ROBERT B. KUGLER, District Judge.
Petitioner, Mohamad Ibrahim Shnewer, is a federal prisoner proceeding with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On March 7, 2016, this Court denied Mr. Shnewer's § 2255 motion and the case was closed. On April 4, 2016, Mr. Shnewer filed a motion to alter/amend that judgment. Accordingly, the Clerk will be ordered to reopen this case so that petitioner's motion for relief from judgment can be decided. For the following reasons, petitioner's motion will be denied.
The parties are well-versed in the facts giving rise to petitioner's ultimate criminal conviction and sentence at this stage of the proceedings and need not be recited in full again in this Opinon. As this Court noted in a prior opinion, petitioner, along with four co-defendants, were brought to trial on various charges including conspiracy to murder members of the United States military. Neither petitioner, nor his four co-defendants testified at trial. Ultimately, petitioner (along with the co-defendants) was convicted of that conspiracy charge and was sentenced to life imprisonment.
After petitioner's direct appeal concluded,
On September 30, 2015, this Court denied the Dukas § 2255 motion with the exception of one claim. The sole claim that was not decided at that time was the Dukas' claim that their decision not to testify at trial was the result of attorney coercion. The Dukas included declarations in their § 2255 proceedings that specifically stated the circumstances giving rise to this claim. This Court summarized the Dukas' declarations as follows in a previous Opinion:
Duka v. United States, Nos. 13-3664, 13-3665, 13-3666, 2015 WL 5768786, at *4-5 (D.N.J. Sept. 30, 2015). Based on these specific declarations outlining their claims, this Court determined that an evidentiary hearing was warranted before rendering a decision on the Dukas' attorney coercion claim. On January 6, 2016, this Court conducted on evidentiary hearing on the Dukas' claim that they were coerced not to testify at trial by their attorneys. The Dukas and their respective trial counsel each testified at the January 6, 2016 hearing. On May 31, 2016, this Court denied the Dukas' attorney coercion claim. See Duka v. United States, Nos. 13-3664, 13-3665, 13-3666, 2016 WL 3063868 (D.N.J. May 31, 2016)
Mr. Shnewer's § 2255 proceedings have not followed a similar path when compared to the Dukas. Indeed, Mr. Shnewer filed his § 2255 motion pro se in June, 2013. The government filed its response to the § 2255 motion and then Mr. Shnewer filed a reply. With respect to Mr. Shnewer's fourth claim that sought to incorporate all of his co-defendants' claims, Mr. Shnewer stated in his reply brief that he could not brief the claims of his co-defendants because he did not have access to those motions at that time. (See Dkt. No. 13 at p.1 n.1) Before this Court issued its decision on Mr. Shnewer's § 2255 motion, habeas counsel entered an appearance on behalf of Mr. Shnewer on December 2, 2015. At no time, however, between when counsel entered an appearance on December 2, 2015, and when this Court denied Mr. Shnewer's § 2255 motion on March 7, 2016, did Mr. Shnewer's habeas counsel ever seek or request additional time to supplement Mr. Shnewer's § 2255 motion.
On March 7, 2016, this Court denied all of Mr. Shnewer's claims. With respect to Mr. Shnewer's fourth claim that sought to incorporate the co-defendants' claims, this Court stated as follows:
Shnewer v. United States, No. 13-3769, 2016 WL 867461, at *24 (D.N.J. Mar. 7, 2016).
On April 4, 2016, Mr. Shnewer, through his habeas counsel, filed a motion to alter, amend or provide relief from that judgment pursuant to Federal Rules of Civil Procedure 59 and 60. That motion argues as follows:
(Dkt. No. 40-1 at p.7-8) Mr. Shnewer attaches a declaration to his motion to alter judgment which states as follows:
(Dkt. No. 40-1 at p.18-20) The government filed a response in opposition to the motion to alter/amend the judgment. Thereafter, Mr. Shnewer, through his habeas counsel, filed a reply brief in support of the motion.
Mr. Shnewer invokes both Federal Rule of Civil Procedure 59(e) and 60(b)(6) to support his motion to alter/amend the judgment. Motions for reconsideration are filed pursuant to Federal Rule of Civil Procedure 59(e) and are governed by Local Civil Rule 7.1(i) which allows a party to seek reconsideration by the Court in matters in which the party believes the judge has "overlooked." See Carney v. Pennsauken Twp. Police Dep't, No. 11-7366, 2013 WL 4501454, at *1 (D.N.J. Aug. 21, 2013) (citations omitted). "The standard for reargument is high and reconsideration is to be granted only sparingly." Yarrell v. Bartkowski, No. 10-5337, 2012 WL 1600316, at *3 (D.N.J. May 7, 2012) (citing United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994)). To be successful on a motion for reconsideration, a petitioner has the burden to demonstrate: "(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 or to prevent manifest injustice." Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citation omitted); see also Berry v. Jacobs IMC, LLC, 99 F. App'x 405, 410 (3d Cir. 2004). Mr. Shnewer relies on the need to prevent manifest injustice to support his motion.
With respect to Rule 60(b)(6), a court:
Michael v. Wetzel, 570 F. App'x 176, 180 (3d Cir. 2014), cert. denied, 135 S.Ct. 1532, 191 L. Ed. 2d 562 (2015), reh'g denied, 135 S.Ct. 1918, 191 L. Ed. 2d 781 (2015) (quoting Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008)).
Mr. Shnewer claims that not altering the judgment that denied his § 2255 motion would constitute manifest injustice because he is entitled to at least an evidentiary hearing on his claim that his decision not to testify was the result of attorney coercion. Certainly, a claim that a defendant's decision not to testify as the result of attorney coercion raises constitutional concerns. Indeed, as this Court previously explained in deciding the Dukas' attorney coercion claim:
Duka, 2016 WL 3063868, at *4-5. Neither party has provided this Court with a precise standard from the United States Supreme Court or the United States Court of Appeals for the Third Circuit as to what constitutes manifest injustice under Rule 59(e), nor has this Court found a precise manifest injustice standard from either of these two higher courts. See Teri Woods Publ'g, L.L.C. v. Williams, No. 12-4854, 2013 WL 6388560, at *2 (E.D. Pa. Dec. 6, 2013) ("The. . . Third Circuit has not definitively circumscribed the `manifest injustice' standard.") (citing Conway v. A.I. Dupont Hosp. for Children, No. 04-4862, 2009 WL 1492178, at *6 (E.D. Pa. May 26, 2009)). Nevertheless, Courts within this Circuit provide insight as to how this Court should define the contours of what does and does not constitute manifest injustice. One court has stated:
In re Roemmele, 466 B.R. 706, 712 (Bankr. E.D. Pa. 2012). Furthermore, in deciding a motion for reconsideration under the manifest injustice standard, this Court is guided by the principle that "it is not the job of courts deciding motion for reconsideration to rescue parties from their strategic litigation choices . . . (nor) rescue parties from their own errors." Conway, 2009 WL 1492178, at *7; see also Johnson v. Diamond State Port Corp., 50 F. App'x 554, 560 (3d Cir. 2002) (error by party in not timely submitting affidavit was not manifest injustice because counsel's carelessness was solely responsible); Teri Woods Publ'g, 2013 WL 6388560, at *3 (no manifest injustice where decision not to enter default against defendants was either a strategic choice or an error on the part of the plaintiffs); In re Dreyfus Mt. Funds Fee Litig., No. 04-0128, 2006 WL 1699443, at *2 (W.D. Pa. June 20, 2006) (no manifest injustice shown where plaintiff made decision not to file a motion for leave to amend either through mistake, ignorance or tactical maneuvering). Indeed, relying on several cases from the United States Court of Appeals for the District of Columbia, the Eastern District of Pennsylvania has noted that "outcomedeterminative litigation mistakes that were easily avoidable cannot be invoked by the party who made the mistakes to establish a manifest injustice under Rule 59." Conway, 2009 WL 1492178, at *8 (citing Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004); Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (remaining citation omitted)).
Mr. Shnewer argues that there is manifest injustice in this case. He states that it is appropriate for this Court to consider the fact that he is currently serving a life sentence in his attempt to show manifest injustice. He further claims that he is not seeking a "second bite at the apple," but instead is seeking "to have the full factual circumstances of his claims . . . judged on the merits." (Dkt. No. 40-1 at p.12-13) This Court finds Mr. Shnewer's manifest injustice arguments unpersuasive for the following reasons.
The decision to simply rely on and incorporate the Dukas' attorney coercion claim into his § 2255 motion was either a strategic choice by Mr. Shnewer or was in error. Unlike the Dukas who each provided this Court with a detailed declaration of the conversations and circumstances giving rise to their attorney coercion claim as it related to each's specific trial attorney, Mr. Shnewer provided no such material to this Court prior to judgment being entered. Nowhere in the record that was before this Court prior to this motion to alter/amend did Mr. Shnewer ever make this Court aware that Mr. Cipparone coerced him not to testify. Furthermore, nowhere in the record before this Court prior to its decision did Mr. Shnewer state what his testimony would have been had he testified. Thus, Mr. Shnewer never made any argument with supporting facts to support an attorney coercion claim prior to the March 7, 2016 Opinion.
Mr. Shnewer stated in his reply brief to his § 2255 motion that he could not brief the claims he was seeking to incorporate into his § 2255 motion because he did not have access to those dockets and filings. However, Mr. Shnewer certainly had the factual knowledge of what transpired between him and Mr. Cipparone from his own personal experience to provide this Court with the factual underpinnings of an attorney coercion claim. Thus, Mr. Shnewer cannot show that it was necessary for him to view the Dukas' dockets to proceed with his own attorney coercion claim. Despite personal knowledge of what purportedly transpired between himself and Mr. Cipparone, no such factual information was ever provided to this Court until Mr. Shnewer attached his declaration to this motion after judgment was entered.
It is worth noting that prior to this Court's March 7, 2016 disposition of Mr. Shnewer's § 2255 motion, habeas counsel entered an appearance on Mr. Shnewer's behalf on December 2, 2015. Nevertheless, at no point in the three months after Mr. Shnewer's counsel entered an appearance did they ever seek to supplement the record with facts to support an attorney coercion claim. By December, 2015, this Court had already ordered an evidentiary hearing on the Dukas attorney coercion claim. In ordering an evidentiary hearing, this Court specifically cited to the factual underpinnings that the Dukas laid out to support their claims through their declarations. Nevertheless, despite all of this being part of the public record, Mr. Shnewer's habeas counsel never sought nor inquired about supplementing the record on Mr. Shnewer's behalf to support an attorney coercion claim.
Whether it was a strategic choice or an error by Mr. Shnewer and his counsel in failing to seek to supplement the record with facts to support a specific attorney coercion clam with respect to himself and Mr. Cipparone does not matter. To reiterate, "it is not the job of courts deciding motions for reconsideration to rescue parties from their strategic litigation choices . . . (nor) rescue parties from their own errors." Teri Woods Publ'g, 2013 WL 6388560, at *3 (internal quotation marks and citations omitted).
Additionally, reconsideration based on manifest injustice requires that the error be apparent to the point of being indisputable. See id. (citing In re Titus, 479 B.R. 362, 367-68 (Bankr. W.D. Pa. 2012)). Some examples that courts have given for what constitutes indisputable errors include a defendant's guilty plea that is involuntary or that is based on the plea agreement that the prosecution rescinds." Id. In Mr. Shnewer's case, however, there was no indisputable error. Indeed, Mr. Shnewer never made specific allegations with respect to attorney coercion as it related to his specific attorney that necessitated this Court ordering an evidentiary hearing on such a claim. Indeed, even at this juncture, Mr. Shnewer's attorney coercion claim is far from indisputable. This lack of indisputability provides yet another reason why Mr. Shnewer has failed to show manifest injustice to warrant granting his motion for to alter/amend the judgment.
Mr. Shnewer's reliance on Gutierrez v. Gonzales, 125 F. App'x 406 (3d Cir. 2005) in attempting to show that he has established manifest injustice is also unpersuasive. In Gutierrez, the petitioner was placed in immigration removal proceedings based on aggravated felony convictions. See 125 F. App'x at 408. He was ordered removed by an Immigration Judge who deemed him ineligible for any relief from removal. See id. Gutierrez appealed to the Board of Immigration Appeals ("BIA") and requested that he be found eligible for discretionary relief under former section 212(c) of the Immigration and Nationality Act ("INA"). See id. The BIA, in a 3-2 Opinion determined that Section 212(c) was not available to aggravated felons. See id. at 409. However, such a decision proved to be in error as stated in a subsequent case by the United States Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001). Thus, as explained by the Third Circuit, "[h]ad the agency applied the law as announced in St. Cyr to Petitioner's removal proceedings, he would have been eligible for a discretionary waiver under § 212(c)." Gutierrez, 125 F. App'x at 409. However, petitioner did not formerly seek review of the BIA's decision and his retained attorney ignored requests to file an appeal. See id. Accordingly, petitioner was removed back to Columbia. See id. After his removal and after the Supreme Court issued its decision in St. Cyr, petitioner filed a habeas corpus petition. See id. Initially, the District Court dismissed the petition because petitioner was in Columbia when he filed the petition, and thus, could not meet the custody requirement of the habeas statute. See id.
The petitioner in Gutierrez then filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) and argued that ineffective assistance of counsel should be considered in correcting the District Court's assumption that petitioner had made a decision through his counsel not to file a habeas petition while he was in immigration custody. See 125 F. App'x at 409. An evidentiary hearing was then conducted by Judge Hochberg, and she made the following findings:
Gutierrez, 125 F. App'x at 410. Ultimately, Judge Hochberg granted habeas relief and ordered the government to grant petitioner a § 212(c) hearing in accordance with St. Cyr. See Gutierrez, 125 F. App'x at 410.
In Gutierrez, one of the issues that the government raised on appeal to the Third Circuit was whether the District Court should have considered petitioner's motion to amend the judgment. See 125 F. App'x at 416. According to the government, it represented petitioner getting a "second bite at the apple." Id. at 416-17. The Third Circuit, however, rejected this argument by the government and stated as follows:
Gutierrez, 125 F. App'x at 417. Mr. Shnewer likens his case to Gutierrez by asserting that in his case, "an omission of essential facts led to an incomplete record upon which a decision was made." (Dkt. No. 40-1 at p. 12)
This Court finds Gutierrez distinguishable from Mr. Shnewer's case. In Gutierrez, as noted above, the Third Circuit relied on the fact that the District Court needed to correct a "factually incorrect assumption" that Gutierrez had made the decision not to file a habeas petition prior to his deportation. See 125 F. App'x at 417. In Mr. Shnewer's case, however, this Court does not have to correct a "factually incorrect assumption" from its decision that denied Mr. Shnewer's § 2255 motion. Indeed, this Court noted in its March 7, 2016 Opinion that Mr. Shnewer did not allege in any fashion whatsoever in his § 2255 motion that his decision not to testify was the result of attorney coercion due to Mr. Cipparone stating to him that he was unprepared to testify. That was, and still remains, a factually accurate statement. Mr. Shnewer never made that specific attorney coercion argument in his § 2255 motion. Rather, he only incorporated the Dukas' attorney coercion claims that their attorneys coerced them not to testify.
Mr. Shnewer's habeas counsel assert that they were aware of facts underlying this claim prior to this Court's denial of Mr. Shnewer's § 2255 motion. (See Dkt. No. 49 at p.5) Furthermore, they state that the fact that no request was made to supplement Mr. Shnewer's pro se § 2255 motion from the time they entered the case in December, 2015, until the time this case was decided in March, 2016, was their fault. (See Dkt. No. 40-1 at p.7) However, unlike Gutierrez, this is not a case where Mr. Shnewer's counsel assert that Mr. Shnewer specifically told them to file a motion to supplement his § 2255 motion to include specific allegations with respect to his attorney coercion claim. Additionally, it is worth noting that this case was fully briefed in 2014. Thus, presumably, this Court could have decided Mr. Shnewer's § 2255 motion even prior to Mr. Shnewer's habeas counsel entering this case.
This is a case of a strategic choice or error by Mr. Shnewer in failing to include any facts to support an attorney coercion claim in his pro se § 2255 motion and then his habeas counsel's strategic choice or error in failing to file a motion to supplement his pro se § 2255 motion. Under these specific circumstances, such choices and/or errors by Mr. Shnewer and his habeas counsel do not meet the high "manifest injustice" threshold. For these reasons, Mr. Shnewer is not entitled to have this Court alter or amend his judgment under Federal Rule of Civil Procedure 59(e).
As previously stated, Mr. Shnewer also invokes Federal Rule of Civil Procedure 60(b)(6) to support his motion to alter or amend the judgment. He argues that his motion should not be considered a second or successive § 2255 motion because he is challenging a "defect in the integrity of [his] federal habeas proceedings." (Dkt. No. 49 at p.6) While this may be true, it is important to note that this "defect" was caused by Mr. Shnewer and his habeas counsel's own actions (or inaction) in this case. They were the cause of the failure to seek to supplement and provide factual allegations to support an attorney coercion claim. Thus, Mr. Shnewer fails to show extraordinary circumstances because he seeks relief from a judgment that resulted from his and his habeas counsel's own choices with respect to how he proceeded with his § 2255 motion. See, e.g., Michael, 570 F. App'x at 180 (extraordinary circumstances rarely exists when party seeks relief from judgment that resulted from party's deliberate choices); Katzenstein v. Dollar Gen. Corp., No. 14-6845, 2016 WL 525434, at *3 (D.N.J. Feb. 8, 2016) (Rule 60(b)6) should be used sparingly and may not be employed to rescue litigant from strategic choices that later turn out to be improvident); Dively v. Seven Springs Farm, Inc., No. 10-0126, 2012 WL 5818319, at *4 (W.D. Pa. Nov. 15, 2012) (deliberate choices of inaction do not amount to extreme or unexpected hardship to warrant granting relief under Rule 60(b)(6)). Accordingly, Mr. Shnewer is also not entitled to relief under Rule 60(b)(6).
For the foregoing reasons, Mr. Shnewer's motion for relief from judgment will be denied. An appropriate order will be entered.
