United States District Court, D. Delaware
CHRISTOPHER R. DESMOND, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
1992, a Delaware Superior Court jury convicted Petitioner 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, Petitioner filed a petition for a writ of habeas
corpus, which the Honorable Gregory M. Sleet 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). He 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
Petitioner's application to file a second or successive
habeas petition. See In Re Desmond, Civ. A. No.
03-2416, Order (3d Cir. Aug. 13, 2003).
2005, Petitioner 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. The Honorable Gregory M. Sleet
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 Petitioner'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).
2011, Petitioner filed a Petition for Writ of Mandamus
contending that two Delaware state court decisions (State
v. Bridgers, 988 A.2d 939 (Del. Super. Ct. 2007),
qff'd, State v. Bridgers, 970 A.2d 257 (Table),
2009 WL 824536 (Del. Mar. 30, 2009), and State v.
Owens, 2010 WL 2892701 pel. Super. Ct. July 16, 2010))
demonstrated that the Delaware state courts and the District
Court of Delaware misinterpreted the first degree robbery
statute, Del. Code Ann. tit. 11, § 832, in refusing to
vacate his convictions for eight counts of first degree
robbery. See Desmond v. Phelps, 2012 WL 3518531 (D.
Del. Aug. 15, 2012). The instant case was opened and this
Court dismissed the Petition for lack of jurisdiction after
determining that it constituted an unauthori2ed second or
successive habeas petition. See Id. at *3. The Court
also noted that, even were it to treat the filing as a
request for mandamus relief, such relief was not available to
him on the facts presented. (D.I.17 at 4-5) The Court of
Appeals for the Third Circuit affirmed that decision on March
15, 2013. (D.I. 23)
pending before the Court are Petitioner's newest Rule
59(e)/Rule 60(b) Motions to Reopen/Reconsider ("Motions
for Reconsideration") his Petition for Writ of Mandamus
pursuant to Buck v. Davis, 137 S.Ct. 759 (2017).
(D.I. 25; D.I. 26) After filing the pending Motions for
Reconsideration, Petitioner filed a Motion for the
Appointment of Counsel (D.I. 27).
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. See 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. See 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 28 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. See Moolenaar v. Gov't
of Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). A
motion for reconsideration is not an occasion 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 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 appropriate court of appeals and, absent
such authorization, a district court cannot consider the
merits of a subsequent application. See 28 U.S.C.
§ 2244(b)(3)(A); Robinson v. Johnson, 313 F.3d
128, 139-40 (3d Cir. 2002).