United States District Court, D. Delaware
LARRY L. WARD, Petitioner,
STATE OF DELAWARE, Respondents.
HONORABLE LEONARD P. STARK, JUDGE
before die Court are Petitioner Larry L. Ward's Motions
for Rehearing En Banc (hereinafter referred to as
"Motion for Reconsideration") asking the Court to
reconsider its denial of his § 2254 Petition (D.I. 52;
D.I. 53) for lack of jurisdiction because it constituted an
unauthorized second or successive habeas petition (D.I. 54:
D.I. 55; D.I. 57). For the reasons discussed, the Court will
deny the Motions.
1989, a Delaware Superior Court jury convicted Petitioner
Larry L. Ward of attempted first degree intentional murder
under 11 Del. C. § 636(a)(1) and possession of a deadly
weapon during the commission of a felony. See Ward v.
State, 575 A.2d 1156, 1158 (Del. 1990); Ward v.
State, 115 A.3d 1216 (Table), 2015 WL 35365, at *1 pel.
May 28, 2015). The Superior Court sentenced him to life
imprisonment plus a term of years. Ward, 2015 WL
35365, at *1. The Delaware Supreme Court affirmed
Petitioner's convictions and sentences on direct appeal.
See Ward, 575 A.2d at 1160.
1992, Petitioner filed in this Court a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his 1989 convictions. The Honorable Roderick R. McKelvie
denied the petition as meritless. See Ward v.
Snyder, Civ. A. No. 92-359-RRM (D. Del. June 9, 1993).
filed a subsequent habeas petition in January 2002, which the
Honorable Joseph J. Farnan, Jr. dismissed for lack of
jurisdiction because it constituted an unauthorized second or
successive petition. See Ward v. Carroll, Civ. A.
No. 02-009-JJF (D. Del. Jan. 4, 2002). The Third Circuit
Court of Appeals denied Petitioner's request for a
certificate of appealability, holding that the Court had
properly dismissed the unauthorized second or successive
petition for lack of jurisdiction. See Ward v.
Carroll, No. 02-1262, Order (3d Or. May 14, 2002). The
Third Circuit also noted that Petitioner had previously
requested, and had been denied, permission to file a second
or successive habeas petition. Id.
Petitioner filed another Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 ("Petition")
challenging his 1989 convictions. (D.I. 3; D.I. 4) The
Petition's sole ground for relief asserted that
Petitioner's life sentence is illegal and should be
vacated because the crime for which he was convicted,
attempted first degree intentional murder, does not exist
under Delaware law. (D.I. 4 at 5, 8) The Court denied
Petitioner's § 2254 Petition on September 19, 2018
after determining that it constituted an unauthorized second
or successive habeas petition. (D.I. 52; D.I. 53) On October
2, 2018, Petitioner filed his first Motion for
Reconsideration. (D.I. 54) He filed two additional Motions
for Reconsideration (D.I. 55; D.I. 57) essentially
re-asserting the same grounds presented in his first Motion
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 Or. 2003). 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 for
reconsideration is not for rearguing issues that the court
has already considered and decided. See brambles USA Inc.
v. Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990).
Notably, when a motion for reconsideration is filed within 28
days of the entry of judgment, it must be considered under
Rule 59(e), not Rule 60(b). See Fed. R. Civ. P.
59(e) advisory committee's note (2009 amend.) (expanding
former 10-day time period for filing a motion to alter or
amend a judgment to 28 days); Rankin v. Hunter, 761
F.2d 936, 942 (3d Cir. 1985) ("Regardless how it is
styled, a motion filed within ten days of entry of judgment
questioning the correctness of a judgment may be treated as a
motion to alter or amend the judgment under Rule
titled "Motion for Rehearing En Banc," the Court
will treat the instant Motions as though filed pursuant to
Rule 59(e) because Petitioner filed the first Motion for
Reconsideration within 28 days after the entry of judgment.
In his Motions, Petitioner alleges that the Court erred in
dismissing his Petition as second or successive because his
argument that he was convicted of a crime that does not exist
in Delaware was unavailable to him when he filed his prior
requests for habeas relief. (D.I. 54 at 3; D.I. 55 at 3; D.I.
57 at 5) To support this contention, Petitioner contends that
Rambo v. State, 939 A.2d 1275, 1281 (Del. 2007),
which held that "[a]ttempted felony murder is not
recognized to be a crime in Delaware," was not decided
argument is unavailing. Contrary to his contention,
Petitioner was convicted of attempted first degree
intentional murder under 11 Del. C. § 636(a)(1), not
attempted felony murder under 11 Del. C. § 636(a)(2).
(D.I. 52 at 1; see also Ward v. State, 115 A.3d 1216
(Table), 2015 WL 3536598, at *1 (Del. May 28, 2015)
(affirming Superior Court's denial of same argument
because "[t]he record reflects that Ward was charged
with and convicted of Attempted Intentional Murder in the
First Degree under 11 Del. C. § 636(a)l").
Therefore, Rambo is inapplicable to Petitioner's
case. Additionally, while it is true that Rambo was
not decided until 2007, Petitioner always could have argued
that he believed he was convicted of attempted felony murder
under § 636(a)(2) rather than attempted first degree
intentional murder under 11 Del. C. § 636(a)(1). Given
these circumstances, the Court concludes that
Petitioner's allegations do not assert any intervening
change in law, the availability of previously unavailable
evidence, or a "clear error of law" of the sort
that would compel reconsideration of the Court's denial
of the § 2254 Petition. Accordingly, the Court will deny
Petitioner's Motions for Reconsideration.