January 19, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2245
MICHAEL KEVIN DUPONT,
Petitioner, Appellant,
v.
LARRY E. DUBOISE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Michael Kevin Dupont on brief pro se.
Per Curiam. Michael DuPont is appealing the
October 27, 1994, and November 23, 1994, orders of the
district court, which basically denied his request that the
court file an incomplete habeas form on his behalf as a new
habeas action. We affirm for the following reasons.
First, DuPont submitted his motions under the
docket number of a closed habeas case. The district court
correctly concluded that DuPont should file a new habeas
action.
Second, the habeas petition submitted by DuPont did
not state what his grounds for relief were or provide a
statement of supporting facts in summary form. Rather, it
attempted to incorporate by reference his original habeas
petition and his "traverse" from the closed case. Under
those circumstances, the district court could reject the
petition as insufficient under Rule 2(c) and could decline to
order the clerk to open a new habeas action on DuPont's
behalf. See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.
1990) (stating that a habeas petitioner must state facts
showing he is entitled to habeas relief sufficient to "enable
the court to determine, from the face of the petition alone,
whether the petition merits further habeas corpus review,"
the court affirmed dismissal of a habeas petition which did
not describe the facts supporting the asserted grounds for
relief, but simply referred the court to appellate briefs,
transcripts, the record, and other such materials).
Third, although DuPont claims that state prison
officials are withholding his original habeas record from
him, he acknowledges that he has received a copy of his
original habeas petition from the clerk of the district
court. His original petition sufficiently describes his
grounds for habeas relief and facts in support thereof to
permit him to file a new habeas petition. From his
submissions here and below, DuPont appears to have ample
access to documents required to support his claim that he has
exhausted his state remedies since filing his original habeas
action. The district court was not required to send him the
traverse from his original habeas action.
Fourth, the October 11 order of this court did not
direct the district court to file a new habeas action on
DuPont's behalf. Nor did it direct DuPont to seek an order
compelling prison officials to return his habeas file to him
by applying for such an order in a closed case. At the
present time, DuPont has the materials he needs to file a new
habeas action. If he does so, and if it becomes necessary
for DuPont to obtain his original habeas record in order to
pursue his new habeas action, then he may seek injunctive
relief in the new action. Otherwise, he may file a new
action for injunctive relief in the district court for the
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sole purpose of obtaining the allegedly withheld habeas
record.1
Finally, in view of the above, we deny DuPont's
request that counsel be appointed to represent him.
Affirmed.
1. We infer from DuPont's arguments on appeal that he may
have sought a motion to compel prison officials to return his
habeas record to him in a civil rights action he has brought
against prison officials in DuPont v. Dubois, D. Mass. Dkt.
No. 92-12420. If so, his motion will be acted on in due
course.
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