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Tokley v. Ricci

United States District Court, D. New Jersey

January 12, 2018

DANA T. TOKLEY, Petitioner,
MICHELLE RICCI et al., Respondents.


          KEVIN MCNULTY, United States District Judge


         Petitioner pro se, Dana T. Tokley, is a state prisoner who brought this habeas proceeding under 28 U.S.C. § 2254. On March 30, 2017, 1 filed an order and opinion (ECF Nos. 69, 70) denying Mr. Tokley's motion under Federal Rule of Civil Procedure 60(b) (his second) for an evidentiary hearing seeking relief from the Court's denial of habeas relief in 2012. Now before the Court is another application (ECF No. 71), which I construe as a motion for reconsideration of my March 30, 2017 decision. For the reasons stated below, that motion will be denied.


         In 2000, a jury convicted Mr. Tokley of first-degree armed robbery and second-degree possession of a firearm for an unlawful purpose. In September 2009, Mr. Tokley filed his petition for a writ of habeas corpus. On January 20, 2012, District Judge Katharine S. Hayden issued an opinion and order denying Mr. Tokley's habeas petition. (ECF Nos. 39, 40.) Judge Hayden certified two issues for appeal. On October 16, 2013, her decision was affirmed by the U.S. Court of Appeals for the Third Circuit. (ECF Nos. 48, 49)

         In 2015, Mr. Tokley filed a motion seeking relief from Judge Hayden's habeas denial under Federal Rule of Civil Procedure 60(b). (ECF No. 51.) On June 23, 2015, 1 denied this motion as untimely and also unmeritorious. (ECF No. 58.)

         In the meantime, Mr. Tokley filed a second application under Rule 60(b)(2) for an evidentiary hearing to consider newly discovered evidence which, in his view, undermined the reliability of his conviction. (ECF No. 56.) The background is that Jose Martinez, the cooperating witness who identified Mr. Tokley as a perpetrator of the underlying robbery, admitted at trial that he hated Tokely because, among other things, Tokely had "influenced" Elliott Rosario to kill someone, who turned out to be the "wrong guy." (Rosario, too, was subsequently killed.)[1] (Id.; ECF No. 56-1; ECF no.48 at 2) Mr. Tokley asserted that there was "newly discovered] evidence, " namely that someone other than Rosario (Juan Rivera-Velez) had been charged and convicted of the murder of Miguel Batista murder in 2009. (ECF No. 56.) The implication is that Batista was the "wrong guy" referred to in the testimony.

         In an opinion and order issued March 30, 2017, 1 found that the application constituted an unauthorized second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A). (ECF No. 69, at 5-6.) 1 declined to transfer the motion to the Court of Appeals for treatment as a request to file a second or successive petition. The alleged newly discovered evidence, I wrote, "was available to [Mr. Tokley] during the pendency of his habeas petition." (Id. at 6 n.l.) I noted, however, that Mr. Tokely on his own "remain[ed] free to seek authorization to file a second or successive habeas petition from the Third Circuit." (Id.)

         Even if the Court had jurisdiction to consider Mr. Tokley's successive application, I noted, it would be untimely under Rule 60(b)(2), because it was filed more than a year after the entry of judgment. (Id. at 6.) I additionally noted that this "newly discovered evidence" could not constitute extraordinary circumstances to justify the late raising of a Rule 60(b)(6) argument. Tokley's September 2009 habeas petition, I wrote, directly alluded to the fact that Rivera-Velez had been charged with Batista's murder. (Id. at 6-7; see also App. for Habeas Corpus, ECF No. 5, at 19 (citing 06-cr-445 (United States v. Rivera-Velez).)

         Mr. Tokley then filed another application, which I construe as an application for reconsideration of my March 30, 2017 opinion and order. (ECF No. 71.) Reading his application liberally, it contains an argument that my March 30 decision misconstrued the issue. The information that Rivera-Velez was charged with the murder was available to him in September 2009 and indeed was cited in the habeas petition. What is "new" arises from events that occurred two months later; the "newly discovered evidence" may be that Rivera-Velez was convicted of the Batista murder in November 2009. (Id.)[2] I will therefore consider whether the omission of that information from my earlier opinion merits reconsideration.


         Motions for reconsideration are permitted under Local Civil Rule 7, l(i), but reconsideration is considered an extraordinary remedy and is granted only sparingly. See Buzz Bee Toys, Inc. v. Swimways Corp., 20 F.Supp.3d 483, 515 (D.N.J. 2014); Andreyko v. Sunrise Senior Living, Inc., 993 F.Supp.2d 475, 477 (D.N.J. 2014). A party seeking reconsideration must "set[] forth concisely the matter or controlling decisions which the party believes the Judge ... has overlooked." L, Civ. R. 7.l(i). Motions for reconsideration are not intended as an opportunity to reargue old matters or raise issues that could have been raised previously. See Andreyko, 993 F.Supp.2d at 477-78; P. Schoenfeld Asset Mgm't LLC v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001). Thus, the movant has the burden of demonstrating one of three bases for reconsideration: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [rendered its original decision]; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

         This high standard for reconsideration, however, is not critical in this case. I have reexamined the issues posed by Mr. Tokely and determined that it would not alter the basis for my prior decision.

         IV. ...

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