November 29, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1172
PETER N. GEORGACARAKOS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Peter N. Georgacarakos on brief pro se.
Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
Assistant United States Attorney, on Memorandum for Summary
Disposition, for appellee.
Per Curiam. Appellant Peter N. Georgacarakos
appeals from the denial of his motion for relief from
judgment filed under Fed. R. Civ. P. 60(b).
"[T]he treatment of a Rule 60(b) motion is
committed to the discretion of the district court and may be
reversed only upon a finding of an abuse of that discretion."
Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir. 1988).
We do not review the merits of the underlying judgment. Id.
Because appellant claims that the government
engaged in fraud in opposing his motion to vacate his
sentence, see 28 U.S.C. 2255, we treat the motion for
relief from judgment as having been filed under Rule
60(b)(3). This Rule allows such relief for "fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party."
To prevail under Rule 60(b)(3), appellant must show that the
alleged fraud prevented him from "fully and fairly"
presenting his claims in support of the 2255 motion. See
In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987).
Fraud can only have this effect when a party had no
knowledge of the alleged misrepresentations at the time the
supposed fraud took place. Ojeda-Toro, 853 F.2d at 29. In
support of his claim that the government committed fraud by
submitting the affidavit of appellant's trial counsel,
appellant refers to the transcript of his trial. "Even where
misrepresentations are made during a litigation, it is not an
abuse of discretion to deny relief to the losing party under
Rule 60(b)(3), where the party had access to accurate
information." 7 J. Moore & J. Lucas, Moore's Federal
Practice 60.24[5], at 90 (2d ed. Supp. 1994-95) (footnote
omitted). Because appellant had access to the trial
transcript during the course of the 2255 proceedings, he
was not prevented from fully presenting his case. See In re
M/V Peacock, 809 F.2d at 1405.
We therefore affirm the judgment of the district
court. See 1st Cir. R. 27.1.
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