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Gibbs v. Bartkowski

United States District Court, D. New Jersey

June 29, 2018

CARNELL GIBBS, Petitioner,
GREG BARTKOWSKI, et al., Respondents.

          Carnell Gibbs Petitioner, pro se

          John J. Santoliquido, Esq. James F. Smith, Esq. Atlantic County Prosecutor's Office Counsel for Respondents


          NOEL L. HILLMAN, U.S.D.J.

         Pending 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.

         I. Procedural History

         On 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.[1] ECF No. 68. Petitioner also requests that the Court appoint him pro bono counsel and issue a certificate of appealability.


         A. Standard

         Whether 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.

         B. Analysis

         In his 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.

         With 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.[2] 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 ...

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