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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARTHUR BOMAR : CIVIL ACTION

Petitioner :

:

:

v. :

:

JOHN E. WETZEL, et al, : NO. 04-1730

RESPONSE TO PETITIONER’S MOTION FOR RELIEF

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(e)

This Court denied petitioner’s application for a writ of habeas corpus on March 

31, 2023. Bomar filed a motion seeking relief from that decision pursuant to Fed. R.

Civ. P. 59(e) on April 28, 2023. The Commonwealth now responds. Because Bomar’s 

motion sets forth absolutely no legitimate basis for altering or amending the 

judgment, the motion should be denied. 

Fed. R. Civ. P. 59 provides as follows:

(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a 

new trial on all or some of the issues—and to any party—as 

follows:

(A) after a jury trial, for any reason for which a new trial 

has heretofore been granted in an action at law in federal 

court; or

(B) after a nonjury trial, for any reason for which a 

rehearing has heretofore been granted in a suit in equity 

in federal court.

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(2) Further Action After a Nonjury Trial. After a nonjury trial, 

the court may, on motion for a new trial, open the judgment if one 

has been entered, take additional testimony, amend findings of 

fact and conclusions of law or make new ones, and direct the entry 

of a new judgment.

(b) Time to File a Motion for a New Trial. A motion for a new 

trial must be filed no later than 28 days after the entry of judgment.

(c) Time to Serve Affidavits. When a motion for a new trial is 

based on affidavits, they must be filed with the motion. The opposing 

party has 14 days after being served to file opposing affidavits. The court 

may permit reply affidavits.

(d) New Trial on the Court’s Initiative or for Reasons Not 

in the Motion. No later than 28 days after the entry of judgment, the 

court, on its own, may order a new trial for any reason that would justify 

granting one on a party's motion. After giving the parties notice and an 

opportunity to be heard, the court may grant a timely motion for a new 

trial for a reason not stated in the motion. In either event, the court 

must specify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. A motion to alter or 

amend a judgment must be filed no later than 28 days after the entry 

of the judgment.

Fed. R. Civ. P. 59(e). 

Bomar’s motion must be denied. “The purpose of a motion for reconsideration is 

‘to correct manifest errors of law or fact or to present newly discovered evidence.’” 

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (quoting Max's Seafood Cafe 

ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). A party seeking 

reconsideration must demonstrate “(1) an intervening change in the controlling law; 

(2) the availability of new evidence that was not available when the court granted the 

motion for summary judgment; or (3) the need to correct a clear error of law or fact or 

to prevent manifest injustice.” Max's Seafood Cafe, 176 F.3d at 677. Motions for 

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reconsideration are to be granted “sparingly” and may not be used to relitigate issues 

or to assert new arguments that should have been raised earlier. PBI Performance 

Prods., Inc. v. NorFab Corp., 514 F.Supp.2d 732, 744 (E.D.Pa. 2007) (Bartle, J.)

(quotation omitted); accord United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010).

Thus, a proper motion seeking reconsideration under Rule 59(e), as Bomar’s

motion purports to do, “addresses only factual and legal matters that the Court may 

have overlooked,” Pirela v. Horn, No. 90-CV-5013, 2014 WL 1327596, at *2 (E.D.Pa. 

Apr. 2, 2014) (citation and internal quotation marks omitted), “as it is improper ‘to 

ask the Court to rethink what [it] had already thought through—rightly or wrongly.’” 

Robinson v. Wenerowicz, No. 11-CV-4032, 2013 WL 5942206, at *1 (E.D.Pa. Nov. 5, 

2013) (citation omitted); see Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 

1231 (3d Cir. 1995) (providing that a court will not reconsider arguments that appear 

to be an improper attempt to procure “a second bite of the apple”); see also Soto v. 

United States, No. 09-CV-0915, 2011 WL 4929423, at *1 (D.Del. Oct. 17, 2011) 

(dissatisfaction with court’s decision not a legitimate basis to alter or amend 

judgment under Rule 59(e) or for relief from judgment under Rule 60(b)).

Bomar’s motion simply “ask[s] the Court to rethink what [it] had already thought 

through— rightly or wrongly.’” Robinson, 2013 WL 5942206, at *1. See Bomar v. 

Wetzel, No. 04-CV-1730, 2023 WL 2761303 at 55 (E.D.Pa. March 31, 2023) (“”This 

demonstrates not just a possibility for, but a present and actual disagreement among 

fair-minded jurists – which in turn renders it extremely difficult for Bomar to 

demonstrate an unreasonable application of this confused area of law”); Mot. at 4

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(“this Court focused on attempting to show that there is no clearly established 

Supreme Court precedent”). The argument that a recent Sixth Circuit1 case somehow 

renders this Court’s determination that there is no clearly established federal law as 

flawed is simply an expression of disagreement with this Court’s ruling, rather than 

a serious argument that the judgment rests on factual or legal matters that the Court 

overlooked. Indeed, this Court devoted several pages of its opinion to the very 

argument Bomar now posits: that Remmer constitutes clearly established federal law. 

See Bomar, at 52-56.

There is no suggestion of new evidence, much less new evidence that was 

previously unavailable, or of an intervening change in controlling law. Bomar’s 

dissatisfaction with the Court’s decision does not present a legitimate basis to alter 

or amend this Court’s judgment or decision not to grant a certificate of appealability.

Bomar’s motion to alter or amend the judgment under Fed. R. Civ. P. 59 sets forth

no legitimate basis for disturbing the judgment. The motion should be denied. There 

is no basis for a certificate ofappealability.

1 Bomar titles the Sixth Circuit Cunningham case as “precedent.” Although it may be 

precedential in that circuit, it certainly is not precedential in this Court nor does it 

constitute “clearly established law” for AEDPA purposes. Further, this Court 

examines the propriety of the state court’s review of his claim based on the applicable 

law at the time of the state court’s review. Certainly, the Pennsylvania courts could 

not have been expected to anticipate an uncontrolling Sixth Circuit decision 

suggesting Remmer may be controlling precedent several years before the 

Cunningham decision was rendered. 

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Respectfully submitted, 

Catherine B. Kiefer

CATHERINE B. KIEFER

Deputy District Attorney 

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