The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon motions by pro se
Plaintiff Victor Gonzalez ("Plaintiff") to alter/amend judgment
pursuant to Federal Rule of Civil Procedure 59(e) and Local Civil
Rule 7.1(g), and to make new findings pursuant to Federal Rule of
Civil Procedure 52(b). Both motions relate to the Court's Order
and Opinion dated August 30, 2005 (Bissell, J.), denying
Plaintiff's petition to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255. Pursuant to Rule 78 of the Federal Rules
of Civil Procedure, no oral argument was heard. After carefully
considering the submissions of Plaintiff, and based upon the
following, it is the finding of the Court that Plaintiff's
motions are denied.
On November 7, 1996, Plaintiff was convicted of RICO, RICO
conspiracy and drug conspiracy charges. On March 18, 1997, the
Honorable Maryanne Trump Barry sentenced Plaintiff to three
concurrent terms of life imprisonment. The conviction was
affirmed on appeal on March 13, 1998. On March 12, 1999,
Plaintiff filed a pro se petition for relief pursuant to 28
U.S.C. § 2255. In light of the elevation of Judge Barry to the Court of
Appeals, the motion was reassigned to the Honorable John W.
Bissell. On August 30, 2005, Judge Bissell issued an Order and
Opinion denying Plaintiff's petition and dismissing it with
prejudice. On September 19, 2005, Plaintiff filed two motions: a
motion to amend/alter the judgment and a motion to make new
findings. In light of Judge Bissell's retirement, the motions
were reassigned to this Court.
A. Plaintiff's Motion to Alter/Amend Judgment
Plaintiff's motion to alter/amend judgment seeks relief
pursuant to 59(e). This is commonly known as a motion for
reconsideration. Motions for reconsideration in this District are
governed by Local Civil Rule 7.1(g). See U.S. v. Compaction
Sys. Corp., 88 F.Supp. 2d 339, 345 (D.N.J. 1999) (Hedges,
U.S.M.J.). A motion pursuant to Local Rule 7.1(g) 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. Database America, Inc. v.
Bellsouth Advertising & Pub. Corp., 825 F.Supp. 1216, 1220
(D.N.J. 1993). Such relief is "an extraordinary remedy" that is
to be granted "very sparingly." See NL Indus. Inc. v.
Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996).
Local Rule 7.1(g) governing reconsideration does not
contemplate a recapitulation of arguments considered by the court
before rendering its decision. See 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); Carteret Sav. Bank, F.A. v. Shushan,
721 F.Supp. 705, 709 (D.N.J. 1989). Rather, the rule 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). In other words, a motion for reconsideration is not an
appeal. It is improper on a motion for reconsideration to "ask
the court to rethink what it ha[s] already thought through
rightly or wrongly." Oritani Sav. & Loan Ass'n v. Fidelity &
Deposit Co., 744 F.Supp 1311, 1314 (D.N.J. 1990).
B. Plaintiff's Motion to Make New Findings
Plaintiff also has filed a motion to make new findings under
Federal Rule of Civil Procedure 52(b), a request substantially
similar Plaintiff's 59(e) motion. Rule 52(b) provides: "[o]n a
party's motion filed no later than ten days after entry of
judgment, the court may amend its findings-or make additional
findings-and may amend the judgment accordingly." Typically,
parties seek relief under Rule 52(b) after a bench trial or where
summary judgment has been granted. However, a motion to amend
findings of fact is appropriate in habeas proceedings, where the
legal analysis may depend on the underlying facts. Gutierrez v.
Ashcroft, 289 F.Supp.2d 555, 561 (D.N.J. 2003) (citing 9 Moore's
Federal Practice § 52.10[b].)
A. Motion to Alter/Amend Judgment
In support of his argument for reconsideration, Plaintiff sets
forth two reasons why he believes that the Court committed a
clear error of law in its August 30, 2005 Order and Opinion.
First, Plaintiff states the Court committed a clear error of law
by failing to interview and call witnesses. (Pl's Mot. To
Alter/Amend at 10). This issue was specifically addressed in
Judge Bissell's August 30, 2005 Opinion: Mr. Gonzalez . . . argues that his trial attorney
failed to interview and call witnesses which Mr.
Gonzalez suggested he should call. But his own papers
demonstrate that his attorney exercised a
traditional, legitimate function in evaluating
whether such witnesses would help this defense. While
Gonzalez may disagree with that strategic choice . . .
his argument does not demonstrate any significant
abdication of professional responsibility, nor is it
conduct which is otherwise below any objective
standard of reasonableness.
Gonzalez v. United States, Civil Matter No. 99-1183 (JWB), *5
(D.N.J. August 30, 2005). Judge Bissell also addressed
Plaintiff's claims that he was provided with ineffective
sentencing counsel, ...