[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 9, 2009
No. 07-15930 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00066-CV-RV-EMT
EDWARD J. ZAKRZEWSKI, II,
Petitioner-Appellant,
versus
WALTER A. MCNEIL, Secretary Florida
Department of Corrections,
BILL MCCOLLUM, Attorney General of
Florida,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 9, 2009)
Before DUBINA, Chief Judge, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
This appeal is from the denial of Petitioner’s Fed. R. Civ. P. 60(b) motion
for relief from judgment.1 The motion was seeking relief from the denial of
Petitioner’s action for post-conviction relief under 28 U.S.C. § 2254. Briefly
stated, the issue is whether the lawyer who represented Petitioner in the section
2254 proceeding was authorized to represent Petitioner at all. Petitioner has
contended that the lawyer was totally unauthorized because the lawyer’s ostensible
authority had been gained by fraud on Petitioner and later, by fraud on the district
court.
The district court found that Petitioner was not defrauded by the lawyer: the
lawyer made no material misrepresentations and Petitioner did not rely on the
lawyer’s representations to Petitioner’s detriment. In addition, apart from the
authority Petitioner vested in the lawyer, the Court independently vested the lawyer
with the needed authority to represent Petitioner when the Court appointed the
lawyer to represent Petitioner. The district court has found that no
misrepresentation made by the lawyer to the district court was material to that
court when it made the pertinent appointment and that the district court did not rely
on misrepresentations when the appointment was made.
1
For further background, see Zakrzewski v. McDonough, 490 F.3d 1264 (11th Cir. 2007).
2
For the reasons set out here and in the district court’s order, we conclude that
the district court did not abuse its discretion in denying Rule 60(b) relief.2
AFFIRMED.
2
Petitioner contends that the district court abused its discretion by finding facts without
holding an evidentiary hearing. We doubt an abuse occurred, but we decline to examine the
arguments because they are beyond the scope of the COA. See Tompkins v. Moore, 193 F.3d
1327, 1332 (11th Cir. 1999).
3