Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. Ortiz

United States District Court, D. New Jersey

March 13, 2019

MALIK NELSON, Petitioner,
v.
DAVID ORTIZ, Respondent.

          Malik Nelson, Petitioner pro se #60413-050 Fort Dix Federal Correctional Institution, Craig Carpenito, United States Attorney Jessica Rose O'Neill, Assistant United States Attorney Attorneys for Respondent David Ortiz

          OPINION

          JEROME B. SIMANDLE, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Respondent David Ortiz's motion to dismiss Petitioner Malik Nelson's petition for writ of habeas corpus under 28 U.S.C. § 2241. [Docket Entry 8]. Petitioner moves for reconsideration of this Court's order permitting Respondent to file a motion to dismiss in lieu of an answer. [Docket Entry 9]. For the reasons stated below, Petitioner's motion for reconsideration is denied. Respondent's motion to dismiss is granted.

         II. BACKGROUND

         Petitioner was sentenced to 360 months imprisonment on August 13, 2008 after a District of New Jersey jury convicted him of conspiracy to distribute and possession with intent to distribute more than 50 grams of cocaine base, 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), (b)(1)(A), and possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B). [United States v. Nelson, No. 1:06-00520-06, Judgment of Conviction (D.N.J. Aug. 13, 2008) [Docket Entry 288]]. This Court determined Petitioner qualified as a career offender under the sentencing guidelines based on his prior convictions in 1999, 2000, and 2005. [Transcript of Sentencing, Docket Entry 8-3 at 19:8 to 20:11]. See also U.S.S.G. § 4B1.1(a).

         Petitioner filed a motion under 28 U.S.C. § 2255 on February 1, 2016 raising claims based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Nelson v. United States of America, No. 16-550 (D.N.J. filed Feb. 1, 2016). On March 16, 2016, the Federal Public Defender's office entered an appearance on Petitioner's behalf and later submitted an amended § 2255 motion arguing that Petitioner's prior convictions for aggravated assault on a law enforcement officer no longer qualified as crimes of violence. [Amended Motion, Nelson, No. 16-550 Docket Entry 7]. On April 3, 2017, Petitioner voluntarily dismissed the § 2255 motion. [Notice of Voluntary Dismissal, Nelson, No. 16-550 Docket Entry 8].

         On November 1, 2017, Petitioner filed this petition under 28 U.S.C. § 2241. [Docket Entry 1]. The Court denied Petitioner's in forma pauperis application and administratively terminated the petition. [Docket Entry 2]. After receiving the filing fee and reopening the case, the Court ordered Respondent to answer the petition. [Docket Entry 4].

         On May 23, 2018, Respondent requested permission to file a motion to dismiss in lieu of filing an answer. [Docket Entry 6]. It argued the Court lacked subject matter jurisdiction over the petition. [Id.]. The Court granted the request on May 25, 2018. [Docket Entry 7]. Respondent filed the motion to dismiss on June 8, 2018. [Docket Entry 8]. On June 15, 2018, Petitioner filed a motion for reconsideration arguing the Court erred by allowing Respondent to file a motion to dismiss without giving him time to object to the request. [Docket Entry 9]. Petitioner requested additional time to file his objection to the motion to dismiss, [Docket Entry 10], which the Court granted, [Docket Entry 12]. Petitioner filed his opposition to the motion to dismiss on August 23, 2018. [Docket Entry 13]. The matter is now ripe for disposition.

         III. STANDARD OF REVIEW

         Local Civil Rule 7.1 allows a party to seek a motion for reargument or reconsideration of “matter[s] or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked . . . .” Local Civ. R. 7.1(i). Whether to grant a motion for reconsideration is a matter within the Court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. See DeLong v. Raymond Int'l Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); see also Williams v. Sullivan, 818 F.Supp. 92, 93 (D.N.J. 1993).

         To prevail on a motion for reconsideration, the movant must show:

(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court ... [rendered the judgment in question]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.

U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir. 2014) (citing Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The standard of review involved in a motion for reconsideration is high and relief is to be granted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.