Marvel v. Phelps et al

Filing 57

MEMORANDUM -Signed by Judge Gregory M. Sleet on 12/26/13. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

LARRY MARVEL,
Petitioner,

v.
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.

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) Civ. Act. No. 08-837-GMS
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MEMORANDUM
I.

INTRODUCTION
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) Marvel appealed. The Third Circuit Court of Appeals declined to issue a
certificate of appealability in an order dated August 28, 2012, explaining that ')urists of reason
would not find it debatable 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 or prejudice or that failure to consider his claims would result in a fundamental
miscarriage ofjustice." (0.1. 43)
While his appeal was pending, Marvel filed in this court a "motion for relief from
judgment or order pursuant Federal Rule of Civil Procedure 60(b)(6)" (0.1.36), and two
amended Rule 60(b) motions (0.1.38; 0.1. 42). On February 19,2013, viewing the

aforementioned motions as one single motion, the court denied Marvel's Rule 60(b) motion and
refused to reconsider its decision denying Marvel's habeas petition. (D.L 45; D.L 46)
In a letter dated February 18,2013, but received by the court on February 20,2013,
Marvel asked the court to excuse his procedural default of claim two (due process
violation/improper indictment), claim three (First Amendment violation stemming from
testimony regarding coded letter), and claim four (insufficient evidence to sustain conviction for
criminal solicitation) of his original habeas petition pursuant to the recent Supreme Court case,

Martinez v. Ryan, 132 S.Ct. 1309,1318 (2012). Because this letter was received by the court one
day after it denied Marvel's Rule 60(b) motion, it did not consider Marvel's Martinez argument
during its review of the Rule 60(b) motion. Consequently, on February 26, 2013, Marvel filed a
Rule 59 motion to alter or amend the court's February 19,2013 denial of his Rule 60(b) motion,
specifically contending that his procedural default of claims two, three, and four presented in his
original habeas petition should be excused under .Martinez because the State did not appoint
counsel to represent him during his state post-conviction proceeding. (D.L 48 at 2-3) The court
denied the motion after determining that l\1artinez was inapplicable to Marvel's case because the
procedurally barred claims at issue did not allege ineffective assistance of trial counseL (D.L 52;
DJ.53)
Presently pending before the court is Marvel's newest Rule 59(e) motion to alter or
amend the court's denial of his prior Rule 59(e) motion. (D.L 54) Marvel contends that the court
erred in concluding that the procedurally barred claims at issue in his Rule 60(b) did not allege
ineffective assistance of trial counseL Thus, he asserts that the court should apply l\1artinez to

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his case and review his claims on the merits.

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
The court is not persuaded by Marvel's convoluted and somewhat incomprehensible

argument that the claims in his petition actually allege independent claims of ineffective
assistance. As such, the court rejects Marvel's contention that the court committed an error in
construing his claims. Accordingly, the court will deny the instant Rule 59 motion.

IV.

CONCLUSION
For the aforementioned reasons, the court will deny the instant Rule 59 motion. In

addition, the court will not issue a certificate of appealability, because Marvel has failed to make
a "substantial showing of the denial ofa constitutional right." 28 U.S.C. § 2253(c)(2); see

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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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