The opinion of the court was delivered by: Judge Munley
Before the court is plaintiff's motion for reconsideration (Doc. 9) of the court's order (Doc. 8) adopting the report and recommendation of Magistrate Judge Martin C. Carlson (Doc. 6) and dismissing his petition for a writ of habeas corpus. Having been fully briefed, the matter is ripe for consideration.
Petitioner filed the instant action on September 14, 2009. (See Doc. 1). He is a native and citizen of Jamaica who has resided in the United States for many years. Since completing a Pennsylvania state sentence related to drug trafficking, petitioner has been detained by the United States pending his deportation. Petitioner alleges that an immigration judge improperly approved his deportation and has filed an appeal. He contends that his continued detention awaiting deportation violates his due process rights and seeks release pending the decision of the Board of Immigration Appeals (BIA).
The defendants filed a response to the petition on October 7, 2009. (See Doc. 5). Magistrate Judge Carlson issued his report and recommendation on October 22, 2009. (See Doc. 6). The magistrate judge found that petitioner's claim should be denied without prejudice. He noted that petitioner fell within the class of criminal aliens whose detention pending completion of removal proceedings is required by federal law. See 8 U.S.C. § 1226(c)(1)(B). The court also concluded that petitioner could not make out a Due Process claim, as the Supreme Court has concluded that detention under 8 U.S.C. § 1226(c)(1)(B) does not violate due process. Noting, however, that the Court had also found that detention for an excessive period of time can constitute a Due Process violation, Magistrate Judge Carlson examined the facts of the case and found that the delay in petitioner's case was caused by petitioner's actions in appealing to the Board of Immigration Appeals ("BIA"). Moreover, the length of petitioner's custody had been brief--less than six months--and would last only until petitioner's appeal concluded.
The petitioner did not object to the report and recommendation within the time allotted by the court. On November 16, 2009, this court issued an order (Doc. 8) adopting the report and recommendation in part but not adopting the magistrate judge's recommendation that the defendant report on petitioner's status in detention by January 25, 2010. (Id.). On November 20, 2009, the petitioner filed objections to the report and recommendation, which he titled a motion for reconsideration. (Doc. 9). The defendants filed a brief in opposition to this motion, bringing the case to its present posture.
Petitioner brought this action pursuant to 28 U.S.C. § 2241. As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
Here, defendant seeks reconsideration of the court's decision adopting the magistrate judge's report and recommendation. "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, 799 F.2d 906, 909 (3d Cir.1985); Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The movant must demonstrate one of three grounds for such a motion to be granted: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or to prevent manifest injustice. Max's Seafood Cafe, 176 F.3d at 677. A motion for reconsideration is not a proper vehicle to attempt to convince the court to rethink a decision it has already made. Glendon Energy Co. v. Borough of Glendon, 836 F. Supp.1109, 1122 (E.D. Pa. 1993). Such motions also may not be used to give a dissatisfied party a chance to "[change] theories and try again," obtaining a "'second bite at the apple.'" Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995); see also Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002) (finding that "The simple fact that Ogden is unhappy with the result of the April 19, 2001 opinion is an insufficient basis to grant her relief.").
The court will grant the motion for reconsideration and consider petitioner's filing to be objections to the report and recommendation. In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
The government filed a brief in opposition to the defendant's motion. (See Doc. 10). Defendants, pointing to the standard for a motion for reconsideration, argue that because there was no intervening change in the controlling law, petitioner has introduced no previously unavailable evidence and no clear error of law, the motion should be denied. In his motion for reconsideration, petitioner avers that he was transferred from the York County, Pennsylvania prison to the Willacy Detention Center in Texas on October 23, 2009. (See Doc. 8 at 2). The magistrate judge issued his report and recommendation on October 22, 2009. (Id.). Petitioner informed the court that his address had changed, but he did not receive a copy of the magistrate judge's opinion until November 3, 2009. (Id.). The Clerk of Court docketed the instant motion on November 20, 2009. (Id.). It thus appears that petitioner attempted to raise his objections in a timely fashion, but delays in the prison mail system prevented him from doing so.
The court finds that failing to consider the petitioner's objections under these circumstances would amount to manifest injustice, and reconsideration is thus warranted. Indeed, it appears that the petitioner's filing may be inappropriately titled. After informing the court of the circumstances that led to his delay in receiving mail, petitioner asserts that "this Document is submitted in reply to this Courts [sic] order that any party may object to the Magistrate Judge's proposed finding within ten (10) days 'after' being served with a copy thereof." (See Doc. 9 at 2). Plaintiff is apparently arguing that he should be given extra time to submit his objections, as there was a delay in serving him with the magistrate judge's order. Though plaintiff's pro se filing is titled "motion for reconsideration," the motion is more in the nature of objections to the report and recommendation and a motion for ...