of the murder of Gladys Ricart, his former girlfriend, and related charges. Garcia
now moves for reconsideration of denial of his Petition. The motion for reconsideration will be
L. Civ. R. 7.1(i) provides for reconsideration upon a showing that dispositive factual
matters or controlling decisions of law were overlooked by the court in reaching its prior decision.
Reconsideration is an extraordinary remedy and granted sparingly. The three principal grounds
for relief are (1) an intervening change in controlling law has occurred; (2) evidence not previously
availably has become available; or (3) it is necessary to correct a clear error of law or prevent
manifest injustice. The motion can succeed only if the overlooked matters might reasonably have
resulted in a different conclusion by the court. Garcia advances no change in controlling law nor
evidence not previously available that has become available. He must be relying on a clear error
of law or prevention of manifest injustice argument.
Garcia maintains that this Court “completely ignored” that the state courts never ruled on
his motion for reconsideration of the denial of his first post conviction relief petition, which was
hand delivered to the trial court’s clerk on May 23, 2007. (ECF No. 35 at 4.) He argues that the
“state court never entered [a] ruling on this motion which again tolled [the] federal statute of
limitation because it rendered any subsequent ruling by [the A]ppellate [D]ivision jurisdictionally
defective” and “non-final.” Id. at 5. According to Garcia, “because of tolling resulting from filing
of this May 23, 2007 motion for reconsideration of [the] May 4, 2007 adverse ruling, the statute
of limitation clock never restarted.” (ECF No. 35 at 5.) This argument lacks merit. This Court
found that the federal statute of limitations was statutorily tolled from the date on which Garcia
filed his first state petition for post-conviction relief in January 2005 until June 21, 2010, the date
on which the New Jersey Supreme Court denied certification on the issues Garcia raised
challenging the rejection of the post-conviction relief petition. Garcia argues that the Appellate
Division lacked jurisdiction to rule on his appeal from the denial of post-conviction relief, but the
Appellate Division exercised jurisdiction over Garcia’s appeal and it is not within the province of
this Court to find that the Appellate Division lacked jurisdiction under New Jersey law.
Next, Garcia contends that this Court erred in finding that his third petition for postconviction relief did not statutorily toll the federal limitations period. He argues that his third postconviction relief petition met the threshold requirement for timeliness because he raised the issue
of the ineffective assistance of post-conviction relief counsel in that petition. (ECF No. 35 at 56.) However, this Court found that the third post-conviction relief petition was not timely or
properly filed because it was filed two years after his untimely second post-conviction relief
petition. Garcia is not entitled to reconsideration because he has not shown that this Court’s
determination was a clear error of law or resulted in manifest injustice.
Finally, Garcia maintains that the “instant matter represents a perfect case of cause for . . .
procedural default” under Martinez v. Ryan, 132 S.Ct. 1309 (2012). This argument is misplaced.
Martinez v. Ryan did not involve the timeliness of a § 2254 petition. The case raised the question
of whether a federal court could entertain a habeas petitioner’s claim that trial counsel was
constitutionally ineffective, even though the claim was not properly presented to the state courts
due to an attorney’s errors in the initial collateral proceeding. The Supreme Court held that the
ineffective assistance in an initial collateral proceeding on a claim of ineffective assistance at trial
can provide cause for a procedural default in a federal habeas proceeding.
Garcia has not shown that reconsideration is warranted. The Court will file an order
denying the pending motion.
s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
Dated: April 16, 2015
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