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UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

ERIK SIMS, 

 

 Petitioner, 

 

 v. 

UNITED STATES OF AMERICA, 

 Respondent. 

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: OPINION 

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: Civ. No. 11-2267 (WHW) 

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Walls, Senior District Judge 

 Eric Sims filed a Federal Rule of Civil Procedure 59(e) motion for reconsideration of the 

Court’s April 11, 2012 Order. In that Order, the Court denied Sims’ petition for a writ of habeas 

corpus to vacate, set aside, or correct his March 2010 sentence of 188 months. Under Federal 

Rule of Civil Procedure 78(b), the motion for reconsideration is decided without oral argument. 

Sims’ motion for reconsideration is denied because there has been no intervening change in 

controlling law and there is no need to correct a clear error of law. 

FACTUAL AND PRODEDURAL HISTORY 

 In June 2009, Petitioner pled guilty to conspiring to possess with intent to distribute 100 

grams or more of a substance containing heroin, in violation of 21 U.S.C. § 846. Crim. Case No. 

09-419, June 8, 2009, ECF Nos. 14, 17-18. He pled pursuant to a plea agreement in which he 

waived his right to appeal or collaterally attack a sentence within the Guidelines offense level 31. 

Crim. Case No. 09-419, Plea Agreement Erik Sims, June 8, 2009, ECF No. 18. On March 25, 

2010 he was sentenced to a term of 188 months, within the Guidelines level 31 range. Crim. 

Case No. 09-419, J. Erik Sims, March 31, 2010, ECF No. 21. 

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 Sims filed a motion to vacate, set aside or correct his sentence on April 12, 2011, which 

was denied on April 11, 2012. He then timely filed this motion for reconsideration on April 16, 

2012 (according to the prison mailbox rule). He argues that the Court failed to adjudicate his 

claim that his attorney’s ineffective counsel resulted in waiver of his appeal rights. He also 

contends that the Supreme Court’s decision in Missouri v. Frye, 132 S.Ct. 1399 (2012), requires 

reconsideration of the standard to determine the validity of a waiver of appeal rights. 

STANDARD OF REVIEW 

 The Third Circuit has held that the “purpose of a motion for reconsideration is to correct 

manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. 

Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citation omitted). Such motions will only be granted 

where (1) an intervening change in the law has occurred, (2) new evidence not previously 

available has emerged, or (3) the need to correct a clear error of law or prevent a manifest 

injustice arises. North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995). 

“A party seeking reconsideration must show more than a disagreement with the Court’s decision, 

and recapitulation of the cases and arguments considered by the court before rendering its 

original decision fails to carry the moving party’s burden.” Gutierrez v. Ashcroft, 289 F. Supp. 

2d 555, 561 (D.N.J. 2003) (citations omitted). 

DISCUSSION 

 Sims’ motion does not contain new evidence; he appears to be asserting that the Court 

clearly erred in its April 2012 Order by failing to adjudicate one of his claims. He argues that his 

plea bargain and the accompanying waivers should be invalidated due to ineffective assistance. 

He argues that counsel was ineffective because he failed to advise Sims that the Court could 

depart downward on the basis that his criminal history was overstated. Sims made both parts of 

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this argument in his original motion. The Court found that his plea was knowing and voluntary 

and did not work a miscarriage of justice. The Court also found that there was no prejudice 

stemming from Sims entering this agreement as opposed to an open plea. The Court found that 

the record was clear that it disagreed that Sims’ criminal history was overstated. The Court 

would not have calculated Sims’ criminal history lower had he entered an open plea. 

 Sims also attempts to assert a new legal argument, that Frye, 132 S.Ct. 1399, requires the 

court to apply a new standard to appellate rights waivers. Frye did not change the standard for 

ineffective assistance of counsel. Frye explained how to apply the standard to cases where 

counsel does not inform a defendant of a formal prosecution offer of a plea deal. Frye did not 

change the requirement that defendant demonstrate that ineffective assistance prejudiced him. Id. 

at 1399. The Court’s April 2012 decision explained that Sims cannot show prejudice from his 

failure to enter an open plea, even if counsel failed to advise him of the option. 

CONCLUSION 

 Sims’ motion for reconsideration is denied. 

s/ William H. Walls 

United States Senior District Judge

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