United States District Court, D. Delaware
2015, the court denied as time-barred petitioner Daryl
Andrus' habeas petition. (D.I. 17; D.I. 18) Andrus'
habeas petition challenged his 1996 conviction for first
degree intentional murder and first degree conspiracy. (D.I.
17 at 3) Presently pending before the court is Andrus'
letter motion for reconsideration. (D.I. 19)
STANDARD OF REVIEW
motion for reargument/reconsideration may be filed pursuant
Federal Rule of Civil Procedure 59(e) or Federal Rule of
Civil Procedure 60(b). Although motions for reargument/
reconsideration under Rule 59(e) and Rule 60(b) serve similar
functions, each has a particular purpose. United States
v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). For
instance, "Rule 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). A motion filed pursuant to Rule
60(b) is addressed to the sound discretion of the trial court
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), but may be
granted only in extraordinary circumstances. See
Moolenaar v. Gov't of Virgin Islands, 822 F.2d 1342,
1346 (3d Cir. 1987). A Rule 60(b)(6) motion must be filed
within a "reasonable time, " which is determined by
considering the interest of finality, the reason for delay,
the practical ability of the litigant to learn earlier of the
grounds relied upon, and the consideration of prejudice, if
any, to other parties. See Dietsch v. United States,
2 F.Supp.2d 627, 633 (D.N.J. 1988). As a general rule, a Rule
60(b)(6) motion filed more than one year after final judgment
is untimely unless "extraordinary circumstances"
excuse the party's failure to proceed sooner. See
generally Acker man v. United States, 340 U.S. 193, 202
contrast, Rule 59(e) is "a device  used to allege
legal error, " Fiorelli, 337 F.3d at 288, and
may only be used to correct manifest errors of law or fact or
to present newly discovered evidence. See Howard Hess
Dental Labs, Inc. v. Dentsply Int'l Inc., 602 F.3d
237, 251 (3d Cir. 2010). The moving party must show one of
the following in order to prevail on a Rule 59(e) motion: (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 a manifest injustice.
See Max's Seafood Cafe v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999). A motion for
reargument/reconsideration is not appropriate to reargue
issues that the court has already considered and decided.
See Brambles USA Inc. v. Blocker, 735 F.Supp. 1239,
1240 (D. Del. 1990).
when, as here, a district court is presented with a Rule
60(b) motion after it has denied the petitioner's federal
habeas application, the court must first determine if the
Rule 60(b) motion constitutes a second or successive
application under the Antiterrorism and Effective Death
Penalty Act ("AEDPA"). As articulated by the Third
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. 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.
court will treat the instant motion as filed pursuant to Rule
60(b), because Andrus filed it well-past twenty-eight days
after the entry of the court's judgment. C.f.
Holsworth v. Berg, 322 F.App'x 143, 146 (3d
Cir. 2009); Ranklin v. Heckler, 761 F.2d 936, 942
(3d Cir. 1985)("Regardless of how it is styled, a motion
filed within ten days of entry of judgment questioning the
correctness of judgment may be treated as a motion to amend
or alter the judgment under Rule 59(e)."). In turn, the
court construes the motion as being filed pursuant to Rule
60(b)(6) - the "catch-all" provision - because Rule
60(b)(6) permits a party to seek reconsideration for
"any other reason [than the specific circumstances set
out in Rule 60(b)(1)-(5)] that justifies relief from the
operation of the judgment. See Fed. R. Civ. P.
60(b)(6); Gonzalez v. Crosby, 545 U.S. 524, 529
Rule 60(b)(6) motion, Andrus contends that defense counsel
was ineffective and that his co-defendant sent him a letter
expressing his guilt over the crime. Andrus asserts that the
letter demonstrates his actual innocence, but he does not
provide a copy of the letter or a date for it. Therefore, the
court is not persuaded that the letter constitutes newly
since Andrus alleged ineffective assistance and actual
innocence in his original habeas petition, his instant
arguments re-assert arguments already considered and rejected
by the court. Thus, the court concludes that the instant
motion constitutes a second or successive § 2254
petition, not a traditional Rule 60(b) motion. See
28 U.S.C. § 2244(a), (b)(3); 28 U.S.C. § 2254.
record reveals that Andrus did not obtain permission from the
Third Circuit Court of Appeals to file the instant
motion/petition. Accordingly, the court will dismiss
Andrus' motion/petition as second or successive.
See 28 U.S.C. § 2244(b)(1); Robinson,
313 F.3d at 139 (holding that when a second or successive
habeas petition is erroneously filed "in a district
court without the permission of the court of appeals, the
district court's ...