GREGORY J. BARTHOLOMEW, Petitioner,
MICHELLE RICCI, et al., Respondents.
Gregory J. Bartholomew, 420190/987301A Trenton, NJ, Pro Se.
Roberta DiBiase, Ocean County Prosecutor's Office, Toms River, NJ, Attorney for Respondents.
FREDA L. 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 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.
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 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 one-year to file his habeas petition, when in fact, he didn't." (Brief, p. 10).
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 Group, Inc., 495 F.Appx. 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, ...