BARTHOLOMEW v. RICCI et al

Filing 29

OPINION filed. Signed by Judge Freda L. Wolfson on 9/20/2013. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
GREGORY J. BARTHOLOMEW,
:
Petitioner,
v.
:
MICHELLE RICCI, et al.,

Civ. Action No. 10-3666 (FLW)

:

OPINION

Respondents.
:
________________________________
APPEARANCES:
Gregory J. Bartholomew, Pro Se
420190/987301A
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Roberta DiBiase
Ocean County Prosecutor’s Office
119 Hooper Avenue
Toms River, NJ 08753
Attorney for Respondents
WOLFSON, District Judge
On November 21, 2011, this Court entered an Opinion and
Order dismissing Petitioner’s application for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, as untimely (ECF Nos. 17,
18). On December 27, 2011, Petitioner filed a motion to reopen,
which was denied on July 25, 2012 (ECF Nos. 20, 21).
Petitioner’s appeal to the Court of Appeals for the Third
1

Circuit was dismissed as untimely and for lack of jurisdiction
on December 3, 2012 (ECF No. 26).
Thereafter, Petitioner filed a motion for relief pursuant
to Federal Rule of Civil Procedure 60(b) which is now before
this Court (ECF No. 27). The motion is unopposed. While
Petitioner argues that he is entitled to equitable tolling, and
that his petition should be deemed timely, he has not
demonstrated that he is so entitled.

Nor does he otherwise

demonstrate that this Court’s prior rulings are in error.

Thus,

his Rule 60(b) motion must be denied.
BACKGROUND
The procedural history of Petitioner’s habeas petition is
set forth in the Opinion dismissing his case as untimely (ECF
No. 17). In sum, this Court found that Petitioner’s conviction
became final on December 8, 2003.

Prior to filing his post-

conviction relief (“PCR”) motion in state court, Petitioner
expended eight months of the one-year limitations period.
During the filing of the PCR motion, the limitations period was
tolled; however, after the New Jersey Supreme Court denied
certification on the PCR motion, Petitioner expended another
twelve months prior to filing this habeas petition.

Thus,

adding the eight months prior to the PCR motion to the twelve

2

months thereafter, Petitioner exceeded the one-year limitations
period.

(ECF No. 17 at pp. 7-8).

In this motion, Petitioner argues that his habeas petition
was not untimely because he:
made every effort to have his PCR filed earlier than
the eight months it took. Had it not been for the
Office of the Public Defender losing his trial file
and pertinent evidence that [was] contained in the
file, Movant’s PCR would have been filed immediately
after the New Jersey Supreme Court denied
Certification on his Direct Appeal, thereby
statutorily tolling the time limitation.
(ECF No. 27-2, Brief, pp. 9-10). Petitioner further notes that
he followed the directive of the Public Defender’s Office that
he “had one-year to file his habeas corpus petition from July
20, 2009.”

(Brief, p. 10). He argues that he “should not be

faulted for following the instructions of the Public Defender’s
Office when they misled the Movant into believing he had oneyear to file his habeas petition, when in fact, he didn’t.”
(Brief, p. 10).
DISCUSSION
A.

Motion for Reconsideration
While motions for reconsideration are not expressly

permitted by the Federal Rules of Civil Procedure, motions for
reconsideration are considered motions to amend or alter a
judgment under Fed. R. Civ. P. 59(e) or a motion for relief from
judgment under Fed. R. Civ. P. 60(b). Holland v. Simon Property
3

Group, Inc., 495 F. App’x 270, 273 (3d Cir. 2012). Here,
Petitioner brings his motion for reconsideration under Fed. R.
Civ. P. 60(b).
Federal Rule of Civil Procedure 60(b) provides that “the
court may relieve a party ... from a final judgment, order, or
proceeding” on the grounds of:
(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;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable;
(6) or any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
“The general purpose of Rule 60, which provides relief from
judgments for various reasons, is to strike a proper balance
between the conflicting principles that litigation must be
brought to an end and that justice must be done.” Boughner v.
Sec'y of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir.
1978). However, due to the strong interest in the finality of
judgments, “relief from a judgment under Rule 60 should be
granted only in exceptional circumstances.” Id. at 977; Patsy's
4

Italian Rest., Inc. v. Patsy's Ristorante Corp., CIV. A. 11–
05513 (JAP), 2013 WL 885168 (D.N.J. Mar. 8, 2013).
Petitioner contends that he is entitled to relief pursuant
to Rule 60(b) “in the interests of justice.”1

He argues that he

was misinformed by the Public Defender’s Office as to the amount
of time he had to file his habeas petition, however, that he was
misinformed is not sufficient to toll the limitations period.
While the Court of Appeals for the Third Circuit has permitted
equitable tolling, such tolling is only appropriate in
extraordinary circumstances, such as where it has been
established that the petitioner timely asserted his rights in
the wrong forum, see Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
1999), or the court has misled a party regarding the steps that
the party needs to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir.), cert. denied, 546 U.S. 957
(2005). Even where extraordinary circumstances exist, however,
“[i]f the person seeking equitable tolling has not exercised
reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation between

This Court notes that Petitioner does not set forth any
“mistake, inadvertence, surprise, or excusable neglect,” nor
does he provide an argument of newly discovered evidence, or
fraud, misrepresentations, or misconduct by an opposing party,
or any other justifiable reason to warrant such extraordinary
relief under Rule 60(b).
1

5

the extraordinary circumstances and the failure to file is
broken, and the extraordinary circumstances therefore did not
prevent timely filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d
Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d
Cir. 2000)), cert. denied, 539 U.S. 948 (2003).
Petitioner’s and counsel’s miscalculation of the remaining
time on the limitations period does not constitute extraordinary
circumstances.

Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert.

denied, 534 U.S. 944 (2001); see also Johnson v. Hendricks, 314
F.3d 159, 161, 163 (3d Cir. 2002), cert. denied, 538 U.S. 1022
(2003). Moreover, even if Petitioner was ignorant of the time
when the limitations period began to run and when his state
court judgment of conviction became final, ignorance of the law,
even for an incarcerated pro se petitioner, generally does not
excuse prompt filing. Ross v. Varano, 712 F.3d 784, 799-800 (3d
Cir. 2013). Courts have been loathe to excuse late filings
simply because a pro se prisoner misreads the law. Delaney v.
Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (“While judges are
generally lenient with pro se litigants, the Constitution does
not require courts to undertake heroic measures to save pro se
litigants from the readily foreseeable consequences of their own
inaction.”); see also Jones, 195 F.3d at 159–60.

6

Attorney error

also does not excuse late filing.

See Jenkins v. Superintendent

of Laurel Highlands, 705 F.3d 80, 90 (3d Cir. 2013).
In sum, Petitioner offers no excuse, extraordinary or
otherwise, to warrant application of equitable tolling. See
Fahy, 240 F.3d at 244; Jones, 195 F.3d at 159; Miller v. New
Jersey State Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998).
Nor does Petitioner's motion support reopening under Local
Civil Rule 7.1(i), which governs motions for reconsideration in
the District of New Jersey. Bowers v. Nat'l. Collegiate
Athletics Ass'n, 130 F. Supp.2d 610, 612 (D.N.J. 2001). Local
Rule 7.1(i) allows a party to seek reconsideration of a court's
decision if there are “matters or controlling decisions which
counsel believes the Judge ... has overlooked.” L. Civ. R.
7.1(i); see also Mendez v. New Jersey State Lottery Comm’n, Civ.
A. No. 11-6932 (FLW), 2013 WL 1629126 at *3 (D.N.J. Apr. 15,
2013) (citing Interfaith Cmty. Org. v. Honeywell Int'l, Inc.,
215 F. Supp.2d 482, 507 n.12 (D.N.J. 2002)). Reconsideration is
“an extraordinary remedy” that is to be granted “very
sparingly.” Interfaith Cmty. Org., 215 F. Supp.2d at 507.
A motion for such reconsideration may be granted only upon
finding: “(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the
court granted the motion ...; or (3) the need to correct a clear
7

error of law or fact or to prevent manifest injustice.” Max's
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
See also Andela v. Amer. Ass’n for Cancer Rsch., 389 F. App’x
137, 142-43 (3d Cir. 2010)(quoting same). Here, Petitioner fails
to provide any basis that this Court “overlooked” a factual or
legal issue that could alter the disposition of this matter.
Indeed, Petitioner has not presented any 1) changes in
controlling law; 2) overlooked factual issues; 3) newly
discovered evidence; or 4) clear error of law or fact that would
require a different determination by this Court to prevent a
manifest injustice. Petitioner's argument for reconsideration is
based primarily upon his assertion that he made a mistake as to
his calculation of the limitations period due to attorney error.
As noted above, this is not sufficient to equitably toll the
limitations period.
Furthermore, Petitioner’s assertion that his petition is
timely was previously rejected by this Court.

Local Civil Rule

7.1(i) does not permit parties to restate arguments that the
court has already considered. King v. Schultz, CIV. A. 08–2850
(NLH), 2012 WL 4505999 (D.N.J. Sept. 27, 2012). Thus, any
differences of opinion with this Court's decision should be
dealt with through the normal appellate process. Bowers, 130 F.
Supp.2d at 612 (citations omitted); Florham Park Chevron, Inc.
8

v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988);
see also Chicosky v. Presbyterian Medical Ctr., 979 F. Supp.
316, 318 (D.N.J. 1997); NL Industries, Inc. v. Commercial Union
Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) (“Reconsideration
motions ... may not be used to re-litigate old matters, or to
raise arguments or present evidence that could have been raised
prior to the entry of judgment.”). The Court cannot provide
Petitioner “with an opportunity for a second bite at the apple.”
Tishcio v. Bontex, Inc., 16 F. Supp.2d 511, 533 (D.N.J. 1998)
(citation omitted).
CONCLUSION
Based on the foregoing, Petitioner’s Motion for Relief
pursuant to Rule 60(b) is hereby denied. An appropriate Order
accompanies this Opinion.

s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: September 20, 2013

9