United States District Court, D. Delaware
CHRISTOPHER R. DESMOND, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
1992, a Delaware Superior Court jury convicted Desmond on
multiple counts of first degree robbery, possession of a
deadly weapon during the commission of a felony, second
degree conspiracy, possession of a deadly weapon by a person
prohibited, theft, and third degree escape. His convictions
were affirmed on direct appeal. See Desmond v.
State, 654 A.2d 821 (Del. 1994).
1996, Desmond filed a petition for a writ of habeas corpus,
which this court denied after finding four claims were
procedurally barred and three claims were meritless. See
Desmond v. Snyder, 1999 WL 33220036 (D. Del. Nov. 16,
1999). Desmond filed a second petition for habeas relief,
which the Honorable Joseph J. Farnan, Jr. dismissed for lack
of jurisdiction because it was second or successive. See
Desmond v. Carroll, Civ. A. No. 02-1501-JJF, Order (D.
Del. Oct. 2, 2002). On August 13, 2003, the Court of Appeals
for the Third Circuit denied Desmond's application to
file a second or successive habeas petition. See In Re
Desmond, Civ. A. No. 03-2416, Order (3d Cir. Aug. 13,
2005, Desmond filed a Rule 60(b) motion for reconsideration
of the 1999 denial of his first habeas petition, arguing that
claims one, five, six, and seven of his 1996 habeas petition
should not have been dismissed for being procedurally barred.
This court denied the Rule 60(b) motion. See Desmond v.
Snyder, Civ. A. No. 96-327-GMS, Order (D. Del. Apr. 5,
2006). The Third Circuit Court of Appeals denied
Desmond's motion for a certificate of appealability with
respect to that decision. See Desmond v. Snyder,
Civ. A. No. 06-2359, Order (3d Cir. Nov. 30, 2006).
November 2011, Desmond filed a petition for writ of mandamus,
contending that his first degree robbery convictions should
be vacated pursuant to State v. Bridgers, 988 A.2d
939 (Del. Supr. Ct. 2007) and State v. Owens, 2010
WL 2892701 (Del. Super. Ct. July 16, 2010). See Desmond
v. Phelps, 2012 WL 3518531 at *1 (D. Del. Aug. 15,
2012). The Honorable Leonard P. Starks dismissed the petition
after determining that it constituted an unauthorized second
or successive habeas petition. Id. at *2.
2013, Desmond filed a Rule 59(e)/Rule 60(b) motion for
reargument, which this court denied. See Desmond v.
Snyder, Civ. A. No. 96-327-GMS, Memorandum Order (D.
Del. Dec. 19, 2013). The Third Circuit Court of Appeals
denied Desmond's motion for a certificate of
appealability with respect to that decision,  and then denied
his petition for rehearing. See Desmondv. Snyder,
Civ. A. No. 14-1005, Order (3d Cir. June 24, 2014).
September 2014, Desmond filed a Rule 59(e)/Rule 60(b) motion
to reopen the court's 2013 decision denying his Rule
59(e)/Rule 60(b) motion. (D.I. 93) The court denied the 2014
Rule 59/Rule 60(b) motion (D.I. 96; D.I. 97), and the Third
Circuit denied Desmond's request for a certificate of
appealability. (D.I. 102)
2016, Desmond filed several more Rule 60(b) motions to
reconsider the court's denial of his habeas petition
(D.I. 101; D.I. 104; D.I. 106; D.I. 107), which this court
denied. (D.I. 110; D.I. Ill) The Third Circuit denied
Desmond's request for a certificate of appealability.
pending before the court is Desmond's newest Rule
59(e)/Rule 60(b) motion to reopen ("motion to
reopen") both his original petition and his 2016 Rule
60(b) motions. (D.I. 123 at 1; D.I. 124) Desmond argues that
that the court should vacate its prior decisions in
"D.I. 54, D.I. 110, [and] D.I. Ill. because those
decisions conflict directly with the United States Supreme
Court's decision in Buck [v. Davis, 137
S.Ct. 759 (2017)]." (D.I. 123 at 1) After filing the
pending motion to reopen, Desmond filed two motions to amend
his motion to reopen (D.I. 124; D.I. 129), and a motion for
the appointment of counsel (D.I. 125).
II. STANDARD OF REVIEW
motion for reconsideration may be filed pursuant Federal Rule
of Civil Procedure 59(e) or Federal Rule of Civil Procedure
60(b). Although motions for 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 59(e) is "a
device to relitigate the original issue decided by the
district court, and [it is] used to allege legal error."
Fiorelli, 337 F.3d at 288. 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. Max's Seafood Cafe v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). A motion filed pursuant to Rule
59(e) must be filed no later than twenty-eight days after the
entry of the judgment. See Fed. R. Civ. P. 59(e).
contrast, "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,  but may be granted only in
extraordinary circumstances. Moolenaar v. Gov't of
Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).
Notably, a motion for 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).
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