Opinion
04 Civ. 2222 (RWS).
February 10, 2005
MEMORANDUM OPINION
By an opinion and order of this Court dated December 23, 2004 and entered on the docket on January 7, 2005, the petition of Charles Watson, a/k/a Jean Bernier ("Watson") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 was denied as time-barred. See Watson v. United States, No. 04 Civ. 2222 (RWS), 2004 WL 2984303 (S.D.N.Y. Dec. 23, 2004) (the "Opinion"). Familiarity with the Opinion is presumed.
By letter dated December 30, 2004 submitted by Watson pro se and received by the Court on January 4, 2005, Watson has sought reconsideration of the Opinion on the grounds that Watson did not have the benefit of assigned counsel's response to the Government's opposition. Watson has requested that the Court contact his assigned counsel and inquire into the status of Watson's reply to the Government's opposition papers. He has further requested that the Court withdraw its decision and order until such time as "answers are forthcoming from assigned counsel and a Reply is allowed to be submitted by Counsel or Petitioner." (Pet. Reconsideration Motion, at 2.) According to Watson, his reply papers submitted pro se specifically noted that the statute of limitations were not being discussed therein and would be left for assigned counsel to address.
Watson's request for assigned counsel was granted by order of the Court on June 7, 2004 and the time for Watson to file a reply to the Government's opposition was extended by sixty days. Attorney Louis V. Fasulo ("Fasulo") was appointed in July 2004 following submission by Watson of a pro se reply to the Government's opposition to the underlying petition. No requests to extend the time to reply to the Government's opposition were submitted by Watson's counsel, nor did Fasulo submit a reply on Watson's behalf either before or after the time to do so expired.
In a further submission from Watson dated January 12, 2005, Watson has indicated that his request has been prompted at least in part by concerns about the deadline to file for a certificate of appealability in the Second Circuit and his lack of certainty as to whether the appointed counsel will handle the application for such a certificate. He has also asked, in the alternative, for new counsel to be appointed to prepare a reply to the Government's opposition.
The return date for Watson's motion, originally set for February 9, 2005, is hereby adjourned to March 16, 2005 for the reasons set forth below. Discussion
A motion to reconsider "is to be treated as a Rule 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter." United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993); see also Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 136-37 (2d Cir. 2000) ("We have long held that a postjudgment motion made within 10 days after entry of judgment, if it involves reconsideration of matters properly encompassed in a decision on the merits, is to be deemed a motion to alter or amend the judgment pursuant to Rule 59(e), thereby extending the time of the parties to appeal.");Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 401 (2d Cir. 2000) ("A post-judgment motion requesting alteration or amendment of the judgment but denominated a motion under a Rule other than Civil Rule 59(e) is generally treated as having been made under Rule 59(e), thereby extending the time to appeal, if the motion was filed within the 10-day period allowed for a Rule 59(e) motion."); McCowan v. Sears, Roebuck Co., 908 F.2d 1099, 1103 (2d Cir. 1990) ("[M]ost substantive motions brought within ten days of the entry of judgment are functionally motions under Rule 59(e), regardless of their label or whether relief might also have been obtained under another provision").
On a motion made pursuant to Rule 59(e), Fed.R.Civ.P., "`the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision.'" Word v. Croce, No. 01 Civ. 9614 (LTS), 2004 WL 434038, at *2 (S.D.N.Y. Mar. 9, 2004) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)); see also Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 83 (S.D.N.Y. 2003). Alternatively, "`reconsideration may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence.'" Word, 2004 WL 434038, at *2 (quoting Parrish, 253 F. Supp. 2d at 715).
Rule 59(e) is not an appropriate vehicle for a party dissatisfied with a court's ruling to secure a rehearing on the merits with respect to issues already decided, see USA Certified Merchants, LLC v. Koebel, 273 F. Supp. 2d 501, 503 (S.D.N.Y. 2003); Parrish, 253 F. Supp. 2d at 715; Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999), or to advance "`new facts, issues or arguments not previously presented to the court.'" Williams, 219 F.R.D. at 83 (quoting Wechsler v. Hunt Health Sys., Ltd., 186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002)). In other words, "[a] party seeking reconsideration `is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings.'" Wechsler, 186 F. Supp. 2d at 410 (quoting Polsby v. St. Martin's Press, Inc.,
No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). Thus, Rule 59(e) should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court," Williams, 219 F.R.D. at 83, and "to prevent the rule from being used as a substitute for appealing a final judgment." USA Certified Merchants, 273 F. Supp. 2d at 503.
"Reconsideration of a court's previous order is an `extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'"Montanile v. Nat'l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)); see also USA Certified Merchants, 273 F. Supp. 2d at 503.
Watson has pointed to no new evidence or evidence overlooked in connection with the decision rendered in the Opinion, nor has he cited any controlling law overlooked in reaching the conclusions expressed in the Opinion. Nonetheless, in view of Watson's representations that he was relying upon his appointed counsel, Louis V. Fasulo ("Fasulo"), to address issues concerning the timeliness of his petition and in view of Watson's stated dissatisfaction with the representation provided by Fasulo to date, Fasulo is hereby relieved as counsel for Watson and the CJA Office of this district is directed to appoint new counsel for Watson. The return date for Watson's motion for reconsideration is hereby adjourned until March 16, 2005 in order to permit Watson's new counsel to address on submission what grounds, if any, may exist for reconsideration of the conclusions reached in the Opinion concerning the timeliness of Watson's petition.
Watson's letter addressed to the Chief Judge of this district seeking to lodge a complaint concerning Fasulo's representation pursuant to Local Civil Rule 1.5 was received on January 28, 2005, and is being transmitted to the Committee on Grievances of this district contemporaneous with the filing of this opinion and order.
It is so ordered.