USCA1 Opinion
December 9, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1403
FRANK PORTER, JR.
Plaintiff, Appellant,
v.
LT. PELINO, ET. AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Frank Porter, Jr. on brief pro se.
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A. John Pappalardo, United States Attorney, and Victor A.
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Wild, Assistant United States Attorney, on brief for appellee.
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Per Curiam. The issue before us is whether the district
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court abused its discretion in denying appellant's motion for
relief from judgment under Fed. R. Civ. P. 60(b). Appellant
sought through this motion to obtain reconsideration of the
dismissal of his habeas corpus petition. We affirm the district
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court's decision.
Appellant was convicted by a jury on March 15, 1989 of
robbing five banks. After considering and rejecting several
post-trial motions, the district court sentenced appellant to a
264 month prison term. An appeal was taken to this court. We
affirmed appellant's conviction and sentence. United States v.
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Porter, 924 F.2d 395 (1st Cir. 1991).
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While he was awaiting trial, appellant filed a petition
for habeas corpus challenging the conditions of his pretrial
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confinement in a state facility (where he was awaiting
disposition of state charges), and alleging various
constitutional errors in the investigation, prosecution, and
defense of his case. The petition was originally assigned a
separate case number and routed to another judge. It was
reassigned to the trial judge at the conclusion of petitioner's
trial. The trial judge denied the petition on February 21,
1991, shortly after this court affirmed appellant's conviction,
because "all issues of any significance" had been reviewed on
direct appeal, or "rendered moot" by petitioner's conviction and
incarceration in a federal facility.
Almost a full year later, on February 18, 1992, appellant
filed the instant motion, urging reconsideration of the denial of
his habeas petition for three reasons. First, he said that the
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district court had inadvertently failed to allow him to amend the
petition. Second, he argued that he was entitled to
reconsideration because of his counsel's "excusable neglect": a
delay in transmitting to the court appellant's request to amend
the habeas petition. And third, he argued that the district
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court should reconsider because it had mistakenly treated the
petition as one challenging a state court judgment under 28
U.S.C. 2254.
A motion for reconsideration under Fed. R. Civ. P. 60(b),
is committed to the district court's discretion and may be
granted only under exceptional circumstances. We review a denial
of postjudgment relief under this rule only for "abuse of
discretion." See United States v. Parcel of Land & Residence at
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18 Oakwood St., 958 F.2d 1, 5 (1st Cir. 1992) (citing cases);
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United States v. Ayer, 857 F.2d 881, 886 (1st Cir. 1988). We
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find no abuse here.
First, the record does not support appellant's contention
that the district court failed to consider his motion to amend
his habeas petition. As originally drafted, appellant's motion
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was contained in a letter dated December 18, 1989, addressed to
appellant's attorney and forwarded by the attorney to the court
on January 18, 1990. Appellant had also sent an almost identical
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letter directly to the court, dated December 22, 1989. The
letters recite what seem to be clarifications or explanations of
the grounds raised in appellant's original habeas petition.
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These letters were before the trial judge, and their contents
were presumably considered by him, when he denied appellant's
habeas petition in February, 1991.
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Appellant now contends that the letters actually sought
the court's permission for the filing of yet another, separately
labelled, "amendment" to the habeas corpus petition. Appellant
first filed such a document on February 18, 1992, along with the
instant Rule 60(b) motion. Even if we were to read appellant's
original letter motion as seeking permission to file this
separate document, however, it is clear that the district court
did not abuse its discretion in denying appellant's motion for
reconsideration under Rule 60(b). As we read the separate
"amendment" appellant has now filed, it, too, does no more than
restate or attempt to clarify, the arguments asserted in the
original habeas petition. Although appellant argues that "new
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evidence" is presented in the amendment, we find none.
Appellant's second argument, that he is entitled to
reconsideration of his habeas petition because of his attorney's
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"inadvertence" is frivolous. The attorney's one month delay in
transmitting appellant's letter motion to the court did not
affect the outcome of appellant's habeas petition, which was
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denied on the merits, well after the letter motion was received.
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Finally, appellant argues that the district court
incorrectly treated his habeas petition as a motion for relief
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from a state court judgment under 28 U.S.C. 2254. He claims
that the district court should have treated some of the
petition's allegations, presumably those dealing with the
conditions of his pretrial detention, as having been brought
under 28 U.S.C. 2241, others as asserting a civil rights
action, presumably under 42 U.S.C. 1983, and still others as a
petition for relief under 28 U.S.C. 2255.
When the district court ruled on the habeas petition,
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petitioner was already serving his sentence in federal prison.
He had not been subject to any of the challenged conditions of
his pre-trial confinement for more than a year. The district
court's dismissal of these grounds as moot was thus correct.
Moreover, no matter how liberally one reads petitioner's habeas
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petition, the only relief it demands is release from confinement.
The district court could not be expected to reinterpret this
petition as one asserting a civil rights claim for damages. Even
petitioner took more than two years to conceive of this gloss
upon his own petition.
Finally, the district court did not misconstrue its own
statutory authority in deciding the remainder of appellant's
arguments. These arguments were properly construed as a
challenge to appellant's federal conviction. They were handled
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appropriately, and correctly dismissed, in light of the policy
and procedures under 28 U.S.C. 2255.
Affirmed.
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So ordered.
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