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Hunterson v. DiSabato


June 10, 1999


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


This matter is before the Court on Respondents' Motion pursuant to Fed. R. Civ. P. 59(e) and Local Civ. R. 7.1(g) for Reconsideration of this Court's September 10, 1998 Order granting petitioner Neil Hunterson's Petition for a Writ of Habeas Corpus and ordering his immediate parole release. The Court has considered the September 14, 1998 submissions of the Respondents and Petitioner's September 24, 1998 Response thereto. As discussed below, the Court will grant the Motion for Reconsideration, and will reconsider its decision in order to formulate a proper remedy to afford petitioner habeas relief.


The facts underlying the case are laid out in this Court's Order of September 10, 1998. The procedural history since that Order was entered is as follows. On September 10, 1998, this Court found that Parole Board's decision to impose a five-year Future Eligibility Term ("FET"), and the Appellate Division's affirmance of that decision, was unreasonable and arbitrary. This Court therefore granted Hunterson's petition for a writ of habeas corpus and ordered his immediate parole release.

On September 14, 1998, the respondents submitted the instant Motion for Reconsideration, and in support submitted a Notice of Decision dated September 9, 1998, but based on a May 27, 1998 panel hearing, which reflects a denial of parole and the referral of petitioner's case to a three-member panel for establishment of an FET. This newest Notice of Decision relied upon a March 11, 1998 confidential psychological evaluation and concluded that petitioner was "as much of a risk to commit a new crime if released on parole today as [he was] when [he committed the original offense]". This Court stayed the September 10, 1998 Order after the Attorney General of New Jersey submitted these documents in camera for the Court's review. However, the Court notes that such documents were not part of the record at the time the September 10, 1998 Order was filed. *fn1 The respondents acknowledge as much when they state, "The September 9 panel decision and the confidential psychological evaluation and interview relied upon by the panel constitute significant new information not previously available to the court which directly bears on the need for reconsideration of the court's September 10 order."

The respondents also argue that even if a substantive due process violation had occurred in this case, the proper remedy would be a remand to the agency for reconsideration, not a prisoner release order. In the event the Court deems such a remand to be the proper remedy, respondents argue, petitioner has now received a hearing and has been denied parole. Respondents state that "this case now stands in a completely different posture as a result of the new decision just issued by the Adult Panel denying parole based in large part on the recent negative confidential psychological evaluation and interview."

Petitioner has opposed the Motion for Reconsideration, claiming that rather than follow this Court's Order to release petitioner, the respondents manufactured evidence presented to the Court in support of the instant motion, including a "back-dated" September 9, 1998 Notice of Decision, which petitioner did not receive until it was faxed to him on September 14, 1998. Petitioner further charges that the Affidavit of Andrew Consovoy submitted in support of the motion is perjurious.


The purpose of a motion for reconsideration pursuant to Rule 59(e) is to correct manifest errors of law or fact or to present newly discovered evidence, Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S. Ct. 2895, 90 L. Ed.2d 982 (1986), and, as such, a Rule 59(e) motion may be made for only one of three reasons: (1) an intervening change in the controlling law has occurred, (2) evidence not previously available has become available, or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Elizabethtown Water Co. v. Hartford Cas. Ins. Co., 998 F. Supp. 447, 459 (D.N.J. 1998); Smith v. City of Chester, 155 F.R.D. 95, 96-97 (E.D. Pa.1994); Database Am., Inc. v. Bellsouth Advertising & Publishing Corp., 825 F. Supp. 1216, 1224 (D.N.J. 1993); Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J.1992), aff'd 37 F.3d 1485 (3d Cir.1994).

The Court therefore finds that where evidence is not newly discovered or there exists no manifest errors of law, the motion for reconsideration must be denied because a motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised in connection with an earlier motion. See Database Am., 825 F. Supp. at 1220; Bermingham, 820 F. Supp. at 856; Weyerhaeuser Corp. v. Koppers Co., Inc., 771 F. Supp. 1406, 1419 (D. Md. 1991). "[A] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." In re Christie, 222 B.R. 64, 66 (D.N.J.1998) (citing Database Am., 825 F. Supp. at 1220). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and 'recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.' " Database, 825 F. Supp. at 1220; G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J.1990); see also Elizabethtown Water Co., 998 F. Supp. at 459; Egloff v. New Jersey Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J.1988) (denying motion for reconsideration where plaintiff failed to cite any pertinent case law or fact court may have overlooked). Nor is a motion for reconsideration properly grounded on a request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa.1993).

Similarly, the Court finds that a motion brought under Local Civ. R. 7.1(g) focuses on only those matters, factual or legal, which counsel believes the Court has "overlooked"; thus, this motion will succeed only where "dispositive factual matters or controlling decisions of law" were presented to the Court but not considered. Damiano v. Sony Music Entertainment, Inc., 975 F. Supp. 623 (D.N.J. 1997); Polizzi Meats, Inc. v. Aetna Life & Casualty Co., 931 F. Supp. 328, 339 (D.N.J. 1996); Resorts Int'l v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992); Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986). See also Tischio v. Bontex, Inc., 16 F. Supp.2d 511 (D.N.J. 1998)("[A party] cannot withhold data or detail in connection with the [original] Motion ..., wait for a decision on that motion and then attempt to dissect the decision and submit information which should have been presented earlier.").

Because a party may not submit evidence on a Motion for Reconsideration which was available to it prior to the issuance of the challenged order, see Pavlik v. Lane Ltd./Tobacco Exporters Int'l, 135 F.3d 876 n.2 (3d Cir. 1998), the Court will not consider the psychological report presented under seal in making its determination on the instant reconsideration motion. Nor will the Court consider the Affidavit of Andrew Consovoy which was presented. Such new information was not "newly discovered", and an exercise of due diligence would have put these documents before the Court at the time of its original decision in September of 1998. The Court found in its earlier decision that the Board's determination was arbitrary and irrational and that the Board failed to explain adequately its decision and the reasoning therefore. The new Affidavit and attached psychological evaluation appear to be a classic attempt at a "second bite at the apple" and, as such, will not be considered.

However, because the respondents rightly contend that the Court overlooked controlling decisions of law which hold that the proper remedy in a situation such as this one would have been something other than ordering petitioner's release, see, e.g., Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998), the Court will grant the instant motion and will reconsider its September 10, 1998 decision.

The problem now before the Court is fashioning the proper remedy to be applied. The respondents suggest that the remedy at the time of the original decision would have been to remand the case to the Parole Board with directions to set a new FET or to hold a new hearing immediately. Petitioner suggests that the appropriate remedy is reinstatement to parole status. However, since the September 10, 1998 Order of this Court was entered, petitioner received a new parole hearing and parole was denied. Further, the Court is mindful of the petitioner's belief that this case presents a political situation in which official misconduct and retaliation may occur at any time.

Because of the inference of unconstitutional retaliation and in order to assist petitioner in rebutting the psychological evaluation presented by the respondents, this Court appointed counsel to petitioner. Presently, petitioner and his attorney are working to secure an independent psychological evaluation and to discover other materials which could have relevance to the Board's latest decision. Still pending before the Court are several discovery requests made by petitioner, which the parties are attempting to resolve amicably, and a motion by petitioner for a Temporary Restraining Order and/or Preliminary Injunction seeking to prevent the respondents from amending N.J. Admin. Code § 10A:71-3.21(d), which petitioner is challenging as being unconstitutionally vague, until final disposition of this matter. Petitioner has also made a Motion to Vacate the September 15, 1998 Order Granting a Stay of the Writ of Habeas Corpus and for Immediate Release or Enlargement Pending Disposition of Further Proceedings. However, as discussed during a status conference in this matter, because of the sensitive nature of the "danger to the public" aspect raised by the confidential psychological evaluation in this case, the Court will deny that motion at this time.

In sum, it is this Court's intention to allow this case to proceed under its jurisdiction, perhaps to a hearing, to develop a complete record. Once discovery has been completed, the Court will reconsider its September 10, 1998 Order, as discussed both above and at the May 13, 1999 status conference. Thus, respondents' Motion for Reconsideration will be granted and the case will proceed under the jurisdiction of this Court. CONCLUSION

For the reasons set forth above,

IT IS ORDERED on this 10th day of June, 1999 that the respondents' Motion for Reconsideration is hereby GRANTED.

IT IS FURTHER ORDERED that petitioner's Motion to Vacate the September 15, 1998 Order Granting a Stay of the Writ of Habeas Corpus and for Immediate Release or Enlargement Pending Disposition of Further Proceedings is DENIED.


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