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Barone v. Brown

January 3, 2001


The opinion of the court was delivered by: Simandle, District Judge




This matter comes before this Court on petitioner's motion for reconsideration of this Court's Order of May 23, 2000 whereby the Court dismissed petitioner's application for habeas corpus relief because he was no longer in custody and off parole. Petitioner asserts that this Court erred in determining that it lacked jurisdiction over his habeas application simply because he was out of custody. For reasons that follow, petitioner's motion for reconsideration will be granted, and the Order dismissing the petition will be vacated.


The present motion for reconsideration stems from the 1991 conviction of petitioner, Richard Barone, for conspiracy to commit theft and for theft by unlawful taking. (Pet'r's Br. at 1.) Petitioner's conviction was reversed by the Appellate Division on March 4, 1996. State v. Barone, 280 N.J. Super. 102 (App.Div. 1996). (Id.) On March 10, 1997, the New Jersey Supreme Court reversed the Appellate Division and reinstated the convictions. State v. Barone, 147 N.J. 599 (1997). (Id.) Shortly thereafter, petitioner began to serve his sentence and was in custody when his petition for habeas corpus was filed in the United States District Court on June 9, 1997. (Id.) On July 9, 1997, the state court denied petitioner's application for bail pending appeal. (Id.) On November 21, 1997, petitioner was paroled. (Id.) On October 24, 1999, petitioner was released from parole. (Id.) His release from parole status prompted this Court's concern that he was no longer in a custodial status for purposes of securing post-conviction relief under § 2254.

On May 23, 2000, this Court sua sponte dismissed the petition without prejudice for lack of jurisdiction, citing the fact that the petitioner was no longer in custody. (Id.) Petitioner then filed the instant motion for reconsideration on June 20, 2000, and both sides have submitted supplemental briefing on the "in custody" issue and whether the conviction continued to have collateral consequences to the petitioner.


A. Reconsideration Standard

Local Civil Rule 7.1(g) requires that a motion for reargument shall be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "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.'" Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). Where no facts or cases were overlooked, such a motion will be denied, Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts International v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).

In the present situation of reconsideration of a sua sponte jurisdictional dismissal, the rule against considering newly presented facts should be relaxed because petitioner did not have a full opportunity to address the issue of the collateral consequences of his conviction before the Court entered the dismissal order.

B. The Requirement of Custody

The requirement of custody in habeas corpus jurisdiction is one of a number of threshold issues that must be satisfied before a federal court may consider a claim on its merits. 28 U.S.C. § 2254(a). The determination as to whether or not a petitioner is in custody is dependent upon his custody status on the date he filed the petition. This requirement has been clarified by the Supreme Court to mean that custody status is determined at the point of filing: "The federal habeas corpus statute requires that the applicant must be in custody when the application for habeas corpus is filed." Carafas v. LaVallee, 391 U.S. 234, 238 (1968); accord Pringle v. Court of Common Pleas, 744 F.2d 297 (3d Cir. 1984). Therefore, if a petitioner is in custody at the time he files his petition, the federal court has jurisdiction for the purposes of habeas review.

The definition of custody for purposes of habeas review is not limited to incarceration alone. "Custody . . . has been liberally defined to include persons on parole, those released on their own recognizance pending appeal, and those who have been released from ...

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