United States District Court, D. New Jersey
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
B. SIMANDLE, U.S. DISTRICT JUDGE
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
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. §
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].
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
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
STANDARD OF REVIEW
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).
prevail on a motion for reconsideration, the movant must
(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
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