UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

 

 : 

CARNELL GIBBS, : Civ. No. 11-1137 (NLH) 

 : 

 Petitioner, : 

 : OPINION 

 v. : 

 : 

GREG BARTKOWSKI, et al., : 

 : 

 Respondents. : 

 : 

APPEARANCES: 

Carnell Gibbs 

New Jersey State Prison 

P.O. Box 861 

Trenton, NJ 08625 

 Petitioner, pro se 

John J. Santoliquido, Esq. 

James F. Smith, Esq. 

Atlantic County Prosecutor’s Office 

4997 Unami Boulevard 

Mays Landing, NJ 08330 

Counsel for Respondents 

HILLMAN, DISTRICT JUDGE 

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. 
2 

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. 

II. DISCUSSION

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 

 

1 With respect to Petitioner’s Motion to File Reconsideration 

as Within Time, Petitioner explains that he was not given 

immediate access to the prison law library. (ECF No. 68 at 6.) 

The Court will permit Petitioner file his Motion for 

Reconsideration as within time. 
3 

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. 
4 

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 
5 

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 came [from] 

the same gun, PCR counsel independent 

expe[r]t never received the 7 shelling. 

ECF No. 45 at 3 (capitalized in original). 

On October 23, 2015, this Court denied Petitioner’s motions 

to stay and amend his habeas petition. ECF No. 57. This Court 

explained in relevant part: 

Petitioner’s Motion [to Stay] is devoid of 

any argument demonstrating “good cause” for 

why he has failed to exhaust these claims. 

More specifically, Petitioner does not 

explain why these claims were not, or could 

not have been, previously exhausted. 

 

2 The Court notes that this was the second motion to stay 

filed by Petitioner. The first motion to stay was denied by the 

Court as moot. ECF Nos. 18, 19. After the Third Circuit’s 

remand Order, Petitioner filed an identical motion to stay. ECF 

Nos. 43, 44. 
6 

In his Motion [to Stay], Petitioner does not 

provide any reason for his failure to bring 

these claims in his state court proceedings. 

Instead, Petitioner simply states that these 

new claims were discovered, “with the help 

of a paralegal here at the prison and 

petitioner pouring over the trial 

transcripts[.]” (Mot. 5, ECF No. 44). This 

statement, alone, is insufficient to 

establish the “good cause” required by 

Rhines [v. Weber, 544 U.S. 269 (2205)]. 

 

. . . 

Furthermore, Petitioner does not offer any 

supporting facts or elaborate upon the 

claims he seeks to add. Therefore, in 

addition to the fact that Petitioner has not 

adequately explained his failure to exhaust, 

Petitioner has likewise not shown that any 

of these claims have potential merit. 

Accordingly, a stay is not warranted and 

Petitioner’s request to amend his Petition 

to add the nine unexhausted claims is 

denied. 

ECF No. 57 at 8, 12. 

This Court further explained: 

Leave to amend under Rule 15(a) should be 

“freely given when justice so requires.” 

FED. R. CIV. P. 15(a); see also Foman v. 

Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 

L. Ed. 2d 222 (1962) (“In the absence of any 

apparent or declared reason — such as undue 

delay, bad faith or dilatory motive on the 

part of the movant, . . . futility of 

amendment, etc. — [leave to amend] should be 

‘freely given.’”). In this case . . . the 

claims Petitioner seeks to add are either 

lacking in merit, or could have been raised 

in earlier state proceedings, prior to 

filing this habeas Petition. In light of 

the futility of amendment and Petitioner’s 

undue delay in exhausting these claims, 

amendment will be denied. See, e.g., Burgos 
7 

v. Ricci, No. 08-5892, 2012 WL 933205, at 

*13 (D.N.J. Mar. 19, 2012) (finding that 

amendment would be inappropriate, in part, 

due to petitioner’s undue delay in failing 

to exhaust claims before state court). 

Id. at 12, n.4. 

Thus, insofar as Petitioner alleges that this Court 

overlooked his argument related to the alleged ineffective 

assistance of PCR counsel, he is incorrect. Instead, as 

demonstrated above, the Court specifically excluded that 

argument from being presented to the Court for habeas review, 

when it denied Petitioner’s motions to stay and amend his habeas 

petition. Therefore, because Petitioner has not shown that the 

Court overlooked his claim, he has not provided a basis for 

reconsideration.3 Accordingly, the Motion for Reconsideration is 

denied.4

 

3 To the extent Petitioner is asking this Court to reconsider 

the Court’s November 23, 2015 Order, ECF No. 58, denying 

Petitioner’s motions to stay and amend his habeas petition, that 

argument is out of time. See L. CIV. R. 7.1(i) (“a motion for 

reconsideration shall be served and filed within 14 days after 

the entry of the order or judgment.”); see also FED. R. CIV. P. 

59(e) (“A motion to alter or amend a judgment must be filed no 

later than 28 days after the entry of the judgment.”). 

4 Because the Court finds that the appointment of counsel 

will not benefit Petitioner or the Court, his request for pro 

bono counsel is denied. See Dime v. Aviles, No. 15-1410, 2015 

WL 1114143, at *1 (D.N.J. Mar. 10, 2015) (citing Reese v. 

Fulcomer, 946 F.2d 247, 263–64 (3d Cir. 1991)) (explaining what 

a court should consider in granting or denying a request for the 

appointment of pro bono counsel.) 
8 

III. CONCLUSION

For the reasons stated above, Petitioner’s Motion to File 

Reconsideration as Within Time is GRANTED. Petitioner’s Motion 

for Reconsideration of this Court’s denial of habeas relief is 

DENIED. An appropriate order follows. 

Dated: June 29, 2018 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 

 

Similarly, because jurists of reason would not disagree 

with the Court’s April 30, 2018 Opinion denying habeas relief, 

ECF No. 66, or the instant Opinion denying reconsideration, the 

Court will not grant a certificate of appealability. See 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).