United States District Court, D. Delaware
2006, the Honorable Gregory M. Sleet denied Petitioner Johnny
Lopez's ("Petitioner") Petition for a Writ of
Habeas Corpus filed Pursuant to 28 U.S.C. § 2254. (D.I.
23) Presently pending before the Court is Petitioner's
fifth Motion to Reopen his case. (D.I. 52)
STANDARD OF REVIEW
motion to reopen/reconsider should be granted to correct
manifest errors of law or fact or to present newly discovered
evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). Accordingly, a court may grant a motion
to reopen/reconsider if the moving party shows one of the
following: (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)(citing North River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d
Cir. 1995)). A motion to reopen/reconsider 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 motion to
reopen/reconsider after it has denied the petitioner's
federal habeas petition, the court must first determine if
the motion constitutes a second or successive petition 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 petition without first obtaining approval
from the Court of Appeals. Absent such authorization, a
district court cannot consider the merits of a subsequent
petition. 28 U.S.C. § 2244(b)(3)(A); Robinson v.
Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002).
original habeas Petition that was denied in 2006 asserted the
following two claims: (1) the search of Petitioner's
residence and the seizure of the cocaine violated the Fourth
and Fourteenth Amendments; and (2) Petitioner's
conviction was illegal because he was not present during jury
selection. (D.I. 1) Petitioner's instant Motion to Reopen
appears to assert that he is entitled to federal habeas
relief because the Delaware Supreme Court's 2004 written
opinion affirming his convictions was unsigned. (D.I. 52 at
2) Petitioner's argument does not challenge the manner in
which his § 2254 Petition was denied, but rather,
collaterally attacks his underlying conviction. Petitioner
could have, but did not, raise the instant argument in his
§ 2254 Petition. Therefore, the Court concludes that the
instant Motion to Reopen is a second or successive §
2254 Petition. See 28 U.S.C. § 2244(a),
(b)(3); 28 U.S.C. § 2254.
record reveals that Petitioner did not obtain permission from
the Third Circuit Court of Appeals to file the instant
Motion. Accordingly, the Court will dismiss the Motion to
Reopen for lack of jurisdiction because it constitutes an
unauthorized second or successive habeas petition.
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 only option is to dismiss the petition
or transfer it to the court of appeals pursuant to 28 U.S.C.
aforementioned reasons, the Court will dismiss the instant
Motion to Reopen because it constitutes an unauthorized
second or successive habeas petition under 28 U.S.C. §
2244. In addition, the Court will not issue a certificate of
appealability, because Petitioner has failed to make a
"substantial showing of the denial of a constitutional
right." 28 U.S.C.§ 2253(c)(2); see United
States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3d Cir. LAR
separate Order ...