Desmond v. Snyder, et al

Filing 110

MEMORANDUM. Signed by Judge Gregory M. Sleet on 8/23/16. (nmb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

CHRISTOPHER R. DESMOND,

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Petitioner,

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v.

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Civil Action No. 96-327-GMS

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ROBERT SNYDER,
Warden, and ATTORNEY
GENERAL OF THE STATE OF
DELAWARE,

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Respondents.

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MEMORANDUM
I.

INTRODUCTION
In 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).
In 1996, Desmond filed a petition for a writ of habeas corpus, which this court denied as
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

ofjurisdiction 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. 13,2003).
Thereafter, Desmond filed in this case a Rule 60(b) motion for reconsideration ofthe
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).
In 2013, Desmond filed a Rule 59(e) 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, See Desmond v. Snyder, Civ. A. No. 14-1005, Order (3d Cir. May
29,2014), and then denied his petition for rehearing. See Desmond v. Snyder, Civ. A. No. 14­
1005, Order (3d Cir. June 24,2014) .
In 2014, Desmond filed a motion to reopen the court's 2013 decision denying his Rule
59(e)/Rule 60(b) motion. (D.L 93) Desmond filed the motion to reopen pursuant to Federal
Rules of Civil Procedure 59(e) or 60(b)(6). Id. The court denied the motion (D.L 96; D.L 97)
and, in 2015, the Third Circuit Court of Appeals denied Desmond's motion for a certificate of
appealability related to that decision. (D.!. 98)
In 2016, Desmond filed three pending Rule 60(b) motions to reopen/reconsider his habeas
case and vacate the court's original decision to deny his petition. (D.L 101; D.L 104; D.L 106;
D.L 107)

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n.

STANDARD OF REVIEW

"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, See 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'/ o/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. See Brambles USA Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990).
Additionally, 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 ("AEDP A"). 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).

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III.

DISCUSSION
In his three pending Rule 60(b) motions, Desmond contends that his habeas proceeding

should be reopened/reconsidered because: (l) the recent Supreme Court case Montgomery v.
Louisiana, 136 S.Ct. 718 (2016) demonstrates that Martinez v. Ryan, 132 S.Ct. 1309 (2012)
applies retroactively to his case (D.1. 101 at 1, 3); and (2) the Delaware state courts and this court
failed to give full effect to Delaware Superior Court Criminal Rule 61 by applying a post­
conviction rule to defaults that occurred during his pre-conviction presumption of innocence (D.!
104 at 2; D.1. 106 at 2; D.l. 107 at 2). These arguments are unavailing.
In December 2013, the court denied Desmond's Rule 59(e)/Rule 60(b) motion, and the
Third Circuit denied Desmond's request for a certificate of appealability with respect to that
decision, explicitly noting that Desmond "did not demonstrate that Martinez v. Ryan, 132 S.Ct.
1309 (2012) constitutes an extraordinary circumstance [], or that he was harmed by the District
Court's failure to entertain his claims. []" (D.l. 92)(internal citations omitted) Less than one
month later, on June 12,2014, the Third Circuit issued a decision in Cox v. Horn, 757 F.3d 113
(3d Cir. 2014) discussing whether or not the Martinez decision constitutes an "extraordinary
circumstance" for Rule 60(b)(6) purposes. Notably, the Third Circuit declined to "adopt aper se
rule that a change in decisional law [such as Martinez], even in the habeas context," was
inadequate to constitute an "extraordinary circumstance" for Rule 60(b) purposes. Id. at 124.
Rather, it explained that a district court should employ a "flexible, multifactor approach to Rule
60(b) motions ... that takes into account all the particulars of a movant's case." Id. at 122.
Thereafter, Desmond filed a Rule 59/60(b) motion challenging the court's denial of his 2013
Rule 60(b) motion, arguing that the Cox decision demonstrates that the court erroneously denied

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his 2013 Rule 59(e)lRule 60(b) motion on the basis that the Martinez decision does not constitute
an "extraordinary circumstance" justifying relief under Rule 60(b). The court denied that motion
(0.1. 82; OJ. 83), and the Third Circuit denied Desmond's request for a certificate of
appealability, explaining that the "change in law effected by Martinez v. Ryan, 132 S.Ct. 1309
(2012), and discussed by this Court in Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014)

n, does not

support Appellant's motion because the procedurally defaulted claims in his § 2254 petition did
not involve ineffective assistance of trial counsel." (0.1.92 at 2); Desmondv. Warden, Civ. A.
No. 15-3248, Order (3d Cir. Mar. 2,2016). The Third Circuit's reasoning clearly demonstrates
that Desmond's instant Montgomery/Martinez argument does not warrant reopening/
reconsidering Desmond's habeas petition or previous motions for reconsideration.
The court also rejects Desmond's contention that the Delaware state courts and this court
somehow improperly construed Delaware Superior Court Criminal Rule 61 and improperly
applied it to his case. His mostly incomprehensible argument that Rule 61 does not apply
because he was presumptively innocent before the default occurred does not warrant
reopening/reconsidering his habeas petition. To the extent the argument challenges the validity
of his convictions, it constitutes an unauthorized second or successive habeas request.
Accordingly, the court will deny the instant three Rule 60(b) motions. Given its
determination that Desmond's habeas proceeding should be not be reopened/reconsidered, the
court will deny as moot Desmond's motion to appoint counsel (D.!. 103) and his motion to
expand the record (OJ. 108).

IV.

CONCLUSION
For the aforementioned reasons, the court will deny Desmond's Rule 60(b) motions to

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reopen/reconsider, and deny his other pending motions as moot. In addition, the court will not
issue a certificate of appealability, because Desmond has failed to make a "substantial showing
of the denial ofa constitutional right." 28 U.S.c. § 22S3(c)(2); see United States v. Eyer, 113
F.3d 470 (3d Cir. 1997); 3d Cir. LAR 22.2 (2011). A separate order will be entered.

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