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Johnson v. Phelps

United States District Court, Third Circuit

July 30, 2013

LARRY JOHNSON, Petitioner,
v.
PERRY PHELPS, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

MEMORANDUM

GREGORY M. SLEET, Chief District Judge.

I. INTRODUCTION

In August 2004, a Delaware Superior Court jury convicted petitioner Larry E. Johnson of two counts of felony murder, one count of first degree burglary, one count of second degree conspiracy, and three counts of possession of a firearm during the commission of a felony. The Superior Court sentenced Johnson to a term of life imprisonment. The Delaware Supreme Court affirmed Johnson's convictions and sentences on July 1, 2005. See Johnson v. State, 878 A.2d 422, 424 (Del. 2005).

On June 27, 2006, Johnson filed a motion for state post-conviction relief pursuant to Delaware Superior Court Rule 61 ("Rule 61 motion"). The Superior Court denied the Rule 61 motion after ruling that all of his ineffective assistance of counsel claims were meritless and the other claims were barred by Rule 61(i)(3). See State v. Johnson, 2006 WL 3308200, at *6 (Del. Super. Ct. Nov. 9, 2006). Johnson appealed, but did not present his ineffective assistance of counsel claims. The Delaware Supreme Court affirmed the Superior Court's denial of his Rule 61 motion on March 11, 2008. See Johnson v. State, 945 A.2d 594 (Table), 2008 WL 643145, at *2 (Del. Mar. 11, 2008).

Johnson filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in July 2008, asserting two claims for relief: (1) the trial judge abused her discretion by allowing into evidence a gun seized from Johnson during an arrest, for which he was eventually acquitted; and (2) the trial judge abused her discretion by allowing testimony of Johnson's prior arrest without conducting a proper analysis under Getz v. State, 538 A.2d 726 (Del. 1988). (D.I. 2.) On February 28, 2011, the court denied Johnson's habeas petition as time-barred. (D.1. 19)

Presently pending before the court is Johnson's combined Rule 60(b) motion for reconsideration of the court's 2011 denial of his habeas petition and a request to have counsel appointed to represent him once the case is reopened. (D.l. 20)

II. STANDARD OF REVIEW

A motion for reconsideration filed pursuant to Federal Rule of Civil Procedure 60(b) "allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) motions are addressed to the sound discretion of the trial court, and are guided by accepted legal principles applied in light of all relevant circumstances. Pierce Assoc. Inc. v. Nemours Found., 865 F.2d 530, 548 (3d Cir. 1988). A motion for reargument and/or reconsideration is not appropriate to reargue issues that the court has already considered and decided. Brambles USA Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990).

Additionally, when, as here, a district court is presented with a motion for reconsideration after it has denied the petitioner's federal habeas petition, the court must first determine if the motion constitutes a second or successive application under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). As articulated by the Third Circuit,

in those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition.

Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Under AEDPA, a prisoner cannot file a second or successive habeas application without first obtaining approval from the Court of Appeals and, absent such authorization, a district court cannot consider the merits of a subsequent application. 28 U.S.C. § 2244(b)(3)(A); Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002).

III. DISCUSSION

Johnson's Rule 60(b) motion contends that the court should reopen his case pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012) to enable him to present ineffective assistance of counsel arguments that he did not raise in his § 2254 petition. Johnson explains that he presented four ineffective assistance of counsel claims to the Delaware Superior Court in his pro se Rule 61 motion, but that he did not present them to the Delaware Supreme Court on post-conviction appeal or to this court in his federal habeas petition because he was representing himself.

The court denied Johnson's petition as time-barred, and Johnson's instant argument does not challenge that decision. Rather, he asserts justification for adding never-presented ineffective assistance of counsel claims to this court, and these ineffective assistance of counsel claims collaterally attack his underlying conviction. In addition, Johnson could have, but did not, raise these claims in his § 2254 petition. Therefore, the court concludes that ...


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