BATTLE v. UNITED STATES OF AMERICA

Filing 23

OPINION. Signed by Judge Jose L. Linares on 6/30/15. (DD, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TERRY BATTLE,
Civil Action No. 13-2024 (JLL)
Petitioner,
v.

:

OPINION

UNITED STATES OF AMERICA,
Respondent.
L1NARES, District Judge:
Presently before the Court are the post-judgment motions of Terry Battle (“Petitioner”) to
alter or amend the Court’s order denying his motion to vacate, set aside, or correct his sentence.
(ECF No. 13, 15). Respondent, United States of America (“Respondent”), filed responses (ECF
No. 18, 21), to which Petitioner replied. (ECF No. 20, 22).

For the following reasons, the

Court will grant in part and deny in part Petitioner’s Rule 59(e) motion and will deny Petitioner’s
Rule 60(b) motion. The Court will also order an evidentiary hearing solely as to Petitioner’s claim
that he received ineffective assistance of counsel in so much as counsel failed to advise him with
regards to the plea agreement offered by the Government.

I. BACKGROUND

As the background facts supporting Petitioner’s conviction were previously summarized
in this Court’s opinion as to Petitioner’s

§ 2255 motion, only a brief recitation of the facts is

necessary for the resolution of Petitioner’s current post-judgment motions. As laid out in this
Court’s previous opinion,

[o]n or about August 22, 2007, Jose N. Orozco and an unindicted
individual known as “Julio” supplied approximately six kilograms
of cocaine to Petitioner for sale. Petitioner then provided the
cocaine to Larry McCargo to sell in Newark, New Jersey.
McCargo was arrested with the cocaine in Newark on August 22,
2007.
McCargo immediately began cooperating with law
enforcement, which led to Petitioner’s arrest. Petitioner also
agreed to cooperate, and engaged in a number of consensually
monitored telephone calls with Orozco and Julio. During the calls,
Petitioner told Orozco and Julio that he needed to return the cocaine.
He also arranged with Orozco and Julio for Orozco to come to New
Jersey from Delaware to retrieve the cocaine. Wben Orozco
arrived in New Jersey on August 23, 2007 to retrieve the cocaine
from Petitioner, he was arrested.
On August 24, 2007, Petitioner and Orozco were charged by
Complaint with conspiring to distribute more than five kilograms of
cocaine, in violation of 21 U.S.C. § 846.
(ECF No. 10 at 1-2).
Although Petitioner was originally represented by the Federal Public Defender’s office, he
ultimately hired the Law Offices of Paul W. Bergrin to represent him. (United States
v. Battle,
Criminal Action No. 07-900 at ECF No. 10). Attorney Zilka Saunders, who at the
time was an
employee of those law offices, therefore entered her appearance as Petitioner’s
attorney on
September 4, 2007.’

(Id.).

On that same day, the Government sent a letter to the assigned

magistrate judge raising the possibility of a conflict of interest which might exist
between
Petitioner and Paul Bergrin’s office as a result of certain criminal indictments which
had arisen
against Bergrin in New York. (See Document 1 attached to ECF No. 21). Based
on this letter,

Although Petitioner asserts that he specifically hired Paul Bergrin himself, and
met with
Bergrin about his case, the record is devoid of any evidence that Bergrin himsel ever
f
acted on
Petitioner’s behalf before this Court. Only Ms. Saunders appeared on Petitio
ner’s behalf, and
the U.S. Attorney’s Office denies ever having any contact with Bergrin in regard
to Petitioner’s
case. (See ECF No. 18 at 2 n. 1).
2

the magistrate judge appointed an attorney to advise Petitioner in regards to the
potential conflict
and, after the attorney had had an opportunity to meet with Petitioner, held hearing
a
to determine
whether Petitioner wished to waive any conflict. (Document 2 attached
to ECF No. 21 at 2).
During that hearing, appointed counsel detailed his having met and discus
sed the issue with
Petitioner. (Id. at 2-4). Appointed counsel stated that Petitioner was aware
of the issue prior to
meeting with him, and ultimately that Petitioner didn’t believe the conflic
t would affect his
relationship with Bergrin or his office. (Id. at 4). The magistrate judge then
directly questioned
Petitioner:
THE COURT: [Petitioner], do you feel you had enough time to
speak with [appointed counsel] about this situation?
[Petitioner]: Yes.
THE COURT: Do you have any questions that you would like to
ask the Court or [appointed counsel] that you didn’t get a chance to
ask?
[Petitioner]: No.
THE COURT: Okay. In light of your discussions with [appointed
counsel] do you still want Mr. Bergrin and his office to represent
you in this case?
[Petitioner]: Yes.
THE COURT: Okay. What I’m taking from you today as a result
of both our discussions the last time we were together and our
discussions today is you’re waiving any argument or complaint that
Mr. Bergrin has a potential conflict of interest. Do you understand
you’re giving up that argument?
[Petitioner]: Yes.
THE COURT: Okay. Are you doing that of your own free will?
[Petitioner]: Yes.
3

THE COURT: And it’s your choice to have Mr. Bergrin and
nobody’s putting any pressure on you. Is that right?

[Petitioner]: Yes.
(Id. at 4-5). Appointed counsel was therefore relieved and Petitioner contin
ued with Bergrin’s
office, by way of Ms. Saunders, as his attorney.

On September 27, 2007, the Government extended a proposed plea agreement
to Petitioner.
(Document 1 attached to ECF No. 18). Pursuant to the agreement, in exchan
ge for a guilty plea
to conspiracy to distribute more than five kilograms of cocaine, the Govern
ment would not have
pursued any further criminal charges against Petitioner in relation to the drug
conspiracy. (Id. at
2).

In the Agreement, the U.S. Attorney also agreed to an initial Sentencing
Guidelines

calculation which, without a career offender sentencing enhancement, would
have resulted in an
offense level of 29 which would equate to a sentence between 151 and 188 month
s. (Id. at 7, ECF
No. 10 at 2). Petitioner, however, refused the plea agreement, which was ultima
tely withdrawn
on February 15, 2008. (Withdrawal Letter attached to ECF No. 18 as Exhibi
t B at 1).
There is some dispute as to what advice counsel provided Petitioner
in regards to the
proposed plea agreement. Petitioner asserts that counsel “made light”
of the plea agreement and
did not explain the “significance, seriousness, and consequences
of not accepting the
Government’s plea offer.” (ECF No. 3 at 4). Petitioner also asserts
that counsel did not discuss
the merits of continuing his cooperation with the government in the hopes
of a reduced sentence
on motion of the Government in relation to the career offender
guidelines.
certification, however, Petitioner’s former counsel states that
[u]pon receipt of the [plea] offer, I reviewed it and discussed it with
[Petitioner]. These discussions took place when I visited [him]

4

(Id.).

In her

while he was detained pending trial. While I cannot provide
specific dates, [Petitioner] and I had several discussions about the
Government’s plea offer. During those discussions, I reviewed the
advisory guidelines with [Petitioner]. Given [his] significant
criminal history, his criminal history category was likely VI, which
corresponded to an advisory range of 151 to 188 months
imprisonment. I informed [Petitioner] that that advisory guideline
range was below the range that would result if [he] proceeded to trial
and was found guilty.
In addition to discussing the plea offer, [Petitioner] and
I also discussed [his] cooperating with the Government. Prior to my
involvement in the case, and prior to the filing of the Complaint,
[Petitioner] had cooperated in the Government’s investigation.
Given his prior cooperation, [Petitioner] and I discussed that if [he]
pleaded guilty and cooperated, that the Government may file a
motion that could result in [his] receiving a reduced sentence. In
light of the Government’s evidence in this case, [Petitioner’s] prior
cooperation, and the opportunity to obtain a reduced sentence, I
recommended to [Petitioner] that he accept the Government’s plea
offer and cooperate with the Government in its investigation.
[Petitioner], however, repeatedly rejected this advice and informed
me that he wished to proceed to trial.
(Document 5 attached to ECF No. 8 at 3-4).
Prior to trial, Petitioner moved to suppress certain statements and recordings he had made
during his period of cooperation with the Government. At that hearing, Petitioner
asserted his
innocence and that he had “fabricated” his prior inculpatory statements made
during this
cooperation with the Government. (Suppression Hearing Transcript attached to ECF
No. 18 at
110-12).

Petitioner also claimed during that hearing that he had not engaged in cocain
e

transactions with his co-defendants. (Id. at 112).
The Court denied Petitioner’s suppression motion, and the matter proceeded
to trial.
Petitioner was found guilty on March 6, 2008.

(ECF No. 10 at 2).

Petitioner and his co

defendant both filed motions for new trials, which were denied. (Id.). Petitio
ner was ultimately
5

sentenced on December 8, 2008. During sentencing, Judge Cavanaugh specifically
noted that the
“Sentencing Guidelines are no longer mandatory but advisory upon the Court.
” (Sentencing
Transcript attached to ECF No. 18 at 18). Based upon the guidelines recommendatio
ns made in
the PSR and Judge Cavanaugh’s evaluation of the 3553(a) factors, Petitioner was
2
§
sentenced to
360 months’ imprisonment. (Id. at 18-22). Petitioner and his co-defendant thereafter appeal
ed.
The Third Circuit affirmed Petitioner’s conviction and sentence on January 4, 2012,
in a non
precedential opinion. See United States v. Orozco, 456 F. App’x 149, 152 (3d Cir.
2012).
Petitioner filed his initial

§

2255 motion on or about March 28, 2013. (ECF No. 1). On

June 13, 2013, Judge Cavanaugh, to whom the motion was initially assigned, entered
an Order To
Answer directing Respondent to file its answer by August 13, 2013. (ECF No. 4).
On August 7,
2013, Judge Cavanaugh entered an order extending Respondent’s time to reply
so that they could
properly interview Petitioner’s trial counsel after a court ordered limited waiver
of Petitioner’s
attorney-client privilege. (ECF No. 7). Respondents thereafter filed their answer
to Petitioner’s
motion on September 27, 2013, in accord with Judge Cavanaugh’s extension order.
(ECF No. 8).
On March 11, 2014, Petitioner’s motion was reassigned to Judge Hochberg. (ECF
No. 9). Judge
Hochberg thereafter issued an order and opinion denying Petitioner’s motion on March
26, 2014.
(ECF No. 10, 11). Although Petitioner certifies that he mailed his traverse on
March 21, 2014,
that document was not received by the Clerk’s Office until April 2, 2014, approx
imately one week
after Judge Hochberg issued her ruling on Petitioner’s motion and approximately
six months after
Respondent filed its answer. (ECF No. 12).
2

Based on Petitioner’s criminal history and the career offender enhancement,
Judge Cavanaugh
found the applicable Guidelines Range to be 360 months to life based on an
offense level of 37
and a criminal history category of VI. (Sentencing Transcript at 19).
6

II. PETITIONER’S RULE 59(e) MOTION
A. Legal Standard

The scope of a motion brought pursuant to Rule 59(e) is extremely limited.
See Blystone
v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Such a motion may not be used
to relitigate every
facet of a case, but rather may be employed “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 eviden
ce 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 this context, manifest injustice “gener
ally.

.

.

means

that the Court overlooked some dispositive factual or legal matter that was presen
ted 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).

B. Analysis
Preliminarily, Petitioner argues that this Court should reconsider the motion
Judge’s
decision because that decision did not take into account Petitioner’s travers
e. A traverse or reply
brief, however, is not a required pleading in the

§

2255 context. See Rule 5(d) of the Rules

Governing Section 2255 Cases; see also Irizariy v. United States, Civil
Action No. 12-656, 2012
WL 5494806, at *3 (E.D. Pa. Nov. 13, 2012). As such, it does not amoun
t to legal error for a
7

District Court to decide a § 2255 motion in the absence of a reply brief, especially where
that reply
is not received by the deciding court until after it makes its ruling. Irizarry, 2012
WL 5494806
at *3• Here, Petitioner’s traverse was not received until April 2, 2014, approximatel
y one week
after Judge Hochberg decided his

§ 2255 motion and several months after the Government’s

answer. Contrary to Petitioner’s supposition in his Rule 59(e) motion, there is no eviden
ce in the
record that he ever requested an extension of time within which to file a reply of
any kind. (See
ECF Docket). Although the Local Civil Rules do not set a specific timeline for the
filing of a
non-mandatory reply brief in

§ 2255 motions, See Local Civ. R. 81.2(d), and Judge Cavanaugh

did not order that such a pleading be filed by a given date, it was entirely reason
able for the motion
judge to assume that no reply was forthcoming given the nearly six month period
of time which
had passed between the filing of the answer and entry of this Court’s opinion.
It was therefore
not an error of law to decide Petitioner’s motion prior to receipt of a non-mandatory travers

e which

the motion judge had no reason to know was forthcoming and which, in any event,
was not
received until after the entry ofjudgment. The lack of consideration of the late
reply is therefore
not a basis for relief under Rule 59(e), and the Court will now turn to Petitio
ner’s substantive
arguments as to that motion.
Petitioner argues that he is at least entitled to an evidentiary hearing as to
the issues raised
in his

§ 2255 motion, and as such this Court should reconsider the decision denying that motion.

Under

§ 2255, an evidentiary hearing is required on a motion to vacate “unless the motion and

files and records of the case conclusively show that the prisoner is entitled to

no relief.” 28 U.S.C.

§2255(b); see also United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005);
United States v. Day,
969 F.2d 39, 41-42 (3d Cir. 1992).

Where the filings, record, and trial judge’s personal
8

knowledge combine to conclusively negate the factual predicates asserte
d by a petitioner or
indicate that the petitioner is not entitled to relief, no hearing is required. Govern
ment of Virgin
Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United
States v. Tuyen Quang
Pham, 587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546 (evidentiary
necessary only where
a petitioner’s claims are not conclusively resolved by the record).
In his motion, Petitioner argued that his trial counsel was constitutionally ineffec
tive. In
support of that assertion, Petitioner raised two claims: that counsel failed to proper
ly advise him
as to the plea agreement offered by the Government, including as to the potent
ial for a Rule 35
sentence reduction motion in the event of his continued cooperation, and
3
that counsel was
ineffective for failing to argue that the Sentencing Guidelines, including the
career offender
guideline, were not binding upon the sentencing judge. Ineffective assistance
of counsel claims
arise under the Sixth Amendment and are governed by the two-prong test established
in Strickland
v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner is required
to first show that
“counsel’s performance was deficient. This requires showing that counsel made
errors so serious
that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.”
Id. at 687;
see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). A petitio
ner must then show
that counsel’s deficient performance prejudiced his defense such that counse
l’s errors were so
serious as to “deprive [the petitioner] of a fair thal

.

.

.

whose result is reliable.” Strickland, 466

Although Petitioner separated his plea related claims into two points in his memor
andum of
law, both his points one and three deal with counsel’s advice in relation to
the offered plea
agreement, and are not truly distinct from one another. Contrary to Petitio
ner’s assertion in his
post-judgment motions, this Court’s decision as to his 2255 motion did not
ignore his claim
§
regarding counsel’s advice or lack thereof as to a potential Rule 35 motion resultin
g from his
accepting the guilty plea, but rather considered it as part of his claim that counse
l failed to advise
him regarding the plea agreement.
9

U.S. at 687; Shedrick, 493 F.3d at 299.
In evaluating counsel’s conduct, the “proper standard for attorney perform
ance is that of
‘reasonably effective assistance.” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir.
2005). A petitioner
must therefore show that his counsel’s representation “fell below an objecti
ve standard of
reasonableness” considering all the circumstances. Id. Reasonableness
in this context must be
determined based on the facts of Petitioner’s particular case, viewed as of
the time of the conduct
Petitioner alleges was ineffective. Id.
deferential

.

.

.

In scrutinizing counsel’s conduct, courts “must be highly

a court must indulge a strong presumption that counsel’s conduct falls within
the

wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689.
Even where the petitioner establishes deficient performance, he must still affirma
tively
demonstrate that counsel’s deficiency prejudiced his defense. Id. at 692-93
. “It is not enough
for the defendant to show that the errors had some conceivable effect
on the outcome of the
proceeding.” Id. at 693. Instead, Petitioner must show that “there is a
reasonable probability,
but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A

reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at
694; see also Shedrick, 493 F.3d at 299. “It is firmly established that a
court must consider the

strength of the evidence in deciding whether the Strickland prejudice prong
has been satisfied.”
Saranchak v. Beard, 616 F.3d 292, 311 (3d Cir. 2010) (quoting Buehi v.
Vaughn, 166 F.3d 163,
172 (3d Cir. 1999)). “Because failure to satisfy either prong defeats an
ineffective assistance
claim, and because it is preferable to avoid passing judgment on counse
l’s performance when
possible, [Strickland, 466 U.S. at 697-98j,” it is appropriate for courts to
first address the prejudice
prong where it is dispositive of a petitioner’s claims. United States v.
Cross, 308 F.3d 308, 315
10

(3d Cir, 2002).
Dealing first with Petitioner’s second argument, this Court was entirel
y correct in
determining that Petitioner could not show prejudice in relation to his claim that counse
l failed to
research and argue that the Sentencing Guidelines were not mandatory. At senten
cing, Judge
Cavanaugh clearly stated on the record that the “Sentencing Guidelines are no longer
mandatory
but advisory upon the Court.” (Sentencing Transcript attached to ECF No. 18
at 18). Judge
Cavanaugh was obviously aware that the guidelines, including the career offend
er guideline, were
not binding upon him and that he was instead required only to sentence Petitioner within
the limits
of the statute after consideration of the relevant sentencing factors under

§ 3553(a). (Id. at 18-

20). As such, it was neither an error of law or fact, nor a manifest injustice for this Court
to deny
Petitioner’s motion on that ground.
As to Petitioner’s argument that he was denied proper advice in regard to the
offered plea
agreement the matter is more complicated. Petitioner’s right to effective assista
nce extends to the
plea-bargaining context. United States v. Bui, 769 F.3d 831, 835 (3d Cir. 2014).
As the Third
Circuit has explained,
[wjhen addressing a guilty plea, counsel is required to give a
defendant enough information “to make a reasonably informed
decision whether to accept a plea offer.’ Shotts v. Wetzel, 724 F.3d
364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,
43 (3d Cir. 1992)), cert. denied,
U.S.
134 S. Ct. 1340 (2014).
We have identified potential sentencing exposure as an important
factor in the decision[-jmaking process, stating that “[k]knowledge
of the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether
to plead guilty.” Day, 969 F.2d at 43. In order to provide this
necessary advice, counsel is required “to know the Guidelines and
the relevant Circuit precedent.
United States v. Smack, 347
F.3d 533, 538 (3d Cir. 2003).
---

.

.

11

---,

.“

Id.

Even where a petitioner can show that counsel provided defective advice in rejecting a
guilty

plea, he must still show prejudice by showing that “but for his counsel’s advice he would
,
have
accepted the plea and that [the] plea agreement would have result in a lesser senten
ce.” Rickard
v. United States, Civil Action No. 10-4089, 2011 WL 3610413, at *8 (D.N.J
. Aug. 16, 2011);
accordLaflerv. Cooper,

---

U.S.

---,

---,

132 S. Ct. 1376, 1384-85 (2012).

Both in his 59(e) motion and his original pleading, Petitioner asserts that counse
l failed to
give any meaningful advice as to the offered plea, instead giving the plea short
shrift. Petitioner
likewise suggests that had counsel advised him of the possibility of a Rule 35 motion
for a reduced
sentence based on cooperation with the Government, he would have pled guilty
pursuant to the
plea agreement.

Respondent, however, submitted a certification by counsel that specifically

denies Plaintiffs suppositions. Trial counsel specifically certifies that she fully
discussed the
sentencing consequences Petitioner would face under the plea agreement
as opposed to the
sentence he would face were he found guilty at trial, including the possibility
of a Rule 35 motion,
and that she advised Petitioner to accept the plea. Counsel also certified that Petitio
ner adamantly
refused to plead guilty and insisted on proceeding to trial. As the motion
judge’s opinion noted,
that Petitioner professed his innocence and denied his involvement in any
drug activity during the
suppression hearing lends credence to the supposition both that Petitio
ner refused to accept the
plea when so advised by counsel, and that Petitioner would not have accept
ed the plea offer in any
event, and thus would not be able to show prejudice regardless of any deficie
ncies in counsel’s
representation. Although those statements by Petitioner certainly suppor
t and are consistent with
counsel’s assertions in her certification, they do not in and of themse
lves prove that counsel’s
version of events, as opposed to Petitioner’s, are accurate. The motion
judge’s decision to that
12

effect thus at least borders on making a credibility determination, which
would suggest that the
motion paperwork and record did not conclusively negate Petitioner’s
assertions and that an
evidentiary hearing would have been prudent in this case. See Booth,
4
432 F.3d at 545. While
this Court is not convinced that the motion judge’s denial of Petitio
ner’s

§ 2255 motion on this

ground was a clear error of law sufficient to require remedy under Rule
59(e), out of an abundance
of caution this Court will grant Petitioner’s 59(e) motion in part and
hold an evidentiary hearing
solely as to Petitioner’s claim that counsel failed to properly advise
him as to the offered plea
agreement and that he would have accepted that agreement given proper
advice.
In his reply brief, Petitioner raised an additional argument of ineffec
tive assistance of
counsel which had not previously been raised in his

§ 2255 motion or in either his Rule 59(e) or

60(b) motions: that his former counsel, Paul Bergrin, was indicted
for certain crimes and that a
conflict of interest which impugned Petitioner’s Sixth Amendment
rights therefore existed.
Petitioner argues that both Bergrin’s arrest on prostitution related
charges and subsequent
indictment for more serious crimes created conflicts ofwhich he was never

made aware. Initially,

this Court notes that it need not consider a point raised only in
Petitioner’s reply brief. See
Thompson v. United States, No. 12-1312, 2015 WL 1344793, at *6
n. 9 (D.N.J. March 23, 2015)
(courts need not consider arguments raised for the first time in a reply

brief); Soto v. United States,

No. 04-2108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005);
Rodriguez v. United States, No.
04-1 58, 2005 WL 2007033, at *9 n. 7 (D.N.J. Aug. 22, 2005).
Although this Court need not reach

Had it been the trial judge who rendered this decision, it is possib
le such a judgment was the
result of the trial judge’s experience with Petitioner’s case and
recollection as to Petitioner’s
actions at and prior to trial. See Nicholas, 759 F.2d at 1075.
As the motion was not decided by
the trial judge, no such recollection can be said to underlay the
motion judge’s decision.
13

the issue, it is clear from the record that Petitioner’s contention is
without merit. Knowing that
counsel had been indicted, and perhaps that Bergrin was
under further investigation, the
Government specifically requested that the magistrate judge hold
a hearing as to the potential
conflicts Bergrin’s criminal charges created as soon as counse
l entered her appearance on
Petitioner’s behalf.

The magistrate judge not only ordered a hearing on that issue,
but also

appointed a conflicts counsel to advise Petitioner as to the issue
in advance of that hearing.
During the hearing, the magistrate judge discussed not only the
then pending prostitution related
charges in New York, but also the known likelihood that Bergri
n would be subject to separate
charges, including potential federal criminal charges, at a later date.
(Hearing Transcript attached
to ECF No. 21 at 3-4). Conflicts counsel was specifically asked
both about the New York state
charges, including prostitution related offenses, and the potential for
further charges relating to a
federal investigation then ongoing in New Jersey against Bergrin,
about both of which Petitioner
was already aware.

(Id.). After an opportunity to discuss the matter with conflic
ts counsel,

Petitioner specifically, on the record, acknowledged the potential
conflict of interest and waived
any argument as to that conflict.

(Id. at 4-7).

The magistrate judge thereafter specifically

accepted Petitioner’s waiver of the conflict of interest and permit
ted Petitioner to continue with
Bergrin’s office, through Ms. Saunders, as his trial counsel. Petitio
ner’s claim that he was never
made aware of the issue or conflict of interest is therefore directl
y belied by the record and is
patently without merit. Petitioner’s conflict argument therefo
re provides no basis for this Court
to take any additional action with regards to the prior order denyin
g Petitioner’s

14

§ 2255 motion.

III. PETITIONER’S RULE 60(b) MOTION
A. Legal Standard
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopen
ing of
his case, under a limited set of circumstances including fraud, mistake, and newly
discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). Where the particular circum
stances
dealt with in subsections one through five of the rule do not apply, as here, Rule 60(b)(6
) “permits
reopening when the movant shows ‘any
judgment.”

Id.

.

.

.

reason justifying relief from the operation of the

“The remedy provided by Rule 60(b) is extraordinary, and special

circumstances must justify granting relief under it.” Jones v, Citigroup, Inc., Civil
Action No.
14-6547, 2015 WL 3385938, at *3 (D.N.J. May 26, 2015) (quoting Moolenaar v. Gov’t
of the
Virgin Islands, 822 F.3d 1342, 1346 (3d Cir. 1987). A Rule 60(b) motion “may
not be used as a
substitute for appeal, and that legal error, without more cannot justify grantin
g a Rule 60(b)
motion.” Holland v. Holt, 409 F. App’x 494, 497 (3d Cir. 2010) (quoting Smith
v. Evans, 853
F.2d 155, 158 (3d Cir. 1988)). A motion under the rule may not be granted where
the moving
party could have raised his legal argument by means of a direct appeal. Id.

B. Analysis
Petitioner argues that he should receive relief from this Court’s prior order denyin
g his

§

2255 motion pursuant to Rule 60(b). Although this Court will hold an eviden
tiary hearing as to
one of Petitioner’s claims, because this Court denies Petitioner’s Rule
59(e) motion as to
Petitioner’s remaining habeas claim, the Court will address Petitioner’s Rule
60(b) motion in so
much as it applies to those claims for which this Court denied relief under
Rule 5 9(e). As this
15

Court has considered his Rule 59(e) motion, however, this Court will
deny that portion of
Petitioner’s 60(b) motion only intended to persuade this Court to rule
on that motion.
Petitioner raises only a single additional argument in his 60(b)
motion: that he never
received a Miller notice and was therefore entitled to have the
prior order dismissing his

§ 2255

motion vacated. Petitioner’s argument is misguided. In Miller, the
Third Circuit held that “upon
receipt of pro se pleadings challenging an inmate’s conviction or incarce
ration
a

—

whether styled as

§ 2255 motion or not a district court should issue a notice to the petitioner regarding the effect
—

of his pleadings.” United States v. Miller, 197 F.3d 644, 652 (3d
Cir. 1999). The purpose of the
holding of Miller was to ensure that pro se Petitioners did not have
their post-judgment criminal
motions unintentionally construed as habeas petitions and therefore
potentially lose their rights to
raise a single, all-inclusive habeas petition as required by AEDP
A. Id. at 650-52. The failure to
provide a Miller notice therefore “prevents the motion from counti
ng as a first

§ 2255 motion for

second or successive purposes.” Norwoodv. United States, 472
F. App’x 113, 116 (3d Cir. 2012).
Thus, where a Miller notice is not provided, the Petitioner is not
barred from bringing a second
petition bringing distinct claims within the one year statute of limitat
ions. The failure to provide
a Miller notice does not in any way impugn the validity of the distric
t court’s determination as to
the issues raised in the original petition, but rather merely preven
ts the AEDPA bar on second or
successive petitions from applying in the event that the petitio
ner files a second, distinct

§ 2255

motion. As such, whether Petitioner received a Miller notice or
not is immaterial to the validity
of this Court’s decision on his

§ 2255 motion. Even assuming arguendo that the notice provided

on the form petition on which Petitioner filed his motion was not

sufficient to comply with Miller’s

requirements, the Miller rule provides no support for the
assertion that the order denying
16

Petitioner’s motion should be vacated in its entirety. id.
5

Petitioner’s Rule 60(b) motion is

therefore without merit and will be denied.

IV. CONCLUSION

For the reasons stated above, Petitioner’s Rule 60(b) motion is DENIED, Petitioner’s Rule
59(e) motion is GRANTED IN PART and DENIED IN PART, and this Court will
order an
evidentiary hearing solely as to Petitioner’s claim that he received ineffective assistance

of counsel

in relation to the Government’s offer of a plea agreement. An appropriate order follow
s.

States District Judge

This Court recognizes that there exists some question as to whether the dictates of Miller
remain good law after the Court’s decision in Pliler v. Ford, 542 U.S. 225 (2004)
. See
Norwood, 472 F. App’x at 116 n. 1. As a determination as to the legitimacy of the Third
Circuit’s decision in Miller is beyond the authority of this Court, and is in any event
unnecessary
to resolve Petitioner’s claim, this Court expresses no opinion as to how Pliler affects
the Miller
rule. Likewise, because a Miller violation would not provide Petitioner the benefit
he seeks
under Rule 60(b), the Court need not and does not reach the question of whether
the notice
provided in the Clerk’s form motion paperwork for pro se Petitioners comports with
the
requirements of Miller.
17