Benge v. Deloy et al

Filing 34

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/14/2012. (lih)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOHN H. BENGE,
Petitioner,
v.
G.R. JOHNSON, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.

)

)

)

)
) Civ. Act. No. 08-78-GMS
)
)
)
)
)

)

MEMORANDUM
I. INTRODUCTION
In March, 2011, the court denied petitioner John H. Benge's petition for a writ of habeas
corpus filed pursuant to 28 U.S.c. § 2254 after determining that his double jeopardy and
ApprendilBlakely claims lacked merit and his involuntary plea claims were procedurally barred.

(D.I. 32) Presently pending before the court is Benge's motion to alter or amend judgment filed
pursuant to Federal Rule of Civil Procedure 59(e). (D.I. 33)

II. STANDARD OF REVIEW
Rule 59(e) is "a device to relitigate the original issue decided by the district court, and [it
is] used to allege legal error." United States v. Fiorelli, 337 F.3d 282,288 (3d Cir. 2003).
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. Max's Seafood Cafe v. QUinteros,

176 F.3d 669, 677 (3d Cir. 1999). A motion for reargument and/or reconsideration is not
appropriate to reargue issues that the court has already considered and decided. Brambles USA
Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990).

III. DISCUSSION
Rule 59(e) states that a "motion to alter or amend a jUdgment must be filed no later than
28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). The court denied Benge's
petition on March 31, 2011. (D.1. 32) The instant motion is dated April 28, 2011, the envelope
in which the motion was mailed is post-marked April 29, 2011, and the motion was docketed on
May 2, 2012 (D.1. 33) Applying the prisoner mailbox rule to the date on Benge's motion, the
court concludes that the instant motion is timely.
Nevertheless, the court concludes that Benge's motion fails to warrant relief. Benge
contends that the court incorrectly denied claim one as procedurally barred, because the
confusion created during the plea colloquy regarding the penalty to be imposed constituted cause
for Benge's procedural default of the claim at the state court level. Benge also contends that the
court incorrectly denied claim three, and reasserts his argument that the enhancement of his
sentence violated Blakely v. Washington, 542 U.S. 296 (2004). However, neither of these
arguments warrant reconsideration of the court's decision, because they merely assert Benge's
disagreement with the court's conclusion, and attempt to reargue issues already decided.
Accordingly, the court will deny Benge's Rule 59(e) motion.

IV. CONCLUSION
For the aforementioned reasons, the court will deny Benge's Rule 59(e) motion. In
addition, the court will not issue a certificate of appealability, because Benge has failed to make a
2

"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 22.2 (2011). A separate order will be
entered.

H~
DATE

Ii,).o/y
I

3