Free Order on Motion for Reargument - District Court of Delaware - Delaware

Case 1:07-cv-00243-SLR Document 27 Filed 08/13/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENNETH F. REEDER, )
Petitioner, ;
v. g Civ. No. 07-243-SLR
PERRY PHELPS, Warden, ;
and the ATTORNEY GENERAL )
OF THE STATE OF )
DELAWARE, )
Respondents. )
O R D E R
At Wilmington this ""`day of August, 2008;
IT IS ORDERED that:
Petitioner Kenneth F. Reeder’s "motion for reargument and/or reconsideration"
with respect to the court’s decision denying petitioner’s § 2254 application is DENIED.
(D.I. 26) The purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3d Cir. 1985). Accordingly, a court may grant a motion for reconsideration if
the moving party shows 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. Max’s Seafood Café v. Ouinteros, 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).
Here, the court denied petitioner’s § 2254 application as time—barred.
Petitioner’s instant motion argues that the court erred in its statutory tolling calculation

Case 1:07-cv-00243-SLR Document 27 Filed 08/13/2008 Page 2 of 2
because he timely and properly tiled his Rule 61 post-conviction motion in the Delaware
Superior Court. However, as previously explained by the court, even though petitioner
properly and timely filed his Rule 61 motion under state procedural rules, it was
petitioner’s failure to file Rule 61 motion prior to the expiration of the federal limitations
period that rendered the statutory tolling doctrine inapplicable to his case.
Petitioner also appears to re-assert his argument that his alleged "actual
innocence" should act to toll AEDPA’s limitations period. The court already considered,
and rejected, this argument in its Memorandum Opinion. E (D.I. 22, at pp. 6-7) To
the extent petitioner suggests that the court committed a clear error of law, the court is
unpersuaded. Accordingly, the court concludes that petitioner’s motion does not
warrant reconsideration of its decision.

2