Cousins v. Carroll et al

Filing 24

MEMORANDUM. Signed by Judge Leonard P. Stark on 2/27/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

DANIEL R. COUSINS,

Petitioner,
Civ. A. No. 05-212-LPS

v.

PERRY PHELPS, Warden, and JOSEPH
R. BIDEN, III, Attorney General
of the State of Delaware,
Respondents.

MEMORANDUM
I.

INTRODUCTION
Pending before the Court is Petitioner Daniel R. Cousins' ("Petitioner") Motion to

Amend his Pleading, which the Court construes as a Motion for Reconsideration Filed Pursuant
to Federal Rules of Civil Procedure 59(e) and 60(b) regarding the dismissal of his time-barred
Application for habeas relief. I (D.1. 23) For the reasons discussed, the Court will deny the
Motion for Reconsideration.

II.

BACKGROUND
In 2005, Petitioner filed an Application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, seeking relief from his Delaware state convictions for first degree rape, fourth degree

rape, and first degree unlawful sexual contact. (D.1. 2; D.1. 3) The Application asserted nine
grounds for relief. On May 19,2006, the Honorable Joseph J. Farnan, Jr. denied the Application

IAlthough the Motion is titled "Motion to Amend Pleading," Petitioner explicitly states
that he "is filing the accompanying motion under Rules 59(e) and 60(b) as a primary alternative
to the District Court accepting and ruling on the Habeas Corpus motion which he files more as a
motion to reconsider and correct clear errors oflaw." (D.1. 23 at 5)

after concluding that it was time-barred by the one-year statute of limitations prescribed in 28
U.S.c. § 2244. (0.1. 17; 0.1. 18) Petitioner appealed that decision. In December, 2006, the
Court of Appeals declined to issue a certificate of appealability and terminated the appeal. (D.!.
22) Petitioner filed the instant Motion for Reconsideration in April, 2012. (D.I.23)

III.

STANDARD OF REVIEW
A 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 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,

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't of Virgin Islands, 822 F.2d 1342, 1346
(3d Cir. 1987).
In contrast, 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

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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).

IV.

DISCUSSION
Petitioner filed the instant Motion for Reconsideration almost six years after his habeas

Application was denied. Therefore, to the extent the Motion is filed pursuant to Rule 59(e), it is
clearly time-barred. See Fed. R. Civ. P. 59(e) ("[A] motion to alter or amend a judgment must be
filed no later than 28 days after the entry ofthe judgment.").
To the extent the Motion is filed pursuant to Rule 60(b), the Court must first determine if
the Motion constitutes a "true" motion for reconsideration, or if it constitutes a second or
successive habeas application under the Antiterrorism and Effective Death Penalty Act
("AEDPA"). See Gonzalez v. Crosby, 545 U.S. 524 (2005). 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).
In his Motion, Petitioner asserts that the Delaware trial court violated his fundamental
constitutional rights and that defense counsel provided ineffective assistance. These arguments
do not challenge the manner in which Petitioner's § 2254 Application was denied but, rather,
they collaterally attack his underlying conviction. The Court also notes that Petitioner raised
variations of these same arguments in his previously-denied § 2254 Application. For these
reasons, the Court concludes that the instant Rule 60(b) Motion is a second or successive § 2254

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application. See 28 U.S.C. § 2244(a),(b)(3); 28 U.S.C. § 2254.
Under AEDP A, a prisoner cannot file a second or successive habeas application without
first obtaining approval from the Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A). In tum,
absent such authorization, a district court cannot consider the merits of a subsequent application.
See id.; see also Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002). The 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 Petitioner's Motion/second or successive
habeas application for lack of jurisdiction. See 28 U.S.C. § 2244(b)(1); Robinson, 313 F.3d at
139 (holding when 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. § 1631 ").
In addition, even if the Court were to treat the Rule 60(b) Motion as a true motion for
reconsideration rather than as a second or successive habeas application, the Motion was not filed
"within a reasonable time" of the decision being contested. See Fed. R. Civ. P. 60(b)(6). The
Honorable Joseph J. Farnan, Jr. denied Petitioner's habeas Application on May 19,2006, and the
Third Circuit denied his request for a certificate of appealability on December 14,2006.
Petitioner, however, did not file the instant Rule 60(b) Motion until April 16, 2012, and he has
not provided a compelling justification for this long delay. Therefore, the Motion is untimely.
See Moolenaar, 822 F.2d at 1348 (finding Rule 60(b)(6) motion brought after almost two year
delay to be untimely).
Accordingly, Petitioner has failed to present the Court with any reason to conclude that it
should reconsider the denial of his 2005 habeas Application.

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v.

CONCLUSION

For the above reasons, the Court will dismiss the instant Motion for Reconsideration for
lack ofjurisdiction because it constitutes a second or successive habeas application under 28
U.S.C. § 2244. Alternatively, the Motion is time-barred under Rules 59(e) and 60(b)(6). The
Court also declines to 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 also
United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3d Cir. LAR 22.2 (2011). A separate Order
will be entered.

Dated: February 27, 2013
UNITED STATES DISTRICT JUDGE

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