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

Case 1:05-cv—00817-Gl\/IS Document 12 Filed 09/28/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAl\/IMEYIN A. JOHNSON, )
Petitioner, g
v. § Civ. A. No. 05-817-GMS
THOMAS CARROLL, g
Warden, )
)
Respondent. )
O R D E R
7 `1
At Wilmington this day of September, 2006;
IT IS ORDERED that:
Pro se petitioner Dammeyin A. J ohnson’s motion for reconsideration of the com·t’s order
denying his § 2254 petition as second or successive is DENIED. (D.I. 8.)
Johnson contends that the court mistakenly dismissed his habeas petition as successive
because his first habeas petition challenged the Delaware Supreme Court’s decision in his direct
appeal, whereas the instant habeas petition challenges the state cotu·ts’ denial of a Rule 35(a)
motion for correction of an illegal sentence. Given the nature of his argument, the court
construes J ohnson’s motion for reconsideration to be asserted pursuant to Federal Rule of Civil
Procedure 60(b)(6). See Gonzalez v. Crosby, 125 S.Ct. 2641, 2645 (2005)("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."). However, a court
may grant a Rule 60(b) motion only in extraordinary circumstances. Moolemzar v. Gov ’t of

Case 1 :05-cv-00817-GIVIS Document 12 Filed 09/28/2006 Page 2 of 2
Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).
In Johns0n’s case, the fact that his second petition challenges the Delaware courts’ denial
of a Rule 35(a) motion for correction of an illegal sentence does not change the fact that the
petition is really challenging the same 1999 conviction challenged in Johnson’s first habeas
petition. Therefore, J ohnson’s motion does not warrant reconsideration of the court’s order.
UNIi QD STXi ES DISTRICT JUDGR
F I L E D
SEP 2 8 2000
u.s. msrmcr counr
olsrmcr OF DELAWARE
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