United States District Court, D. New Jersey
July 5, 2005.
PAUL KAMIENSKI, Petitioner,
ROY HENDRICKS, Administrator, New Jersey State Prison, Respondent.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
This matter comes before the Court on Petitioner Paul
Kamienski's motion for reconsideration [docket #36] of the Order
and Order and Opinion in this matter signed by the Court on May
The relevant facts and procedural history of this case are
well-known to the parties and will not be repeated here except as
pertinent to the instant motion for reconsideration.
Petitioner filed a petition for a writ of habeas corpus on June
26, 2002. On October 15, 2003, Petitioner filed an amended and
In an Opinion and Order dated May 10, 2005 this Court ordered
that (1) Petitioner's amendments of Grounds One Two, Three, and
Four will be treated as if they were filed at the time of the
original petition; (2) Petitioner's Ground Five for
Brady-Giglio Violation Re FBI Lab Documents and his Ground Six for Ineffective Assistance of
Counsel are both dismissed as they are time-barred pursuant to
28 U.S.C. § 2244(d)(1); (3) the filing date of Petitioner's
Amendment and Supplement to his petition remains October 15,
2003; and (4) the Court will not entertain any requests for
discovery until after Respondent has answered the petition.
Petitioner contends that the Court, in reaching these
conclusions, made certain erroneous findings and overlooked
several factual matters and legal arguments. Specifically,
Petitioner appears to be challenging the Court's dismissal of
Ground Five for Brady-Giglio Violation Re FBI Lab Documents.
I. Standard of Review:
Motions for reconsideration are governed by Local Rule
That Rule provides, in part, that "[a] motion
for reconsideration shall be served and filed within 10 business
days after the entry of the order or judgment on the original
motion by the Judge or Magistrate Judge." D.N.J.L. Civ. R.
7.1(i). The "purpose of a motion for reconsideration 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).
Reargument is not a means by which to obtain a proverbial
second bite of the apple. See Chiniewicz v. Henderson,
202 F. Supp. 2d 332, 334 (D.N.J. 2002) (noting that a motion for reconsideration "is not an opportunity . . . to introduce legal
theories that a party failed to include in its initial motion").
Indeed, Rule 7.1(i) permits a reconsideration only when
"dispositive factual matters or controlling decisions of law"
were presented to the Court but were overlooked. See Resorts
Int'l v. Great Bay Hotel and Casino, 830 F. Supp. 826, 831
(D.N.J. 1992); Khair v. Campbell Soup Co., 893 F. Supp. 316,
337 (D.N.J. 1995). Accordingly, the Court has reconsidered its
previous rulings only where convinced that germane information
was initially overlooked.
Relief pursuant to Rule 7.1(i) is "an extraordinary remedy"
that is to be granted "very sparingly." NL Indus. Inc. v.
Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996);
Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).
Indeed, "mere disagreement with a court's decision normally
should be raised through the appellate process and is
inappropriate on a motion for reargument." Yurecko v. Port Auth.
Trans. Hudson Corp., 279 F. Supp. 2d 606, 609 (D.N.J. 2003)
(quotation and citation omitted).
Accordingly, a motion under Rule 7.1(i) may be granted only if:
(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. North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir 1995).
II. Factual Findings:
Petitioner points out several factual statements made in the
Court's opinion that he claims were mistaken. Specifically,
Petitioner contends that the Court: (1) incorrectly stated that
the FBI performed tests on hairs taken from Kamienski along with
fibers and hairs from Kamienski's boat (Pet. Br. for Recons. at 7); (2) mistakenly stated that the
Podolak notes concluded that no transfer of textile fibers
between the rug on Kamienski's boat and the blankets wrapped
around the victims was detected, when the rug was actually from
Alongi's boat (Id.); (3) understated the significance of the
Podolak notes as set forth in Presley's declaration by failing to
mention Presley's conclusion that the two blankets had been in
contact with the victims prior to the homicides and that the two
blankets had been stored in the victims' own car rather than
Kamienski's boat (Id. at 8); and (4) did not discuss or give
appropriate weight to the many other aspects of the Podolak notes
that Presley deemed significant (Id. at 8-9).
The Court now recognizes that some of Petitioner's factual
clarifications are indeed correct. The Court's opinion did indeed
incorrectly state that Petitioner's Brady claim relied on the
FBI tests performed on "hairs taken from the two victims, hairs
taken from Kamienski, and tests on blankets wrapped around the
victims, as well as two blankets from Kamienski's boat, along
with various fibers and hairs from Kamienski's boat and the
victims' car." (Opinion at 12 (emphasis added)). The Opinion also
incorrectly stated that the Podolak notes concluded that "no
transfer of textile fibers between the rug on Kamienski's boat
and the blanket wrapped around one of the victims was detected."
(Id. at 13 (emphasis added)). Upon further consideration, the
Court recognizes that there is no evidence that any tests were
ever performed on hairs taken from Kamienski, nor were any
fibers, hairs, or rugs taken from Kamienski's boat.
However, the Court believes that this correction, if anything,
hurts Petitioner's position. The Court had assumed that more
tests were done which tended to show a lack of connection between
Kamienski and the victims. As Petitioner correctly points out,
however, there could not have been any tests done by the FBI to
attempt to connect Kamienski's hair or his boat to the victims, because the FBI did not take any samples from Kamienski
or his boat. At the very least, the fact that Petitioner's hair
was not tested does not help Petitioner's argument that the FBI
had Brady materials showing that he was not connected to the
blankets found on the victims.
Furthermore, while the Court recognizes that there were some
points in the opinion in which the Court confused Kamienski's
boat with that of Alongi, the Court is convinced that it
correctly referred to Kamienski's boat in the only context in
which it actually mattered. Specifically, during Detective
Thompson's cross examination, Kamienski's trial counsel asked if
the State was capable in 1983 of going to Kamienski's boat to
determine if the blankets wrapped around the victims came from
that boat. (Opinion at 14).*fn2 It is true that Detective
Thompson responded that he was capable but did not actually take
any samples nor do any tests on Kamienski's boat. However, soon
afterward, the testimony discussed the blankets that were tested
as well as the "extensive list" of items sent to the FBI for
testing. Significantly, this was all in the context leading up to
Thompson's ultimate conclusion that nothing the FBI had done or
tested served to connect Kamienski to the victims.
Petitioner's contentions that the Court understated the
significance of the Podolak notes as interpreted by Presley
appear to stem from Petitioner's mischaracterization of Detective
Thompson's testimony. The testimony cited in the opinion was the
following cross examination of Detective Thompson by Kamienski's
attorney, Thomas J. Cammarata:
Q. Suppose for example these blankets came from a
boat such as depicted in 28 and 29 for
identification, [Kamienski's boat] and they were
inside, in the enclosed area of this boat. You were capable, in
October of 1983, of going to that boat and doing your
testing and attempting to determine whether in fact
there was anything on that boat which would
scientifically prove that these two blankets, 11a and
11b, came from that boat? You were capable of doing
that, weren't you?
A. Yes sir.
Q. And you were never asked to do that?
A. That's correct sir.
Q. Well you sent a number of items to the FBI for
testing; is that correct?
A. That is correct, sir.
(Trial Trans. 5T 98-22 to 99-11).
. . . .
Q. Now, let me show you DK-1 for identification,
which is a letter dated October 13th, 1983, and
ask you, do you recognize that?
A. Yes. This is the letter that I offered.
Q. Okay. And this is a letter, as I said, dated
October 13th, 1983, and it is directed to the FBI
Laboratory, is that correct?
A. That is correct.
Q. And what you were basically doing in this letter
is submitting a list of items for analysis by the FBI
A. That is correct.
Q. And what were you looking for at this time?
A. We were looking for a cross match of fibers,
hairs, possible blood, and an identification, I
believe, of the projectiles.
Q. How many blankets did you submit to the FBI on
October 13th, 1983; do you remember? Or if you
A. I would have to refer to the report.
Q. You can just read it to yourself.
(5T 100-9 to 101-3) (emphasis added) (the Court notes
that while Detective Thompson never ended up
answering the question about how many blankets were
submitted, exhibit DK-1 reveals that one rust colored
blanket taken from each of the victims was submitted,
and that two reddish brown color blankets received
from Kamienski were submitted as well (see Resp.
Exh. RA 49-52)).
. . . .
Q. Detective Thompson, I think I left off asking you,
or I started to ask you questions about DK-1 for
identification. And did you have a chance or take a
minute to look at that, if you will.
THE COURT. All right, Mr. Cammarata. Q. Now, that lists all of the items that you sent to
the FBI Lab on October 13th, 1983; correct?
A. That's correct, sir.
Q. And it's a pretty extensive list, would you say?
It has at least some approximately fifty items;
A. That's correct.
Q. And what you were doing, so it's clear is, you
were sending items that you collected during the
course of this investigation and your participation
in the investigation, such as hair samples,
fingernail scrapings, things you took off the boat
that you described, and you were sending them to the
FBI so that the FBI could do a comparison for you;
A. That is correct sir.
Q. And what you were trying to do is get comparisons
between items, for example, taken off the boat, and
items found on the victim, such as hair or whatever;
A. That is correct, sir.
Q. And as I understand it, everything that you
submitted came back negative; correct?
A. That is also correct.
Q. So that when we say it came back negative, there
were no comparisons that were able to be made;
A. That is correct.
Q. And that would be really true of everything
that you sent to the FBI with regard to this entire
A. That is also true.
(5T 103-23 to 105-8) (emphasis added) (see also,
Opinion at 14-16).
Petitioner argues that the cited Thompson testimony was merely
an acknowledgment that "the FBI forensic tests as to whether
Alongi's small motor boat was connected to the murders were
inconclusive (in his words, `negative')." (Pet. Br. for Recons.
at 4). This characterization is flawed for several reasons.
First, Cammarata had just clarified that Thompson sent items
collected during the course of the investigation, including the
blankets wrapped around the victims and those submitted by
so that the FBI could attempt to show
comparisons between the items. Therefore, to say that Thompson's reply
referred only to Alongi's small motor boat is simply not
Additionally, the testimony here was that the State wanted to
"get comparisons between items" but that "there were no
comparisons that were able to be be made" and that therefore,
"everything [they] submitted came back negative." This is not
testimony of an "inconclusive" result, as Petitioner
characterizes it. This is clearly testimony that tests were done
for the express purpose of showing comparisons between various
objects with the result being that those objects could not be
compared to one another. A test of this nature is not conclusive
only if it shows that comparisons can be made; rather, it can
conclusively find that no comparison can be made between the
items. Petitioner's interpretation of this testimony would
invariably lead to the conclusion, for example, that if
Kamienski's DNA were tested for comparison to DNA on the victims'
blankets, and the testimony was that they could not be compared,
the "negative" result would mean that the test was
"inconclusive." Such an interpretation is logically unsound.
Rather, the testimony that no comparisons could be made was a
statement that the conclusive FBI results could show no
connection between anything taken from any of the suspects and
anything taken from either of the victims. Furthermore,
Petitioner cites the transcript at T4, p. 53:10-13*fn4 for
the proposition that Thompson testified that "the FBI reports
concluded there was insufficient questioned evidence recovered
from Alongi's boat (in the form of blood, hair and fibers) to
make any meaningful comparisons with the known evidence obtained from
the victims and the crime scene. (Pet. Br. for Recons. at 4). In
fact, lines 3-13 on page 53 of that transcript read as follows:
Q. Okay. I'm talking about the fibers, for example,
and let me just ask, did you ask the FBI to analyze
if fibers of this blanket and fibers of the sleeping
bag were the same fibers that you found six months
these microscopic fibers that you found six months
later on that vessel?
A. Yes, we did, sir.
Q. And what did their report indicate on that point?
A. There was either insufficient quantities for
analysis, or there was no match made.
(5T 53:3-13). Although Petitioner chose focus only on the words
"insufficient quantities for analysis" in this testimony and
ignore the rest of that sentence, the Court recognizes that
Detective Thompson did indeed testify as well that no matches
Petitioner argues that the Court overlooked the fact that
Presley's expert opinion goes further than merely concluding that
the blankets wrapped around the victims were not from Kamienski's
boat, stating also that they were actually "most likely" from the
victims' own car. (Pet. Br. for Recons. at 8). While this is
indeed what Petitioner's expert has opined, it does not change
the Court's conclusion that Petitioner was put on notice of any
such potentially exculpatory Brady materials by Detective
Thompson's testimony. It is clear that Kamienski's trial counsel,
and the Court bears in mind that it was Kamienski's own trial
counsel conducting this cross examination, understood Thompson's
testimony to mean that the FBI forensic tests could not connect
Kamienski, or any other defendant, to the victims. This is
evident from his follow-up question to Detective Thompson's
acknowledgment that all testing had come back negative.
Kamienski's lawyer asked "[a]nd that would really be true of
everything that you sent to the FBI with regard to this entire investigation; correct?"
to which Thompson replied, "[t]hat is also true." ((5T 103-23 to
105-8) (emphasis added) (see also, Opinion at 14-16)).
Thompson's testimony that the forensic testing could not connect
Kamienski to the victims put Petitioner on sufficient notice that
if he wanted to find out the details of those tests and their
results to try to hypothesize as to where the blankets
originated, he should have asked for them sooner.
In short, Petitioner's knowledge of the failure in the FBI's
forensic tests to establish a positive correlation between the
defendants and the victims put Petitioner on notice that further
investigation might yield positive results for him. Petitioner
put it best in his brief, when he conceded that
At most, Kamienski had knowledge that (1) two
blankets provided by him, along with other crime
scene evidence, had been submitted to the FBI for
hair and fiber testing, (2) certain forensic tests
relating to Alongi's boat had come back inconclusive,
and (3) a petroleum distillate test on the recovered
towel was negative and potentially exculpatory. The
combination of this information certainly would have
caused reasonable trial counsel to anticipate test
results relating to the subject matter of the Podolak
(Pet. Br. for Recons. at 12) (emphasis added). While Petitioner
couches this statement with the words "at most," he does not and
cannot dispute the fact that Kamienski had knowledge of all of
that information prior to, or during trial. As he acknowledges
then, he certainly should have anticipated the test results
relating to the subject matter of the Podolak notes. Yet, he did
not file his Brady claim in a petition for habeas corpus within
one year of discovering this information, and it was thus
Therefore, although the Court recognizes that its opinion
included several mistakes of fact, this itself is insufficient to
warrant a reconsideration of the Opinion and Order, as the errors
were not dispositive of the Court's legal conclusions. See,
e.g., Resorts Int'l v. Great Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992)
(reconsideration should be granted only when "dispositive
factual matters or controlling decisions of law" were presented
to the court but were overlooked.) (emphasis added); Holzman v.
The World Book Co., Inc., 2001 WL 1450599 (E.D. Pa. Nov. 13,
2001) ("Despite the discovery of a mistake of fact, `the Court
can only disturb its prior ruling if the newly apparent facts
would alter the Court's legal conclusions.'").
III. Overlooked Legal Arguments:
Petitioner also asserts that the Court's opinion overlooked two
"critical and interrelated legal arguments" on his behalf. The
first argument was that the State had an affirmative duty under
Brady to seek out exculpatory evidence in related investigative
files and produce it to the defense. The second was that
Petitioner's trial attorney had the right to reasonably rely on
the State's representations that it had produced all relevant
evidence, and Petitioner should therefore be excused for failing
to bring his Brady claim earlier.
Petitioner contends that the Court's opinion "does not address
Kamienski's contention, based on Kyles v. Whitley,
115 S.Ct. 1555, 1565-68 (1995), U.S. v. Perdomo, 929 U.S. 967, 970-71 (3d
Cir. 1991) and other authority, that the State had an affirmative
duty under Brady to seek out all exculpatory evidence in
related investigative files including the Podolak Notes and
to produce it to the defense." (Pet. Br. for Recons. at 10).
Petitioner is correct that the Court did not address this
contention in the opinion. The reason, however, is that these
cases relate to the underlying merits of Petitioner's Brady
claims rather than the statute of limitations issue that the
Court was addressing in its opinion. As Petitioner points out,
this argument was raised in Petitioner's Sur-Reply Memorandum of
Law dated November 30, 2004, item 4 at page 2, which stated in full, "`OCPO had no independent obligation to seek and
produce the Notes because they were in FBI files.' (12, A 12-13)
Wrong. Black letter law holds otherwise. Ex. E." Petitioner's
Exhibit E4 then accurately summarizes the holding in Kyles v.
Whitley, 115 S.C.t 1555, 1565-68 (1995) as follows:
Prosecutor remains responsible for duty under Brady
to disclose favorable evidence to defendant,
regardless of whether police investigators failed to
inform prosecutor of evidence, as prosecutor can
establish procedures and regulations to insure
communication of all relevant information on each
case to every lawyer who deals with it.
Petitioner's Exhibit E5 then goes on to accurately summarize
the holding in U.S. v. Perdomo, 929 F.2d 967
, 970-71 (3d Cir.
1991) as follows:
In determining whether there has been a Brady
violation, court's inquiry should not be limited to
only the prosecutor's complicity, but should extend
to information available to the "prosecution team,"
including both investigative and prosecutorial
Even giving full credit to Petitioner's argument based on these
cases, the Court could at most find that the State indeed
violated its duty under Brady to produce the FBI notes to
Kamienski. However, this issue was not before the Court on
Petitioner's motion to amend his petition for habeas corpus, as
Petitioner first had to demonstrate that he brought this claim
within the statute of limitations period. Only then could the
Court consider the merits of whether or not the State in fact
committed a Brady violation. Therefore, this "overlooked"
argument had no bearing on the Court's legal conclusions, and it
will not be a basis for reconsideration.
Petitioner next contends that the Court similarly overlooked
corollary legal argument, based on Banks v. Dretke,
540 U.S. 668 (2004) (involving a "for cause"
exception to the AEDPA's exhaustion requirement and
procedural default bar), that Kamienski's trial
attorney had the right to reasonably rely on the
State's actual and constructive representations that
it had produced all relevant evidence including exculpatory material in
investigative files to the defense prior to trial
and therefore any failure by Kamienski to use FOIA to
obtain the Podolak Notes earlier is excused by the
State's conduct on which his attorney reasonably
(Pet. Br. for Recons. at 11).
Petitioner essentially argues that the "State's failure to
produce the Podolak Notes, combined with its express and implied
representations that all relevant evidence had been produced
eliminated trial counsel's need to `scavenge for hints of
undisclosed Brady material,'" regardless of the fact that
Petitioner should have anticipated the material's existence.
(Id. at 12). Therefore, Petitioner would have the Court
conclude that "[u]nder these authorities and under the
circumstances of this case, the one year statute of limitations
in Subsection D should be tolled indefinitely and any claim
filed within one year of the `actual knowledge' of the facts or
materials supporting the Brady materials should be deemed
timely." (Id.) (emphasis added).
As Petitioner correctly points out, Banks v. Dretke dealt
specifically with the "for cause" exception to the EADPA's
exhaustion requirement and procedural default rule.
540 U.S. at 6929-8. This Court's opinion, however, dealt with the one year
statute of limitations for habeas corpus petitions. Specifically,
this Court analyzed whether or not Petitioner's Brady claim was
filed within one year of "the date on which the factual predicate
of the claims presented could have been discovered through the
exercise of due diligence." See, 28 U.S.C. § 2244(d)(1)(D).
Although it may be true that under Banks, Petitioner might have
had "cause" for not bringing his Brady claim in State court, it
does not necessarily follow that he the could not have discovered
the basis for the claim "through the exercise of due
diligence."*fn5 On the contrary, the Court finds that any non-disclosures and/or assurances made by the State to
Petitioner prior to trial do not negate what was clearly revealed
to him at trial; specifically, Petitioner's trial counsel's cross
examination of Detective Thompson made it inescapably clear that
the State's forensic testing showed no connections between
Kamienski and the victims. Petitioner's trial counsel therefore
had clear notice at that point that the FBI conducted tests, the
results of which were favorable to Petitioner. This was not a
"connecting-of-the-dots type of notice" as Petitioner would like
to characterize it. (See Pet. Br. for Recons. at 12). Rather,
Petitioner had clear, unequivocal notice of the existence of the
very results he now wants to use to evidence that the blankets
wrapped around the victims were not his. To say that "the
existence of the Podolak Notes `could not have been known' at any
time prior to the receipt of the FBI FOIA materials, as judged
from the perspective of defense counsel exercising reasonable
diligence"*fn6 is thus factually inaccurate. To go further
and say that "the one year statute in Subsection D should be
tolled indefinitely"*fn7 under these circumstances is
Therefore, this second "overlooked" argument had no bearing on
the Court's legal conclusions, and it will likewise not be a
basis for reconsideration.
IV. Actual Innocence:
Petitioner also seeks to revisit the Court's determination that
Petitioner's allegation of "actual innocence" was insufficient to
allow review of his time-barred Brady claims. To begin with, the Court notes that it gave Petitioner an
opportunity to brief the issue of "actual innocence," and
Petitioner did so in a brief dated March 15, 2005. Nowhere in
Petitioner's current Brief in support of his Motion for
Reconsideration does Petitioner suggest that the Court overlooked
a dispositive factual matter or controlling decision of law that
it had previously presented to the Court on this issue. Rather,
Petitioner is attempting to present a new theory as to why the
Court should "revisit" the issue of Actual Innocence. The Court
assumes therefore that Petitioner must be relying on the "it is
necessary to . . . prevent manifest injustice" basis for
However, Petitioner's new argument is unpersuasive. Petitioner
did not previously, and does not now demonstrate to the Court why
it is "more likely than not that no reasonable juror would have
convicted him in light of the new evidence." Hubbard v.
Pinchak, 378 F.3d 333, 340 (3d Cir. 2004). Petitioner merely
suggests that his additional, cumulative, newly discovered
evidence mixed with his pre-existing helpful evidence effectively
bolsters his claim of actual innocence. (Pet. Br. for Recons. at
13). The jurors heard Detective Thompson's clear testimony, and
Petitioner has not shown how his additional evidence, which
further "augmented" this testimony, and further hurt witness
Duckworth's testimony, would have more likely than not convinced
the jury to find him not guilty.
Furthermore, Petitioner has not demonstrated to the Court that
he is "factually innocent." See Bousley v. United States,
523 U.S. 614, 623-24 (1998) ("`actual innocence' means factual
innocence, not mere legal insufficiency"). At most, he has
attempted to attack the credibility of a State witness who had a
significant impact on his conviction. This is not the same as demonstrating that Kamienski factually did not commit the crimes
for which he was convicted.
In short, Petitioner has not shown that he is actually innocent
such that the Court should review his time-barred Brady
claim.*fn9 Furthermore, he has not demonstrated that the
Court made a manifest error of law or fact such that it could
grant reconsideration on this issue. Therefore, the Court will
not reconsider the issue of "actual innocence."
For the foregoing reasons, the Court will DENY Petitioner Paul
Kamienski's motion for reconsideration [docket #36] of the Order
and Order and Opinion in this matter signed by the Court on May