UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10099
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC NELSON BERTRAM,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(2:86-CR-36)
_________________________________________________________________
(July 10, 1995)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Eric Nelson Bertram, pro se, appeals from the denial of his
Fed. R. Civ. P. 60(b) motion for relief from a judgment denying
post-conviction relief under 28 U.S.C. § 2255. We AFFIRM.
I.
Bertram was convicted in 1987, for possession of a destructive
1
Local Rule 47.5.1 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
device which was not registered to him, making a firearm, and
committing two felony offenses while on release from custody.2 [2
R 144] He was sentenced, inter alia, to concurrent terms of five
and ten years, respectively, for the possession and manufacturing
convictions, and a consecutive ten-year term for the commission of
felonies while on release from custody. [2 R 147] Our court
affirmed the convictions on direct appeal.3 United States v.
Bertram, No. 87-1236 (5th Cir. Sept. 15, 1987) (unpublished). [2
R, unnumbered pages in front of volume]
In April 1988, Bertram moved under Fed. R. Crim. P. 35 to
2
While on parole for a conviction for being a felon in
possession of a firearm, and while free on bond on a multi-count
indictment charging credit card fraud, Bertram was convicted for
making a pipe bomb and using it to bomb the car of a woman who had
refused to date him. [1 R 21]
3
On direct appeal, Bertram raised issues regarding the denial
of a severance, delay in giving a limiting instruction, exclusion
of testimony, improper impeachment, denial of a continuance,
disparagement at the sentencing hearing, and lack of notice prior
to the imposition of an order of restitution. [2 R, unnumbered
pages at front of volume]
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reduce or correct his sentence, asserting that the district court
failed to give notice that it was considering the imposition of
restitution. [3 R 1] The district court denied the motion, [3 R
2] and our court affirmed. United States v. Bertram, No. 88-1310
(5th Cir. Nov. 10, 1988) (unpublished). [3 R, unnumbered pages in
front of volume]
Bertram filed another motion to correct his sentence in
December 1988, challenging the constitutionality of the imposition
of $50 special assessments. [4 R 1] The district court denied the
motion, [4 R 2] and our court affirmed. United States v. Bertram,
No. 89-1018 (5th Cir. Nov. 2, 1989) (unpublished). [4 R,
unnumbered pages in front of volume]
In March 1990, Bertram filed a motion to vacate his sentence
under 28 U.S.C. § 2255, asserting, inter alia, that he was denied
the right to testify at trial. [5 R 1-12] The district court
denied relief. [5 R 13-14] Our court vacated and remanded for a
statement of reasons supporting the denial of relief. United
States v. Bertram, No. 90-1355 (5th Cir. Oct. 16, 1990)
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(unpublished). On remand, the district court, without conducting
an evidentiary hearing, entered a detailed order denying Bertram's
§ 2255 motion. [6 R 1-18] With respect to his claim of
deprivation of the right to testify, the district court found that
Bertram did not offer to testify and held that he had waived any
right to complain that he was denied that right. [6 R 12] Our
court affirmed in March 1993, holding, inter alia, that the
district court's analysis adequately disposed of Bertram's claim of
deprivation of the right to testify. United States v. Bertram, No.
92-1428 (5th Cir. Mar. 1, 1993 (unpublished). [7 R, unnumbered
pages at front of volume, pp. 5-6]
In June 1994, Bertram moved for reconsideration or relief from
judgment pursuant to Fed. R. Civ. P. 60(b)(6), urging the district
court to revisit his claim of deprivation of the right to testify.
[1 R 1-8] The district court held that the issue was decided
adversely to Bertram in the dismissal of his § 2255 motion, and
that he could not relitigate it. [1 R 20-24]
II.
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"[D]enial of a 60(b)(6) motion is reviewed only for abuse of
discretion". Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38
F.3d 1404, 1408 (5th Cir. 1994). "Therefore, `[i]t is not enough
that the granting of relief might have been permissible, or even
warranted--denial must have been so unwarranted as to constitute an
abuse of discretion.'" Id. (quoting Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 402 (5th Cir. 1981)).
Bertram contends that new law has established that a
defendant's silence at trial is insufficient to support a
conclusion that the defendant voluntarily and intelligently waived
his right to testify. In support, he relies on United States v.
Teague, 953 F.2d 1525 (11th Cir.) (en banc) (holding "that a
criminal defendant has a fundamental constitutional right to
testify on his behalf, that this right is personal to the
defendant, and that the right cannot be waived by defense
counsel"), cert. denied, ___ U.S. ___, 113 S. Ct. 127 (1992).
Bertram's contention borders on being frivolous. Even
assuming that Teague supports Bertram's position that the record
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must affirmatively reflect a defendant's waiver of the right to
testify -- which it does not -- it was decided in February 1992,
more than two months before Bertram appealed the judgment denying
his § 2255 motion in May 1992. [7 R 6] There is no reason why
Bertram could not have brought Teague to our court's attention
prior to its affirmance of the denial of § 2255 relief in March
1993. It is well-settled that "a Rule 60 motion is not a
substitute for an appeal from the underlying judgment". Travelers,
38 F.3d at 1408.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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