United States v. Burney

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Docket NumberCrim. 1:18-cr-606
Decision Date26 October 2021



Crim. No. 1:18-cr-606

United States District Court, D. New Jersey

October 26, 2021


Hon. Joseph H. Rodriguez, U.S.D.J.

This matter is before the Court on the pro se Motion for Reconsideration filed by Defendant Matthew Burney (“Defendant” or “Burney”) [Dkt. 43] which asks the Court to reconsider its denial of Burney's pro se Motion for Compassionate Release. [Dkt. 40, 41]. Also before the Court is Burney's motion for the Court to appoint counsel to assist Burney with his motion for reconsideration. [Dkt. 56]. For the reasons set forth below, the Court will deny both motions

I. Background

The Court has largely recited the relevant facts of this case once previously and, for the sake of efficiency, repeats those facts here:

On October 9, 2018, Defendant Burney pled guilty to a one-count information for Bank Robbery under 18 USC § 2113(a), for the robbery of the PNC Bank in Marlton, New Jersey. In accordance with his plea agreement, Defendant Burney also conceded to two other bank robberies-the Bank of America robbery and Chase Bank robbery. On February 27, 2019 this Court sentenced Defendant Burney to eighty-seven (87) months in prison and three (3) years of Supervised Release he is … projected to be released on February 26, 2024

[Dkt. 40 at 1].


On June 1, 2020, Burney filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) [Dkt. 29] which sought release due to the ongoing Covid-19 pandemic, and for reasons related to his mother and son. Defendant Burney is forty- five (45) years old. He alleges that he has “some aliments, ” including hypertension, hyperthyroidism, osteoarthritis, fibromyalgia, and herpes simplex, and that he fears for his health during this time. His mother, who suffers from dementia COPD and high-blood pressure, resides in a nursing home. Defendant's son is a 22-year old community college student, who has been between homes during this pandemic, as he does not have a stable residence with his grandmother in a nursing home. [Dkt. 40 at 1-2]. On January 6, 2021, the Court denied Burney's motion for compassionate release, finding that Burney did not present “extraordinary and compelling reasons” for his release as required under the First Step Act, 18 U.S.C. § 3582(c), and that the federal sentencing factors outlined in 18 U.S.C. § 3553(a) weighed against his release. [Dkt. 40 at 4-7; Dkt. 41].

The Court received Burney's belated reply to the Government's opposition brief only after issuing its opinion and order. [Dkt. 42].

On February 24, 2021, Burney filed the present motion, urging the Court to reconsider its denial of Burney's compassionate release motion. [Dkt. 43]. After filing his motion, Burney submitted a letter to the Court [Dkt. 45], a reply brief [Dkt. 46], a second letter to the Court [Dkt. 48], a second reply brief [Dkt. 49], a third letter to the Court [Dkt. 53], a sur-reply [Dkt. 54], and a supplemental memorandum [Dkt. 55], all of which include substantive information or argument concerning Burney's motion for reconsideration. Burney also wrote on May 3, 2021 to inform the Court that he has been transferred from FCI McKean to FCI Fort Dix. [Dkt. 52].

Most recently, on July 22, 2021, Burney moved the Court to appoint counsel to assist with his motion for reconsideration. [Dkt. 56]. This motion included a letter that repeated many of the same points raised in his prior communications. [Dkt. 56].


The Government opposed Burney's motion for reconsideration [Dkt. 44] and submitted a supplemental memorandum notifying the Court that Burney received two doses of the Pfizer-BioNTech COVID-19 vaccine. [Dkt. 50].

II. Request for Counsel

Before addressing the merits of Burney's motion for reconsideration, the Court will first consider Burney's request to have counsel appointed, which the Court will deny.

As noted above, Burney filed his original motion for compassionate release, the present motion for reconsideration, and seven supplemental filings without legal representation. Burney then requested representation “[d]ue to the numerous Federal Statutes involved, complexity of case law, [and] difference of opinions between District Courts on how the First Step Act applies to 18 U.S.C. § 3582(!)(A) [sic] and the Sentencing Commission's Governing Policy Statement § 1B1.13.” [Dkt. 56].

Burney “does not have a constitutional right to appointment of counsel when seeking compassionate relief.” United States v. Dorsey, No. CR 14-323-1, 2021 WL 603035, at *1 (E.D. Pa. Feb. 16, 2021) (citations and quotations omitted). And while the Criminal Justice Act sets forth criteria to determine if financially eligible individuals are entitled to representation, see 18 U.S.C. § 3006A(a)(1), Burney does not meet any of these criteria. Thus, Burney has no constitutional or statutory right to counsel with respect to the present motion for reconsideration.

Where parties lack statutory or constitutional rights to representation, “[t]he Court nonetheless has discretion to appoint counsel for an indigent litigant after considering several factors.” United States v. Ulmer, No. CR 18-00579-3, 2021 WL 844579, at *2-3 (E.D. Pa. Mar. 5, 2021). “First, ‘a district court must assess whether the claimant's case has some arguable merit in fact and law.'” Id. (quoting Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir.


2002)). If it does, the Court considers:

1. the [party's] ability to present his or her own case;
2. the difficulty of the particular legal issues;
3. the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue investigation;
4. the plaintiff's capacity to retain counsel on his or her own behalf;
5. the extent to which a case is likely to turn on credibility determinations, and;
6. whether the case will require testimony from expert witnesses.

Id. at *2-*3 (quoting Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993)); see also Dorsey, 2021 WL 603035, at *2-*3.

Burney is not entitled to counsel because his argument for reconsideration and ultimate request for early release have no merit in fact or law, for reasons that the Court will discuss below. Even if his motion had merit, the six factors identified above do not justify appointment of counsel. Burney has comprehensively and repeatedly articulated his position in his numerous submissions to the Court. Further, whether Burney “is entitled to relief under § 3582(c)(1)(A) is a straightforward legal issue that he ably addresses in his pro se Motion for release” and subsequent submissions. Ulmer, 2021 WL 844579, at *3. As discussed below, the Court's review of its denial of Burney's motion for compassionate release is even narrower than its review of Burney's compassionate release motion. See Anello Fence, LLC v. VCA Sons, Inc., No. CV133074JMVJBC, 2019 WL 4894562, at *2 (D.N.J. Oct. 3, 2019) (“[T]here are three narrow grounds on which a motion for reconsideration may be granted.”). Although Burney appears unable to retain separate counsel, determination of this motion will not turn on credibility determinations or expert witnesses or require additional fact investigation. Thus, the


Court will not exercise its discretion to grant Burney's request for counsel.

III. Legal Standard

“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). However, reconsideration is “an extraordinary remedy” and is granted “sparingly.” NL Indus., Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996). To succeed on a motion for reconsideration, the moving party must show “more than a disagreement” with the decision it would like reconsidered. Anders v. FPA Corp., 164 F.R.D. 383, 387 (D.N.J. 1995). Instead, the moving party must show that “(1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice.” Reich v. Schering-Plough Corp., No. CV 07-1508 (KSH), 2008 WL 11383793, at *1 (D.N.J. July 7, 2008) (collecting cases). Thus, a mere “recapitulation of the cases and arguments considered by this Court before rendering the original decision” does not warrant a grant of reconsideration. Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 706 (D.N.J. 1989), modified, 919 F.2d 225 (3d Cir. 1990); accord In re Gabapentin Patent Litigation, 432 F.Supp.2d 461, 463 (D.N.J. 2006); S.C. v. Deptford Twp. Bd. of Educ., 248 F.Supp.2d 368, 381 (D.N.J. 2003). A motion for reconsideration “is not … an opportunity for a litigant to raise new arguments or present evidence that could have been raised prior to the initial judgment.” Red Roof Franchising LLC, Inc. v. AA Hosp. Northshore, LLC, 937 F.Supp.2d 537, 543 (D.N.J. 2013), aff'd sub nom. Red Roof Franchising, LLC v. Patel, 564 Fed.Appx. 685 (3d Cir. 2014) (collecting cases). A motion for reconsideration will therefore fail if the moving party raises arguments or presents evidence that could have been raised previously.


IV. Discussion

a. The Court Declines to Reconsider its Finding that Burney Does Not Present Extraordinary and Compelling Reasons for Early Release

Burney first asks the Court to reconsider its ruling on his compassionate release motion because Burney was unable to submit his reply brief before the Court issued its ruling. [Dkt. 43 at 1-2]. Burney indicates that, on October 14, 2020, he requested an extension of time to file his reply brief so that he could research and respond to the Government's opposition brief. [Id.]. The Court neither granted nor denied this extension request. Burney claims that he was unable to complete his reply until...

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