United States District Court, D. New Jersey
GREGORY J. BARTHOLOMEW, Petitioner,
MICHELLE RICCI, et al., Respondents.
L. WOLFSON, U.S.D.J.
Petitioner's second motion seeking relief under
Fed.R.Civ.P. 60(b). Petitioner challenges the Court's
dismissal of his Petition as untimely under the Antiterrorism
Effective Death Penalty Act of 1996 (“AEDPA”).
The gravamen the instant motion is that Petitioner is
entitled to equitable tolling because the Office of the
Public Defender (1) lost Petitioner's trial file, thus
delaying the filing of his petition for post-conviction
relief, and (2) misadvised Petitioner that he had one year
from the end of his state court proceedings to file his
habeas petition, when, in fact, Petitioner had already used
approximately eight months of the limitations period between
the conclusion of direct review and the filing of his first
petition for post-conviction relief (“PCR”).
See ECF No. 36, at 8-9. For the reasons explained
below, the Court denies Petitioner's second application
for Rule 60(b) relief as untimely and without merit.
Court recounts only the relevant procedural history.
Petitioner's habeas petition was docketed on July 20,
2010, and is dated July 18, 2010. ECF No. 1, at 83. Following
the submission of the Answer, the Court dismissed the
Petition without prejudice as untimely November 21, 2011, ECF
Nos. 17-18, and provided Petitioner with 45 days in which to
reopen the matter and establish a basis for equitable
tolling. See Id. Petitioner moved to reopen the
matter, arguing that the limitations period should be
equitably tolled due to the actions of the Public
Defender's Office in losing his trial file and
misinforming him about the statute of limitations for habeas
relief. ECF No. 20, Brief at 29-30. The Court denied the
Motion to Reopen on July 25, 2012, finding that Petitioner
had failed to establish a valid basis for equitable tolling.
See ECF No. 21.
February 6, 2013, Petitioner appealed, and the Third Circuit
dismissed his appeal for lack of jurisdiction on December 3,
2012. Petitioner subsequently sought relief under Rule 60(b)
(“First Rule 60(b) Motion”), and the Court denied
his First Rule 60(b) Motion on September 20, 2013. ECF Nos.
29-30. Petitioner filed an untimely appeal, ECF No. 31, which
was dismissed for lack of jurisdiction on March 4, 2013. ECF
No. 35. Petitioner then filed a second application for Rule
60(b) relief (“Second Rule 60(b) Motion”),
see ECF No. 36, more than three-and-a-half years
after the Court initially dismissed his habeas petition as
untimely and nearly three years after the Court denied his
Motion to Reopen.
60(b) provides, in relevant part, that relief from judgment
may be granted on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
Fed. R. Civ. P. 60(b). The general purpose of the Rule is
“to strike a proper balance between the conflicting
principles that litigation must be brought to an end and that
justice must be done.” Boughner v. Sec'y of
Health, Educ. and Welfare, 572 F.2d 976, 977 (3d Cir.
1978). “The decision to grant or deny relief pursuant
to Rule 60(b) lies in the ‘sound discretion of the
trial court guided by accepted legal principles applied in
light of all the relevant circumstances.'”
United States v. Hernandez, 158 F.Supp.2d 388, 392
(D. Del. 2001) (quoting Ross v. Meagan, 638 F.2d
646, 648 (3d Cir. 1981)).
motions filed pursuant to Rule 60(b) must be made within a
‘reasonable time.'” In re Diet Drugs
(Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab.
Litig., 383 Fed.Appx. 242, 246 (3d Cir. 2010).
“What constitutes a ‘reasonable time' under
Rule 60(b) is to be decided under the circumstances of each
case.” Id. (citation omitted). A court
considers many factors, including finality, the reason for
delay, the practical ability for the litigant to learn of the
grounds relied upon earlier, and potential prejudice to other
parties. Id. (citation omitted). What constitutes a
“reasonable time” also depends on the subsection
of Rule 60(b) under which claimant is trying to proceed.
Thus, claims made under clauses (1), (2), and (3) must be
brought within one year of the entry of judgment to be
timely, but even if they are, they may still be untimely if
an unreasonable period of time has passed. Moolenaar v.
Gov't of Virgin Islands, 822 F.2d 1346, 1346 (3d
Cir. 1987). Relief under Rule 60(b)(6) is extraordinary
because it can be given for “any other reason
justifying relief” and is not subject to an explicit
time limit. Coltec Indus. Inc. v. Hobgood, 280 F.3d
262, 273 (3d Cir. 2002). Therefore, a claimant must establish
exceptional circumstances justifying the delay for filing
under Rule 60(b)(6).
extent Petitioner is moving for relief under any subsection
other than Rule 60(b)(6), his claims are plainly time barred.
Although a claim for relief under Rule 60(b)(6) has no
explicit time limit, Petitioner has provided no
basis for this delay in submitting his Second Rule 60(b)
motion; nor has he provided any extraordinary circumstances
to excuse the delay. Indeed, Petitioner's Second Rule
60(b) Motion raises the same arguments for equitable
tolling that Petitioner raised in his Motion to Reopen
and his First Rule 60(b) Motion, which were twice rejected by
this Court. Petitioner does not rely on any change in
decisional law and merely restates the arguments for
equitable tolling that he made in his prior motions.
Petitioner may not use Fed.R.Civ.P. 60(b) to rehash the same
arguments that have already been rejected by this Court. As
such, Petitioner has not met the requirements for relief
under Rule 60(b)(6).
Petitioner states that even if the Court determines that his
Petition is time barred, his claims raised on appeal of
denial of PCR are nevertheless timely, and the Court should
reach the merits of those claims. ECF No. 36, Brief at 13.
Petitioner is incorrect. Although “the statute of
limitations set out in § 2244(d)(1) should be applied on
a claim-by-claim basis” Fielder v. Varner,
379 F.3d 113, 118 (3d Cir. 2004), under the circumstances
here, the one-year limitations period is calculated from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review” and none of the other triggering
dates apply. See § 2244(d)(1). As such,
Petitioner's claims raised on appeal from the denial of
PCR are also untimely.
these reasons, the Court will deny Petitioner's second
Rule 60(b) Motion as untimely and without merit. An
appropriate Order follows.
 Even if the Court were to reach the
merits of Petitioner's Second Rule 60(b) motion, it would
find that Petitioner has not established a valid basis for
equitable tolling. See Fahy v. Horn, 240 F.3d 239,
244 (3d Cir. 2001) (explaining that “attorney error,
miscalculation, inadequate research, or other mistakes have
not been found to rise to the level of ...