Marvel v. Phelps et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 2/19/13. (cla, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
) Civ. Act. No. 08-837-GMS
In February, 2012, the court denied petitioner Larry Marvel's petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 after determining that his claims were procedurally
barred. (D.I. 31) Presently pending before the court are Marvel's: (1) "motion for relief from
judgment or order pursuant Federal Rule of Civil Procedure 60(b)(6)" (D.I. 36); (2) his amended
Rule 60(b) motion (D.I. 38); and (3) his second motion to amend his Rule 60(b) motion (D.L 42).
The court will treat all three motions as Rule 60(b) motions.
II. STANDARD OF REVIEW
A motion for reconsideration filed pursuant to Federal Rule of Civil Procedure 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). Rule 60(b) motions are addressed to the sound
discretion of the trial court, and are 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).
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 ("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 application without first obtaining approval from the Court of
Appeals and, absent such authorization, a district court cannot consider the merits of a
subsequent application. 28 U.S.C. § 2244(b)(3)(A); Robinson v. Johnson, 313 F.3d 128, 139-40
(3d Cir. 2002).
Marvel's Rule 60(b) motions allege that the court erred in determining that he had
procedurally defaulted the ineffective assistance of counsel claim he was attempting to use as
cause for his procedural default of claims two, three, and four on direct appeal. This argument
challenges the manner in which Marvel's § 2254 petition was denied. Therefore, the court will
treat the motions as true Rule 60(b) motions.
Nevertheless, Marvel's requests for reconsideration are unavailing. Marvel contends that
the court confused his allegations of ineffective assistance during the trial with his allegations of
ineffective assistance during his direct appeal, and that the court mistakenly believed that his
claim alleging ineffective assistance of counsel on direct appeal was not properly presented or
adjudicated in the State courts. Contrary to Marvel's assertion, however, the court was not
confused about Marvel's ineffective assistance of counsel claims. Rather, the court concluded
that counsel's failure to present claims two, three, and four on direct appeal could not constitute
cause for his procedural default of those claims, because Marvel failed to present his allegation
regarding counsel's failure with respect to claims two, three, and four as an ineffective assistance
of counsel claim in his Rule 61 appeal.
Additionally, the Court of Appeals for the Third Circuit denied Marvel's request for a
certificate of appealability. (D.I.43) In reaching this decision, the Third Circuit explicitly held
that "the District Court was correct in its ruling that appellant's cognizable habeas corpus claims
are barred due to a procedural default, and that he failed to show cause and prejudice or that
failure to consider his claims would result in a miscarriage ofjustice." ld.
In these circumstances, the court concludes that Marvel has failed to present the court
with any reason to conclude that it should reconsider its earlier denial of his petition.
For the aforementioned reasons, the court will deny the instant Rule 60(b) motions. In
addition, the court will not issue a certificate of appealability, because Marvel 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 22.2 (2011). A separate order
will be entered.
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