United States District Court, D. New Jersey
MEMORANDUM AND ORDER
L. WOLFSON UNITED STATES DISTRICT JUDGE.
pro se, Richard Thompson (“Thompson” or
“Petitioner”), is a federal prisoner presently
incarcerated by special arrangement at New Jersey State
Prison, in Trenton, New Jersey. This matter is before the
Court on a Supplement to Petitioner's Writ of Habeas
Corpus Under 28 U.S.C. § 2241, in which Thompson seeks a
new parole hearing because of the Parole Commission's
alleged failure to disclose letters opposing parole submitted
by the Bureau of Prisons (“BOP”). (ECF No. 2.) On
June 23, 2017, the Court ordered respondent Steven D'Ilio
(“Respondent”) to file a response to the
supplemental petition and to include “the relevant
record, including the BOP letter.” (ECF No. 18.)
Respondent filed a Supplemental Memorandum in Opposition to
the Supplemental Petition, accompanied by 116 pages of
administrative record, including two letters from the BOP to
the Parole Commission, dated March 3, 2011 and April 9, 2013.
(ECF Nos. 22 & 22-2 at ECF pp. 112-15.) In each of those
letters, apparently responding to pre-hearing letters from
the Parole Commission inviting BOP input, the BOP Director
expressed opposition to paroling Thompson based on his crimes
committed while in BOP custody. (Id.)
thereafter filed a motion to compel Respondent to produce
copies of the letters that the Parole Commission sent to
invite input from the BOP, arguing that these letters
“are an essential part to Petitioner's
claim.” (ECF No. 25.) The Court denied this motion,
finding that Respondent had met his obligation to submit
“the relevant record, ” as counsel had certified
that the documents filed with the response, which included
the BOP letters Thompson had previously lacked, comprised the
entire case file since 2012 (except audio recordings). (ECF
No. 26.) The Court explained that, if the letters soliciting
BOP input were not before the Parole Commission when it
rendered its decision, such letters were not relevant to
whether Thompson received due process before the Parole
now moves for reconsideration of that order. (ECF No. 27.)
Thompson alleges that his supplemental petition
“argu[es] the [Parole Commission] wrote the [BOP] two
letters[, ] [o]ne dated 2/28/11, and a second letter dated
3/20/13, soliciting their input on the potential of granting
Petitioner parole.” (Id. ¶ 1.) Thompson
alleges that the order must be reconsidered, as it was a
product of fraud upon the Court, contending that,
“[c]learly, these letters dated 2/28/11, and 3/20/13,
were used prior to the Commission rendering it's [sic]
decision.” (Id. ¶¶ 7-8.)
for reconsideration are permitted under Local Civil Rule
7.1(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. 7.1(i). Motions for
reconsideration are not intended as opportunities 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).
does not identify any change in law or newly available
evidence, and the Court construes his motion as alleging a
clear error of law or fact. While Thompson does not clearly
identify an alleged error of law or fact, he contends that
the Court's prior order resulted from a fraud upon the
Court. By this, he seems to allege that Respondent was
dishonest in representing that the documents included with
the supplemental response comprise the complete file before
the Parole Commission. Thompson has submitted no evidence
that supports this contention.
case, the same facts and arguments were fully presented to
the Court when it decided the motion to compel.
Thompson's disingenuous attempt to recast his
supplemental petition as concerning the letters sent by the
Parole Commission soliciting input from the BOP (rather than
the letters sent by the BOP providing input to the Parole
Commission) does not alter the Court's prior analysis.
Thus, this motion for reconsideration represents an improper
attempt to reargue old matters that not only could have been,
but were, previously raised. It remains the case that the
gist of Thompson's supplemental petition is the
allegation that he was denied due process by being deprived
of the opportunity to respond to evidence that was before the
Parole Commission when it denied him parole; documents that
played no part in this decision accordingly have no relevance
to the claim. Therefore, the motion for reconsideration is
has also filed a motion for the appointment of counsel, which
he feels will streamline the process of litigation. (ECF No.
29.) A habeas petitioner has no constitutional or statutory
right to representation by counsel. Reese v.
Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991),
superseded by statute on other grounds 28 U.S.C.
§ 2254. Nevertheless, under 18 U.S.C. § 3006A,
courts may appoint counsel to habeas petitioners if they are
“financially eligible” and if “the
interests of justice so require.” 18 U.S.C. §
3006A(a)(2)(B). In determining whether the interests of
justice support the appointment of counsel, “the
district court must first decide if the petitioner has
presented a nonfrivolous claim and if the appointment of
counsel will benefit the petitioner and the court.”
Reese, 946 F.2d at 263. Such an inquiry includes
consideration of the petitioner's likelihood of success
on the merits, the proceeding's legal complexity, and the
petitioner's ability to investigate and present his case.
See, e.g., Fuscaldo v. Nogan, Civ. No.
16-4198 (JMV), 2016 WL 5660436, at *1-2 (D.N.J. Sept. 28,
2016); Shelton v. Hollingsworth, Civ. A. No. 15-1249
(JBS), 2015 WL 5116851, at *2 (D.N.J. Aug. 31, 2015).
appointment of counsel is not warranted at this time. Without
reaching any conclusion as to the ultimate merit of
Thompson's claim, the Court observes that the issues are
not particularly complex, nor does it seem Thompson is
lacking in ability to present them. Thompson's claim
implicates mainly legal issues, the resolution of which will
likely not require any factual investigation beyond the
underlying record. Consequently, the Court does not find that
the interests of justice require appointing Thompson counsel.
In the event, however, that the Court subsequently deems an
evidentiary hearing necessary, the Court may sua
sponte reconsider Thompson's application.
IT IS, on this 27th day of November 2018, ORDERED that
Petitioner's Motion for Reconsideration, (ECF No. 27), is
DENIED; and it is further
that Petitioner's Motion for Appointment of Counsel, (ECF
No. 29), is DENIED; and it is further
that the Clerk shall serve a copy of this Memorandum and
Order upon Petitioner by regular U.S. mail.