UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

TERRELL BROWN a/k/a :

MARCUS HOWARD : Civil Action No.

 :

Petitioner, : 11-3330 (RBK)

 :

v. : MEMORANDUM OPINION 

 : AND ORDER

DONNA ZICKEFOOSE, :

 :

Respondent. :

_______________________________:

 

This matter comes before the Court upon Petitioner’s

submission of a document titled “Appellant’s Memorandum In

Opposition to Summary Judgment,” see Docket Entry No. 7, and it

appearing that:

1. On August 15, 2011, this Court dismissed Petitioner’s § 2241

petition on the grounds of want of jurisdiction, since

Petitioner challenged the enhancement of his federal sentence

ordered by the United States District Court for the District

of Indiana (“District of Indiana”). See Docket Entry No. 2

(detailing, at length, Petitioner’s challenges, the rationale

of this Court’s legal analysis and its conclusion that Section

2255 was not an “inadequate or ineffective” remedy to address

Petitioner’s challenges to enhancement of his federal

sentence).

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2. On September 6, 2011, Petitioner filed his notice of appeal. 

See Docket Entry No. 3. Petitioner’s appellate proceedings

are currently underway. See Docket Entries Nos. 4-6.

3. On October 5, 2011, Petitioner filed his instant “Appellant’s

Memorandum In Opposition to Summary Judgment,” see Docket

Entry No. 7, which this Court construes as Petitioner’s motion

for reconsideration (“Motion”). In his Motion, Petitioner

argues that this Court erred in dismissing the Petition for

lack of jurisdiction because: (a) Petitioner is of opinion

that he is “actually innocent”; and (b) Petitioner is

presenting this Court with “new evidence.” See id. None of

these assertions were made in the original Petition. See,

generally, Docket Entry No. 1.

4. With regard to his newly-minted “actual innocence” position,

Petitioner: (a) readily concedes that he, indeed, committed

the federal crime for which he was convicted by the District

of Indiana and also committed the state offence relied upon by

the District of Indiana for the purposes of enhancing his

federal sentence; but (b) maintains that, since Petitioner

believes that the District of Indiana erroneously relied on

his state offence for the purposes of enhancing his federal

sentence, Petitioner should be deemed “actually innocent” of

the enhancement element underlying his federal sentence.

5. Analogously, with regard to his newly-minted “new evidence”

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position, Petitioner maintains that he offers this Court “new

evidence” because the legal precedent allegedly contradicting

the enhancement ruling reached by the District of Indiana was

entered after Petitioner’s Section 2255 challenges were

dismissed by his federal sentencing court; in other words,

Petitioner maintains that he found out about his alleged

“actual-innocence-for-the-purposes-of-sentence-enhancement”

when he already could not raise this challenge by means of

Section 2255 motion.

6. At the outset of its discussion of Petitioner's latest

assertions, the Court note that Petitioner's current Motion is

untimely and, in addition, under Venen v. Sweet, 758 F.2d 1

117, 120 (3d Cir. 1985), presented to this Court after the

Court lost its jurisdiction over this Matter. "[T]he timely

filing of a notice of appeal is an event of jurisdictional

significance, immediately conferring jurisdiction on a Court

of Appeals and divesting a district court of its control over

 The Local Rules provide that, unless otherwise provided by 1

statute or rule (such as Fed. R. Civ. P. 50, 52 and 59), a motion

for reconsideration shall be served and filed within 14 days

after the entry of the order or judgment on the original motion. 

See Local Civ. R. 7.1(i). The purpose of a motion for

reconsideration is to correct manifest errors of law or fact or

to present newly discovered evidence. See Holland v. Holt, 2010

U.S. App. LEXIS 25168 (3d Cir. Dec. 9, 2010) (citing Max's

Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999)). In this case, Plaintiff's Motion is untimely, as

the face of the Motion does not show that it was handed to prison

officials for mailing to the Clerk within 15 days after entry of

the Court's order dismissing the Petition.

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those aspects of the case involved in the appeal." Id.

Therefore, technically, this Court is without jurisdiction to

address Petitioner's challenges raised in his Motion until the

Court of Appeals stays Petitioner's appellate proceedings and

remand Petitioner's claims to this Court for disposition of

his newly-minted challenges. However, recognizing Petitioner's

interests in a speedy resolution of his challenges, as well as

being mindful of the Court of Appeals' interest in processing

appellate cases in an expedited fashion, the Court finds that

the interests of judicial economy warrant this Court's entry

of its decision as to Petitioner's current Motion. The Court,

therefore, will excuse Petitioner's delay in filing his Motion

and will grant Petitioner's request to the extent that it

would address the merits of Petitioner's Motion instead of

simply dismissing it for lack of jurisdiction. 

2

7. A motion for reconsideration is a device of limited utility.

There are only four grounds upon which a motion for

 The Court of Appeals guided that a litigant's motion for 2

reconsideration should be deemed "granted" when the court (the

decision of which the litigant is seeking a reconsideration of)

addresses the merits — rather than the mere procedural propriety

or lack thereof- of that motion. See Pena-Ruiz v. Solorzano, 281

Fed. App'x 110 at *2-3, n.1 (3d Cir. 2008). However, the fact of

the court's review does not prevent the court performing such

reconsideration analysis (of the original application, as

supplanted by the points raised in motion for reconsideration)

from reaching a disposition identical — either in its rationale

or in its outcome, or in both regards — to the court's decision

previously reached upon examination of the original application. 

See id.

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reconsideration might be granted: (a) to correct manifest

errors of law or fact upon which the judgment was based; (b)

to present newly-discovered or previously unavailable

evidence; (c) to prevent manifest injustice; and (d) to 3

accord the decision to an intervening change in prevailing

law. See 11 Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995);

see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985), cert. denied, 476 U.S. 1171 (1986) (purpose of motion

for reconsideration is to correct manifest errors of law or

fact or to present newly discovered evidence). "To support

reargument, a moving party must show that dispositive factual

matters or controlling decisions of law were overlooked by the

court in reaching its prior decision." Assisted Living

Associates of Moorestown, L.L.C., v. Moorestown Tp., 996 F.

Supp. 409, 442 (D.N.J. 1998). In contrast, mere disagreement

 In the context of a motion to reconsider, the term 3

"manifest injustice" "[generally . . . means that the Court

overlooked some dispositive factual or legal matter that was

presented to it," In re Rose, 2007 U.S. Dist. LEXIS 64622, at *3

(D.N.J. Aug. 30, 2007), making the definition an overlap with the

prime basis for reconsideration articulated in Harsco, that is,

the need "to correct manifest errors of law or fact upon which

the judgment was based." Alternatively, the term "manifest

injustice" could be defined as "'an error in the trial court that

is direct, obvious, and observable.'" Tenn. Prot. & Advocacy,

Inc. v. Wells, 371 F.3d 342, 348 (6th Cir. 2004) (quoting Black's

Law Dictionary 974 (7th ed. 1999)). "[M]ost cases [therefore,]

use the term 'manifest injustice' to describe the result of a

plain error." Douglass v. United Services Auto. Ass'n, 79 F.3d

1415, 1425 (5th Cir. 1996).

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with the district court's decision is an inappropriate ground

for a motion for reconsideration: such disagreement should be

raised through the appellate process. See id. (citing

Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834,

859 n.8 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994);

G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)); see also

Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001)

(a motion for reconsideration may not be used as a means to

reargue unsuccessful theories). Consequently, "[t]he Court

will only entertain such a motion where the overlooked

matters, if considered by the Court, might reasonably have

resulted in a different conclusion." Assisted Living, 996 F.

Supp. at 442; see also Continental Cas. Co. v. Diversified

Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995)

("[M]otions for reconsideration should be granted sparingly");

Edward H. Bohlin, Co. v. Banning Co., Inc., 6 F.3d 350, 355

(5th Cir. 1993) (a district court "has considerable discretion

in deciding whether to reopen a case under Rule 59(e)"). 

8. Here, Petitioner's Motion asserts that Petitioner is

presenting this Court with "newly discovered" evidence. 

However, the legal precedent upon which Petitioner relies,

Begay v. United States, 553 U.S. 137, was entered in 2008,

that is, three years prior to Petitioner's filing of his

Petition and was, indeed, raised in the Petition. Therefore,

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Petitioner's Motion cannot be granted on the basis of his

presentment of new and previously unavailable evidence. 

9. However, the invalidity of Petitioner's Motion does not turn

on this aspect. Rather, it ensues from Petitioner's erroneous

position that this Court has Section 2241 jurisdiction to

address the Petition's challenges because Petitioner believes

that he is "actually innocent" for the purposes of the

enhancement aspect of his federal sentence.

10. A claim of "actual innocence" relates to innocence in fact,

not innocence based on a legal, procedural defect. A

4

petitioner asserting "actual innocence" must present evidence

of innocence so compelling that it undermines the court's

confidence in the trial's outcome of his/her conviction; only

that innocence permits him/her to argue the merits of his/her

claim. Therefore, a claim of actual innocence requires the

petitioner to show: (a) new reliable evidence not available

 Before the AEDPA, the Supreme Court held that a petitioner 4

otherwise barred from filing a successive § 2255 motion "may have

his federal constitutional claim considered on the merits if he

makes a proper showing of actual innocence." Herrera v. Collins,

506 U.S. 390, 404 (1993). This rule, the fundamental miscarriage

of justice exception, is only granted in extraordinary

situations, such as where it is shown that the constitutional

violations probably resulted in the conviction of one who is

actually innocent. See id.; McCleskey v. Zant, 499 U.S. 467, 494

(1991). The "claim of actual innocence is not itself a

constitutional claim, but instead a gateway through which a

habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits." Herrera, 506

U.S. at 404.

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for presentation at the time of the challenged trial; and (b)

that it is more likely than not that no reasonable juror would

have convicted the petitioner in the light of the new

evidence. See House v. Bell, 547 U.S. 518 (2006); Schlup v.

Delo, 513 U.S. 298, 324, 327 (1995). In other words, the

petitioner must present evidence suggesting that (s)he did not

commit the offence for which (s)he was convicted: that is why

the Supreme Court, in House, emphasized that the gateway

standard for habeas review in claims asserting actual

innocence is demanding and permits review only in the

"extraordinary" case. See House, 126 S. Ct. at 2077 (citing

Schlup, 513 U.S. at 327). Simply put, the "actual innocence"

theory does not concern itself with the niceties of shorter or

longer sentences, or analogous technicalities: rather, it

focuses on ensuring that the person who is wholly innocent of

the crime would not be left unduly incarcerated without a

remedy, in the event that person obtains proof that (s)he did

not commit the offense for which (s)he is being incarcerated.5

 For instance, in House v. Bell, 547 U.S. 518, the inmate 5

asserted that new evidence conclusively established that semen on

the rape-and-murder victim's clothes was that of the victim's

husband and indicated that bloodstains on his clothes resulted

from spillage from samples of the victim's blood and that the

victim's husband was the likely murderer. The Supreme Court held

that, while there was no showing of conclusive exoneration,

consideration of the inmate's claims was warranted since it was

more likely than not that no reasonable juror viewing the record

in light of this new evidence would lack reasonable doubt as to

the inmate's innocence of his rape and murder conviction,

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11. Here, Petitioner does not assert any innocence in fact; on the

contrary, he readily concedes that he committed the offence

underlying his District of Indiana conviction and also

committed the offense underlying his state conviction (which

was relied upon by the District of Indiana for the purposes of

enhancement of Petitioner's federal sentence). Therefore,

Petitioner is not "actually innocent" within the meaning of

governing law, and his reliance on the finesse of sentencing

regime annunciated in Begay has no relevance to -- and, thus,

cannot qualify as "new evidence" of -- his alleged "actual

innocence," which is facially lacking here. See Perez v.

Samuels, 2007 U.S. Dist. LEXIS 43084 (D.N.J. June 8, 2007)

(dismissing a substantively indistinguishable position where

a federal inmate conceded that he committed the offense he was

convicted of but asserted that he was entitled to litigate his

sentence enhancement claims under § 2241 because of his belief

that was "actually innocent" for the purposes of the

enhancement element of his federal sentence), aff'd, 256 Fed.

App'x 443 (3d Cir. 2007).

12. Since Petitioner's newly-minted legal position is facially

without merit, his Motion cannot warrant reconsideration of

this Court's prior determination. Correspondingly, this

especially granted the newly-discovered testimony that the

husband confessed to the crime and regularly abused the victim.

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Court's prior decision will remain in force. As this Court

already explained to Petitioner in its prior opinion, 

All [what Petitioner] asserts is that his federal

sentence was erroneously enhanced. This Court,

however, has no § 2241 jurisdiction to second guess

the decision of Petitioner’s federal sentencing

court: that has been established time and again in

this Circuit. See, e.g., Rhines v. Holt, 2011 U.S.

App. LEXIS 13606 (3d Cir. June 30, 2011) (affirming

dismissal of § 2241 petition on want of

jurisdiction grounds where the petitioner – as

Petitioner here – asserted that he was “actually

innocent” of the sentence enhancement applied to

him); United States v. McKeithan, 2011 U.S. App.

LEXIS 11710 (3d Cir. June 8, 2011) (same); Delgado

v. Zickefoos, 2011 U.S. App. LEXIS 11468 (3d Cir.

June 7, 2011) (same, addressing a § 2241 petition

substantively indistinguishable from the Petition

at bar); Florez-Montano v. Scism, 2011 U.S. App.

LEXIS 11308 (3d Cir. June 2, 2011) (same); Edmonds

v. United States, 2011 U.S. App. LEXIS 9988 (3d

Cir. N.J. May 16, 2011) (same). Moreover,

addressing § 2241 sentence-enhancement challenges

based expressly on the holding of Begay, the Court

of Appeals unambiguously concluded that such

challenges are

insufficient [to invoke] § 2241. § 2255; see

also Cradle v. United States, 290 F.3d 536,

538-39 (3d Cir. 2002). In Dorsainvil we held

that § 2241 can be used to challenge a

conviction for a crime that was negated by an

intervening change in the law. [See] 119 F.3d

at 249. But such relief is available only in

“rare situations” where the crime of

conviction was later deemed non-criminal.

[See] Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002). Section 2241 is not

available for intervening changes in the

sentencing law. Id. For example, we did not

allow Okereke to proceed under § 2241 because

his argument was based on “Apprendi [which]

dealt with sentencing and did not render . . .

the crime for which Okereke was convicted, not

criminal.” Id. at 120. 2

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United States v. Kenney, 391 Fed. App’x 169, 172 (3d Cir.

2010) (emphasis supplied, footnote omitted). 

Docket Entry No. 2, at 9-11 (emphasis in original). No

statement made in Petitioner's instant Motion alters the

above-quoted analysis.

IT IS, therefore, on this 18th day of October , 2011,

ORDERED that the Clerk shall reopen this matter for the

purposes of the Court's examination of Petitioner's motion for

reconsideration, Docket Entry No. 7, by making a new and separate

entry on the docket reading, "CIVIL CASE REOPENED"; and it is

further

ORDERED that Petitioner's motion for reconsideration is granted

in form and denied in substance, and this Court's prior

determination as to Petitioner's challenges shall remain in force,

and these challenges shall remain dismissed for lack of

jurisdiction; and it is further

ORDERED that the Clerk shall close this matter by making a new

and separate entry on the docket reading, "CIVIL CASE CLOSED"; and

it is further

ORDERED that this Court expressly withdraws its jurisdiction

over this action; and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion and

Order upon Petitioner by regular U.S. mail; and it is finally

ORDERED that the Clerk shall serve a copy of this Memorandum

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Opinion and Order upon the Clerk of the Court for the United States

Court of Appeals for the Third Circuit, accompanying such service

with a notation reading, "SERVED IN CONNECTION WITH BROWN V.

ZICKEFOOSE, USCA NUMBER 11-3431. SERVICE EXECUTED FOR INFORMATIONAL

PURPOSES ONLY."

s/Robert B. Kugler 

Robert B. Kugler, 

United States District Judge

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