United States District Court, D. New Jersey
Carnell Gibbs Petitioner, pro se
J. Santoliquido, Esq. James F. Smith, Esq. Atlantic County
Prosecutor's Office Counsel for Respondents
L. HILLMAN, U.S.D.J.
before this Court is Petitioner Carnell Gibbs'
(“Petitioner”) Motion to File Reconsideration as
Within Time. ECF No. 68. Also pending is Petitioner's
Motion for Reconsideration, id., of this Court's
Opinion and Order denying habeas relief under 28 U.S.C.
§ 2254. ECF Nos. 66, 67. Respondents have not filed an
opposition. For the reasons stated below, the Motion to File
Reconsideration as Within Time is GRANTED, and the Motion for
Reconsideration is DENIED.
February 9, 2011, Petitioner filed a habeas petition with the
Court. ECF No. 1. The Court dismissed the Petition as
time-barred under 28 U.S.C. § 2244(d). ECF Nos. 18, 19.
Petitioner filed a motion for reconsideration, which the
Court denied. ECF No. 24. Petitioner appealed to the Third
Circuit Court of Appeals, which vacated the Court's
judgment and remanded the matter for further proceedings. ECF
No. 40. On April 30, 2018, the Court denied Petitioner's
habeas Petition on the merits. ECF Nos. 66, 67. On May 15,
2018, Petitioner filed the instant Motions with the
Court. ECF No. 68. Petitioner also requests that
the Court appoint him pro bono counsel and issue a
certificate of appealability.
brought pursuant to Federal Rule of Civil Procedure 59(e), or
pursuant to Local Civil Rule 7.1(i), the scope of a motion
for reconsideration is extremely limited, and such motions
should only be granted sparingly. Blystone v. Horn,
664 F.3d 397, 415 (3d Cir. 2011) (discussing Rule 59(e));
see also Delanoy v. Twp. Of Ocean, No.
13-1555, 2015 WL 2235103, at *2 (D.N.J. May 12, 2015)
(discussing Local Civil Rule 7.1(i)). An order of the Court
may be altered or amended pursuant to such a motion only
where the moving party establishes one of the following
grounds for relief: “(1) an intervening change in the
controlling law; (2) the availability of new evidence that
was not available when the court [issued its order]; or (3)
the need to correct a clear error of law or fact to prevent
manifest injustice.” Delanoy, 2015 WL 2235103
at *2 (quoting Max's Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)); see
also Blystone, 664 F.3d at 415 (applying same standard
to 59(e) motions). In the context of a reconsideration
motion, manifest injustice will generally arise only where
“the Court overlooked some dispositive factual or legal
matter that was presented to it, ” or committed a
“direct, obvious, and observable” error.
Brown v. Zickefoose, No. 11-3330, 2011 WL 5007829,
at *2, n.3 (D.N.J. 2011). Reconsideration motions may not be
used to relitigate old matters, raise new arguments, or
present evidence or allegations that could have been raised
prior to entry of the original order. Delanoy, 2015
WL 2235103 at *2. As such, courts should grant a motion for
reconsideration only where its prior decision
“overlooked a factual or legal issue that may alter the
disposition of the matter.” Id.
Motion for Reconsideration, Petitioner appears to present one
argument, that the Court overlooked his claim that PCR
counsel was ineffective in connection with his decision not
to use information obtained from a ballistics expert. ECF No.
68 at 20-29. In support of his argument, Petitioner explains
that PCR counsel obtained a ballistics expert to conduct
testing on the State's ballistic evidence. ECF No. 68 at
22. He alleges that the State only turned over six of the
seven bullets found at the crime-scene. Id. He
further asserts that the expert report provided by the
ballistics expert was inconclusive as to whether all the
bullets found at the crime scene were from the same gun.
Id. He explains that this finding contradicted the
State's expert's factual findings which concluded
that the bullets were all fired from the same gun.
Id. at 21. He claims that PCR counsel was
ineffective in failing to alert the PCR court of these
matters. Id. at 24.
respect to this argument, the Court highlights that this
claim is unexhausted and was never raised in Petitioner's
habeas petition. Instead, it was raised in a motion to stay
his habeas petition, ECF No. 43, which was denied by this
Court on November 23, 2015. ECF No. 57. As relevant
background, on May 26, 2015, Petitioner filed a motion to
stay his habeas petition, to exhaust in state court an
additional nine claims for relief. ECF Nos. 43, 44. Together
with his motion to stay, Petitioner filed a motion to amend
his habeas petition. The list of nine unexhausted claims were
attached to a letter filed with the Court that same day. ECF
No. 45 at 3-5. Specifically, claim number five of that list
appears identical to the claim he now raises in his Motion
for Reconsideration. Number five reads:
PCR counsel was ineffective for not raising defendant's
claim after counsel never submitted into evidence the
independent expe[r]t report stating that 3 of the 6
bullet's that had been sen[t] to him came from another
gun and to say about the 7 bullet that was never sen[t] to
him, after the state expe[r]t witness report's stated all
17 teen cases and 7 bullet's ...