Frank v. Clark et al

Filing 12

MEMORANDUM re MOTION for Reconsideration 11 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 3/24/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD FRANK,
Petitioner
vs.
MICHAEL CLARK, et al.,
Respondents

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CIVIL NO. 1:16-CV-02136

(Judge Rambo)

MEMORANDUM
Background
On October 24, 2016, Petitioner, Ronald Frank,
an inmate at the State Correctional Institution at
Albion, Albion, Pennsylvania, filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1.)

Frank paid the $5.00 filing fee.

On December

13, 2016, the petition was given preliminary
consideration pursuant to Rule 4 of the Rules Governing
§ 2254 Cases, 28 U.S.C. foll. § 2254 and dismissed as
untimely filed.

On December 28, 2016, Frank filed a

motion for reconsideration. (Doc. 11.)

For the reasons

set forth below the motion will be denied.
Discussion
A motion for reconsideration is a device of
limited utility.

It may be used only to seek

remediation for manifest errors of law or fact or to
present newly discovered evidence which, if discovered
previously, might have affected the court's decision.
Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985),
cert. denied, 476 U.S. 1171 (1986); Massachusetts Mutual
Life Insurance Co. v. Maitland, Civil No. 87-0827 (M.D.
Pa. March 1, 1989) (Rambo, J.).

Accordingly, a party

seeking reconsideration must demonstrate at least one of
the following grounds prior to the court altering, or
amending, a standing judgment: (1) an intervening change
in the controlling law; (2) the availability of new
evidence that was not available when the court granted
the motion; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice.

Max's

Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir.
1999)(citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

A motion for

reconsideration is appropriate in instances where the
court has “...misunderstood a party, or has made a
decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of

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reasoning, but of apprehension.”

See Rohrbach v. AT & T

Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa.
1995), vacated in part on other grounds on
reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996),
quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).

It may not be

used as a means to reargue unsuccessful theories, or
argue new facts or issues that were not presented to the
court in the context of the matter previously decided.
Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa.
2001).

“Because federal courts have a strong interest

in the finality of judgments, motions for
reconsideration should be granted sparingly.”
Continental Casualty Co. v. Diversified Indus. Inc., 884
F.Supp. 937, 943 (E.D. Pa. 1995).
The court’s reasons for finding that the
petition was untimely filed were set forth in a 5-page
memorandum and the court incorporates herein by
reference those reasons. (Doc. 9.)
As noted in the memorandum Frank was sentence on
August 3, 2010.

Frank did take a direct appeal which

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was decided on March 25, 2011, and the time for seeking
further review expired on April 25, 2011.

The period of

time which elapsed from the deadline of April 25, 2011,
for Frank to seek direct review in the Supreme Court
until Frank filed his PCRA petition on April 17, 2014,
is well in excess of 1 year.

Frank has presented no

evidence which would justify the delay of almost two
years beyond the one-year statute of limitations before
filing a habeas petition in this court. He does not give
any indication when and how he inquired regarding the
disposition of his direct appeal or an explanation for
his failure to inquire of his attorney regarding that
appeal.

Other than a conclusory allegation that he was

unaware that his direct appeal became final on April 25,
2011, he has offered nothing which would justify the
equitable tolling of the statute of limitations for
almost two years. He clearly has not demonstrated that
he pursued his rights diligently or that some
extraordinary circumstance stood in his way and
prevented him from timely filing a petition with this

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court.1

Consequently, Frank’s habeas petition filed on

October 24, 2016, was untimely filed.
Frank has failed to set forth any reasons which
would justify the court reconsidering its finding that
Frank’s petition was untimely filed.

Frank’s motion for

reconsideration fails to demonstrate that there has been
an intervening change in the law, that there is newly
discovered evidence, or that there has been a clear
error of law or manifest injustice committed.

Thus, the

Court finds that its memorandum and order of December
13, 2016,

is not defective because of manifest errors

of law or fact and Frank has not presented anything new,
which if previously presented, might have affected our

The one-year filing requirement is a statute of
limitations, not a jurisdictional rule, and thus a
habeas petition should not be dismissed as untimely
filed if there exists an equitable basis for tolling
the limitations period. Merritt v. Blaine, 326 F.3d
157, 161 (3d Cir. 2003). In Merritt, the Court of
Appeals set forth two general requirements for
equitable tolling: “(1) that the petitioner has in some
extraordinary way been prevented from asserting his or
her rights; and (2) that the petitioner has shown that
he or she exercised reasonable diligence in
investigating and bringing the claim.” Id. (internal
1.

citations and quotations omitted).
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decision. Consequently, the motions for reconsideration
will be denied.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: March 24, 2017

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