Lopez v. Phillips et al

Filing 21

MEMORANDUM ORDER- denying 20 MOTION for Reconsideration re 19 Order Dismissing Petition for Writ of Habeas Corpus filed by Carlos Lopez. Signed by Judge Renee Marie Bumb on 11/28/2011. (lih)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
:
:
:
Petitioner,
:
:
v.
:
:
PERRY PHELPS, Warden, and
:
ATTORNEY GENERAL OF THE STATE :
OF DELAWARE,
:
:
Respondents.
:
:
CARLOS LOPEZ,

Civil No. 10-254(RMB)

MEMORANDUM ORDER

BUMB, District Judge
THIS MATTER comes before the Court upon pro se petitioner
Carlos Lopez’s (“Lopez”) motion for reconsideration (“motion”)
(Docket entry no. 20)of this Court’s July 27, 2011 Opinion and
accompanying Order denying as time-barred Lopez’s petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(“petition”).

(Docket entry no. 18; Docket entry no. 19) Lopez

now asserts three arguments in support of his motion for
reconsideration.

For the following reasons, Lopez’s motion is

denied.
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.”
524, 528 (2005).

Gonzalez v. Crosby, 545 U.S.

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.

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.
Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999).

A “postjudgment motion requesting alteration or amendment

of the judgment but denominated as something other than a motion
under Rule 59 is generally treated as having been made under Rule
59(e) . . . if the motion was filed within the [time] period
allowed for a Rule 59(e) motion.”

U.S. ex rel McAllen v. City of

New York, 248 F.3d 48, 53 (2d Cir. 2001).
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Nevertheless, a motion

for 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), and courts
should grant such motions sparingly.

Douris v. Schweiker, 229 F.

Supp. 2d 391, 408 (E.D. Pa. 2002).
After viewing the instant motion within the framework
established by the aforementioned principles, the Court concludes
that Lopez has presented a timely Rule 59(e) motion.1

In turn,

because none of the three arguments asserted by Lopez point to an
intervening change in controlling law or the availability of new
evidence not previously available, the Court construes Lopez’s
motion as a request to correct a clear error of law or fact or to
prevent manifest injustice.
Lopez’s first contention is that his petition is not
time-barred pursuant McKinney v. United States, 208 F.2d 844
(C.A.D.C. 1953), which held that a petitioner’s tardiness is
“irrelevant” when a constitutional issue is raised by a
petitioner who is still confined in prison.
argument is unavailing.

Id. at 847.

This

When McKinney was decided in 1953, there

was no time limitation for filing a § 2254 petition.

However,

the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) was enacted in 1996, and habeas petitions filed after
its enactment are subject to AEDPA’s one-year limitations period.

1

Lopez filed the instant motion on August 3, 2011, which was
well within Rule 59(e)’s twenty-eight (28) day filing period.
See Fed. R. Civ. P. 59(e).
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Thus, becase Lopez filed his petition after AEDPA’s enactment and
AEDPA has superseded McKinney, Lopez’s first argument does not
warrant reconsideration of the Court’s earlier decision that his
petition is time-barred.
Lopez’s next argument for reconsideration is that his
attorney violated Del. Code Ann. tit. 11, § 3509 by offering the
testimonial out-of-court statement of Joey Torres in lieu of
calling Torres to testify at trial.

This contention, however,

merely re-asserts a claim presented in Lopez’s § 2254 petition
and, therefore, does not provide a proper basis for granting his
motion.

Additionally, this second argument alleges an error of

state law, and it is well-established that claims based on errors
of state law are not cognizable on habeas review.
McGuire, 502 U.S. 62, 67-68 (1991).

See Estelle v.

For both of these reasons,

the Court concludes that the instant argument does not warrant
reconsideration of its prior decision.
Finally, Lopez contends that reconsideration is warranted
because he was denied access to the courts.

However, by

specifically asserting that (1) he is unable to read English, (2)
the prison library does not provide any legal materials in the
Spanish language, and (3) the library fails to offer the
assistance of any “approved, educated, trained paralegal that
holds a degree,” the Court construes Lopez’s argument to be that
equitable tolling is warranted under the recent Third Circuit
case, Pabon v. Mahonoy, 654 F.3d 385 (3d Cir. 2011).
In order to better understand Lopez’s argument, the Court
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will provide a brief summary of Pabon.

Pabon involved prisoner

Pabon’s appeal of the dismissal of his pro se habeas petition as
untimely, wherein Pabon argued that his inability to speak, read,
or write English, coupled with the prison’s lack of Spanishlanguage legal materials and repeated denials of translation
materials, were extraordinary circumstances warranting equitable
tolling.

After articulating the general holding that a

petitioner’s “inability to read or understand English, combined
with denial of access to translation or legal assistance, can
constitute extraordinary circumstances that trigger equitable
tolling,”

Id. at 400 (emphasis added), the Third Circuit

reversed the dismissal of Pabon’s petition as time-barred and
remanded the case to the District Court for an evidentiary
hearing on the issue of equitable tolling.

The Third Circuit

explained that there was “substantial evidence in the record that
Pabon may have faced an extraordinary circumstance,” because “he
has consistently claimed to be a non-English speaker, required a
translator in his interactions with police and the court system,
lacked access to legal materials or notice of AEDPA in Spanish in
the RHU where he was housed for five years, and was repeatedly
denied legal materials in Spanish or translation assistance.”
Pabon, 654 F.3d at 401.
With respect to Lopez’s case, the State argued the Court
should deny his petition as time-barred.

In his reply, Lopez

asserted that he “is Spanish, speaks fluent Spanish, and has a
problem with English.” (D.I. 15 at 5) Given its duty to liberally
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construe pro se filings, the Court considered Lopez’s vague
assertion as an attempt to trigger equitable tolling and reviewed
his argument under the recently articulated Pabon test.
Nevertheless, the Court concluded that Lopez’s argument did not
warrant equitable tolling because he failed to allege “that he
requested, but was unable to obtain, translation assistance prior
to the expiration of AEDPA’s one-year limitations period, or that
the prison law library lacked materials in his native language
that were necessary for him to file a timely § 2254 petition.”
(D.I. 18 at 13) In summary, the Court denied the petition as
time-barred after concluding that statutory tolling did not
render Lopez’s petition timely and that equitable tolling was not
warranted.
Now, although Lopez’s motion presents an equitable tolling
argument which more closely resembles the one asserted in Pabon,
the Court still concludes that his argument fails to trigger the
equitable tolling necessary to render his petition timely filed.
To begin, for the purposes of this motion only, the Court accepts
Lopez’s assertion that he is unable to read English, as well as
his assertion that the legal materials in the prison law library
are written in the English language.

Significantly, however,

Lopez does not contend that he was denied access to translation
of such materials.

In fact, the documents filed in this

proceeding and in his state collateral proceedings are in English
and well-written, indicating that Lopez was either proficient
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enough in the English language to complete the filings himself or
that he received assistance in translating the English materials
to Spanish and in drafting his filings in English.2

Thus, the

Court cannot conclude that Lopez’s untimely filing was due in any
part to a lack of access to translation,3 and it would appear
that equitable tolling is not available under Pabon for this
reason alone.4

2

Nothing in the record indicates that someone other than
Lopez prepared the documents filed in his collateral proceedings
in state court or in this Court.
3

The record in this case reveals that Lopez has been housed
at the James T. Vaughn Correctional Center for his entire time of
imprisonment, and there is no indication that his limited
proficiency in English is a new occurrence or that the prison
library’s offerings with respect to legal resources and legal
assistance have changed over the years. Interestingly, Lopez’s
limited proficiency in reading the English language and the
alleged lack of non-Spanish prison library resources did not
prevent him from completing and filing three timely pro se Rule
35 motions and one timely pro se Rule 61 motion in the Delaware
Superior Court between May 2007 and July 2009, and Lopez has not
explained why the legal assistance and resources provided by the
library were sufficient when he was pursuing his post-conviction
claims in the Delaware state courts, yet were somehow
insufficient during his pursuit of those same or similar claims
in a § 2254 petition.
4

In explaining its reason for remanding Pabon’s case for an
evidentiary hearing, the Third Circuit focused on Pabon’s lack of
access to translated materials or translation assistance, with
only one brief statement regarding a denial of access to legal
assistance in the general sense. See Pabon, 654 F.3d at 401 (“We
disagree, as the evidence currently before us supports the
contrary conclusion – that Pabon has continued to face a language
barrier until is habeas petition was filed, as he had been unable
to obtain legal or translation assistance despite continuing
efforts.”). Additionally, at the end of its Opinion, the Third
Circuit stated,
[b]ecause we hold that language inability, when coupled with
lack of translation assistance, may constitute an
extraordinary circumstance, and because Pabon was reasonably
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Nevertheless, the Court also rejects Lopez’s contention that
equitable tolling is warranted because he was provided with
inadequate legal assistance, as demonstrated by the fact that (1)
none of the library paralegals hold a “degree,” and (2) the
paralegals were unable to produce a successful “non frivolous”
petition. (Docket entry no. 20 at 2) Simply stated, Lopez fails
to recognize that equitable tolling may be triggered under Pabon
only when there has been a denial of access to legal assistance,
not when the legal assistance provided is theoretically sub-par.5

diligent in pursuing his claims, we conclude that the
District erred in dismissing Pabon’s equitable tolling claim
without considering the evidence he offered.
Id. at 403. Although this statement and the Third Circuit’s
reasoning strongly suggest that a petitioner’s access to
translated materials and/or access to translation assistance is
sufficient to defeat an argument for equitable tolling based on a
language barrier, the Third Circuit’s use of the phrase “or legal
assistance” in its specific holding (equitable tolling may be
warranted when a petitioner’s “inability to read or understand
English [is] combined with denial of access to translation or
legal assistance”) indicates that a court must consider both the
denial of access to translation and the denial of access to
general legal assistance when deciding if equitable tolling is
appropriate. Exercising prudence, in this Memorandum Order the
Court will consider both prongs as specifically articulated by
the Third Circuit.
5

In reaching this conclusion, the Court acknowledges the
well-settled Supreme Court precedent that an inmate is entitled
to access to an adequate law library or “adequate assistance from
persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828
(1977). However, “because Bounds did not create an abstract,
free-standing right to a law library or legal assistance, an
inmate cannot establish relevant actual injury [sufficient to
establish a viable claim for denial of access to the courts]
simply by establishing that his prison’s law library or legal
assistance program is sub-par in some theoretical sense.” Lewis,
518 U.S. at 351. Rather, the “inmate must go one step further
and demonstrate that the alleged shortcomings in the library or
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See Lewis v. Casey, 518 U.S. 343, 351 (1996).

In other words,

neither the existence or absence of a paralegal’s degree, nor an
unsuccessful attempt to obtain habeas relief, demonstrates that
Lopez was denied access to legal assistance.6
Additionally, Lopez has not submitted any evidence that he
sought translation and/or legal assistance before the AEDPA’s
filing deadline, nor has he submitted evidence that such efforts,

legal assistance program hindered his efforts to pursue a legal
claim.” Id.
6

Bounds does not impose a requirement that the person
providing legal assistance hold a degree, only that the person be
“trained in the law.” Significantly, Lopez’s unsupported
statement regarding the absence of any paralegals with a degree
fails to demonstrate that such assistance was rendered by persons
untrained in the law.
Moreover, as explained in Lewis, Bounds does not guarantee a
“particular methodology but rather the conferral of a capability
– the capability of bringing contemplated challenges to sentences
or conditions of confinement before the courts.” Lewis, 518 U.S.
at 356 (emphasis added). At least one other court has concluded
that “the term ‘adequate’ as used in Bounds to modify ‘assistance
from persons trained in the law,’ refers not to the effectiveness
of the representation, but to the adequacy of the prisoner’s
access to his or court-approved counsel or other law-trained
assistant.” Schrier v. Halford, 60 F.3d 1309, 1313-14 (8th Cir.
1995). Notably, Lopez does not contend that his access to the
library’s paralegals or legal assistance program was denied, or
even limited, in any way.
And, finally, Lopez has failed to demonstrate how the fact
that the paralegals do not hold degrees, if true, hindered his
efforts to pursue the claims asserted in his petition. For
instance, although Lopez contends that the assistance provided by
the paralegals was inadequate because the petition they helped
him draft was denied for failing to present a “non frivolous”
claim, the petition was denied for being time-barred, not for
being meritless. Lopez does not allege that the paralegals
provided incorrect information regarding the limitations period.
Additionally, many licensed and experienced attorneys are
unsuccessful in their attempts to obtain habeas relief for their
clients, either because the claims are meritless or because the
petitions are time-barred or otherwise barred.
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if sought, were denied.

Therefore, Lopez has failed to

demonstrate that he exercised the type of reasonable diligence in
pursuing his claims that is necessary to trigger equitable
tolling.

See Pabon, 654 F.3d at 402 (describing Pabon’s numerous

efforts seeking both legal and translation assistance).
For all of these reasons, the Court cannot conclude that
Lopez was denied access to translation and/or legal assistance.
As a result, the Court also cannot conclude that Lopez’s limited
proficiency in the English language combined with the
circumstances he has described created such a severe obstacle
that he was prevented from timely filing his habeas petition.
Therefore, Lopez’s equitable tolling argument does not warrant
reconsideration of the Court’s earlier decision.
Additionally, to the extent the Court must consider whether
to issue a certificate of appealability, the Court declines to do
so because Lopez 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).
Accordingly, IT IS ON THIS 28th day of November 2011,
ORDERED that Lopez’s motion for reconsideration (D.I. 20) is
DENIED.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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