Evans v. Denn

Filing 18

MEMORANDUM. Signed by Judge Richard G. Andrews on 7/25/18. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EV ANS,
Petitioner,
Civil Action No. 17-1495-RGA

V.

ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondent.

MEMORANDUM
In April 2012, the Honorable Leonard P. Stark denied as meritless Petitioner Augustus
Hebrew Evans' habeas Petition challenging his 2007 convictions. See Evans v. Phelps, 2012
WL 1134482 (D. Del. Apr. 2, 2012). Thereafter, Petitioner filed in this Court a Petition for a
Writ of Error Coram Nobis and two more habeas Petitions, as well as an application in the Third
Circuit for Authorization to File a Second or Successive Habeas Petition - all of which were
denied or dismissed. (D.I. 6 at 1-2) Pre.-.ently pending before the Court is Petitioner's Motion
for Reargument of the Court's dismissal of his most recent habeas Petition. (D.l. 11)
I.

STANDARD OF REVIEW
Pursuant to Local Rule 7.1.5, a motion for reargument should be granted sparingly. See

D. Del. LR 7.l.5(a). The decision to grant such a motion lies squarely within the discretion of
the district court. See Dentsply Int'l, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385,419 (D. Del.
1999); Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990). These types of
motions are granted only if the court has patently misunderstood a party, made a decision outside
the adversarial issues presented by the parties, or made an error not of reasoning but of

apprehension. See Schering Corp. v. Amgen, Inc., 25 F. Supp. 2d 293,295 (D. Del. 1998). To
succeed on a motion for reargument, the movant must show at least one of the following: ( 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. See Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999). A motion that simply "rehashes materials and theories already briefed, argued, and
decided" should be denied. Schering, 25 F. Supp. 2d at 295.

II.

DISCUSSION
In his Motion for Reargument, Petitioner appears to contend that the Court should not

have dismissed his Petition as second or successive because he has no other adequate remedy at
law, and the Court failed to consider his new evidence supporting his Ex Post Facto argument.
This argument is unavailing. As explicitly stated in 28 U.S.C. § 2244(b)(3)(A), "[b]efore a
second or successive application permitted by this section [28 U.S.C. § 2244(b)] is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). The Court
dismissed the Petition for being an unauthorized second or successive habeas request because
Petitioner filed it without obtaining authorization from the Third Circuit Court of Appeals.
Petitioner still has not obtained such authorization. Moreover, to the extent the instant Motion
merely re-asserts the same arguments Petitioner presented in his Petition, he has not presented
any intervening change in law, the availability of previously unavailable evidence, or a "clear
error of law" of the sort that would compd reargument. For all of these reasons, the Court

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concludes that the instant Motion for Reargument fails to warrant reconsideration of the Court's
prior dismissal of Petitioner's Petition.

III.

CONCLUSION
Based on the foregoing, the court will deny Petitioner's Motion for Reargument. The

Court will not issue a certificate of appealability, because Petitioner 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.

DAIBD: July ~2018

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