Kostyshyn v. Markell et al

Filing 5

MEMORANDUM ORDER- denying 4 MOTION for Reconsideration re 3 Order Dismissing Petition for Writ of Habeas Corpus. Signed by Judge Sue L. Robinson on 3/6/2012. (lih)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

PETER KOSTYSHYN,

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) Civ. No. 11-551-SLR

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Petitioner,
v.

J. MARKELL, Governor, et. ai,
Responden~.

MEMORANDUM ORDER
At Wilmington this

lD-tr

day of March, 2012, having reviewed the above

captioned case;
IT IS ORDERED that petitioner Peter Kostyshyn's ("petitioner") motion for
reargument (D.I. 4) is DENIED, for the reasons that follow:
1. Background. In his habeas application, petitioner alleged that the Delaware
state courts were denying him his constitutional right to effective representation by
counsel on appeal. (D. I. 1) Petitioner asked this court to order the federal public
defender'S office to represent him in said appeal. Given the appellate status of
petitioner's state court case, the court dismissed his application without prejudice for
failure to exhaust state court remedies. (D.I. 3)
2. Standard of Review. Pursuant to Local Rule 7.1.5, a motion for reargument
should be granted sparingly. D. Del. LR 7.1.5 (2010). The principles governing such
motions are as follows: (1) reargument should be granted only when the merits clearly
warrant and should never be afforded a litigant if reargument would not result in an
amendment of an order; (2) the purpose of reargument is to permit the court to correct

error without unduly sacrificing finality; and (3) a motion for reargument may not be
used by the losing litigant as a vehicle to supplement or enlarge the record provided to
the court and upon which the merits decision was made unless "new factual matters not
previously obtainable have been discovered since the issue was submitted to the
court." Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293, 295 (D. Del. 1998). A
motion for reargument can only be granted if the court patently misunderstood a party,
the court made a decision outside the adversarial issues presented to the court by the
parties, or the court made an error of apprehension rather than of reasoning; a motion
that simply "rehashes materials and theories already briefed, argued, and decided"
should be denied. Id.
3. Discussion. The court dismissed petitioner's application as unexhausted
because he indicated that his appeal was still pending. Now, in his motion for
reargument, petitioner provides further argument as to why this court should grant his
request for representation in his state appeal, without addressing the issue of
exhaustion. Accordingly, the court concludes that petitioner has failed to satisfy the
standards for granting reargument.
4. The court also declines to issue a certificate of appealability, because movant
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.
L.A.R. 22.2 (2011).

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IT IS FURTHER ORDERED that the clerk of the court shall close the case.

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