The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
On July 20, 2005, the Court issued a Decision and Order that denied and dismissed Petitioner Raymond Collins' motion for relief brought pursuant to 28 U.S.C. §2255. See July 20, 2005 Decision & Order [dkt.#17]. In his §2255 petition, Petitioner sought relief based on claims:
(1) that had been rejected on their merits by the United States Court of Appeals for the Second Circuit and therefore were procedurally barred in this Court; (2) that were procedurally barred because they were not raised on direct appeal; (3) that failed to establish constitutionally ineffective assistance of counsel; and (4) that were based on a cases that could not be raised for the first time on collateral review. Id. In dismissing the Petition, the also Court determined, sua sponte, that Petitioner was not eligible for a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253.
Petitioner now moves this Court to reconsider the following issues addressed in the July 20, 2005 Decision and Order: 1) the sua sponte denial of a COA; 2) the determination that certain claims brought under Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny were procedurally barred; 3) that the building Petitioner burned was not within interstate commerce under Jones v. United States, 529 U.S. 838 (2000); 4) whether he was denied a fair trial because of the Court's ex parte communication with a juror and/or whether his counsel was constitutionally ineffective for failing to pursue the issue further; and 5) whether he suffered manifest injustice based on the Court's decision on the merits of the Section 2255 motion notwithstanding Petitioner's motion to strike the Government's answer.
II. THE STANDARD FOR RECONSIDERATION
"The standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d. Cir 2000)(To sustain a motion for reconsideration, Petitioner "'must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion.'" )(quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)); Polanco v. United States, 2000 WL 1346726, at *1 (S.D.N.Y. September 19, 2000); Califano v. United States, 1998 WL 846779, at *1 (E.D.N.Y. September 4, 1998). "The high burden imposed on the moving party has been established in order to dissuade repetitive arguments on issues that have already been considered by the court and discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court [and] to ensure finality and prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Nowacki v. Closson, 2001 WL 175239, *1 (N.D.N.Y. Jan. 24, 2001) (Munson, J.) (internal citations and quotations omitted). Petitioner "may neither repeat 'arguments already briefed, considered and decided,' nor 'advance new facts, issues or arguments not previously presented.'" In re Application of the United States, 396 F. Supp. 2d 294, 301 (E.D.N.Y. 2005) (quoting Schonberger v. Serchuk, 742 F. Supp.108, 119 (S.D.N.Y. 1990)); see also Shamis, 187 F.R.D. at 151 ("[T]he court must not allow a party to use the motion to reargue as a substitute for appealing from a final judgment. Therefore, a party in its motion for reargument may not advance new facts, issues or arguments not previously presented to the court.")(citations and internal quotation marks omitted).
a. Denying a COA Sua Sponte
Collins first argues that the Court improperly denied him a COA sua sponte. He relies on Miller-El v. Cockrell, 537 U.S. 322, 343 (2003), but misunderstands its holding. Miller-El holds that a COA may issue where the petitioner shows that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El, 537 U.S. at 338 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). As the Court held in Miller-El, the COA determination is a separate determination from the merits, and requires only that Petitioner make a substantial showing of the denial of a constitutional right, not that he necessarily would prevail on appeal. Miller-El, 537 U.S. at 337, 342.
However, while the COA determination presents a separate threshold question to consider (i.e. whether reasonable jurists could differ as to the merits of the petition), district courts can, and often do, decided the issue sua sponte based upon the arguments presented in the Petition and in the papers in support and in opposition to a motion to dismiss. See United States v. Cole, 2005 WL 3454322, *4-*5 (E.D.N.Y. Dec. 7, 2005)(citing cases for the proposition that a district court may sua sponte decide whether a COA should issue in a habeas petition.).
The July 20, 2005 Decision and Order analyzed Petitioner's claims according to the settled procedures of §2255. The Court did not then, and does not now, find that Petitioner's claims establish a substantial showing of the denial of a right. On the contrary, under Federal law, Petitioner was not denied any rights. Given that Petitioner's claims failed in the face of well-established Second Circuit and Supreme Court decisions, the result was not debatable or wrong. The Court's sua sponte denial of a COA is consistent with the decisions of other District Courts in the Second Circuit and is ...