White v. Fair

United States Court of Appeals
For the First Circuit

Nos. 01-1116
01-1834

ROY W. WHITE,

Petitioner, Appellant,

v.

MICHAEL V. FAIR,

Respondent, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and O'Toole, Jr.* District Judge.

John M. Thompson, with whom Thompson & Thompson, P.C., were on
brief, for appellant.
James J. Arguin, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellee.

March 28, 2002

_____________________
*Of the District of Massachusetts, sitting by designation.
 STAHL, Senior Circuit Judge. On April 29, 1985,

petitioner-appellant Roy W. White ("White") sought a writ of habeas

corpus in federal district court for relief from his conviction in

Massachusetts state court for second degree murder. He now appeals

the March 26, 1987 dismissal with prejudice of his habeas petition,

as well as a September 27, 1999 order denying a motion for relief

from the 1987 dismissal. In addition, he appeals two orders by the

district court, issued on September 28, 2000 and May 30, 2001, each

denying a motion for reconsideration. We hold that we do not have

jurisdiction to consider the 1987 dismissal of White's habeas
petition, and we affirm on the merits the 1999 order denying relief

from the 1987 dismissal as well as the orders denying White's two
motions for reconsideration.

I.
A. The Dismissal of White's Habeas Corpus Petition

Following a conviction for second degree murder in

Massachusetts state court in 1971, White was sentenced to life
imprisonment. His conviction was affirmed on direct appeal.
Commonwealth v. White, 296 N.E. 2d 822 (Mass. 1973). After a

failed attempt to obtain a new trial in state court, see

Commonwealth v. White, 467 N.E. 2d 79 (Mass. 1984), White filed a
writ of habeas corpus in the district court on April 29, 1985,

arguing that his murder conviction was obtained in violation of his
constitutionally guaranteed right to due process of law because the

jury had been given instructions in violation of Sandstrom v.

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Montana, 442 U.S. 510 (1979). On March 19, 1986, while his habeas

petition was pending, White failed to return to prison from a then-

authorized furlough program and became a fugitive. On February 27,
1987, a magistrate judge issued a report and recommendation that

White's petition be dismissed with prejudice. White v. Fair, No.

85-1670-WF, R. Doc. 9 (D. Mass. Feb. 27, 1987) (Collings, Mag. J.).
The magistrate judge based his determination on the fact that, as

a fugitive from justice, the petitioner was not entitled to invoke

the powers of the court. Id. at 1; see Molinaro v. New Jersey, 396

U.S. 365 (1970).

On March 26, 1987, the district court adopted the

magistrate judge's recommendation and dismissed the petition. The

district court did so by a handwritten note in the margin of the
magistrate judge's report, stating "[f]or the compelling reasons

stated in this report Plaintiff's Petition is hereby DISMISSED."

White v. Fair, No. 85-1670-WF, R. Doc. 9 (D. Mass. March 26, 1987)

(Note by Wolf, J.) (hereinafter "1987 Dismissal"). The order was

not set out on a separate document as required by Rule 58 of the
Federal Rules of Civil Procedure.1.

B. White's Post-Dismissal Correspondence with the Court

Subsequently, White was apprehended and returned to

Massachusetts in July 1987. The parties disagree both as to

whether White understood at the time of his re-incarceration that

his habeas petition had been dismissed with prejudice and as to

1
See Fed. R. Civ. P. 58 ("Every judgment shall be set forth on
a separate document.").

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whether he took any action to try to revive the dismissed petition.

White claims that he believed that his habeas claim had been put on

hold pending exhaustion of state remedies and that, to that end, he
filed a petition for rehearing, as well as later apparently a

motion for a new trial, in state court. White also contends -- but

offered evidence to this effect for the first time only in a motion
for reconsideration -- that he prepared and mailed a motion to

vacate the order of dismissal of his habeas petition in August

1987.

In any case, the parties agree that White corresponded

with the district court in June and August of 1990. On June 18,

1990, White sent a letter to district court judge Andrew Caffrey --

who was not the judge who had dismissed his habeas petition --
requesting him to instruct the clerk's office to send him his file,

so that he could "submit appropriate motions to this court for

review and disposition." In the same letter, White stated that he
had "serious reason to believe that fundamental constitutional

rights are at stake in this case and that it should have not been

dismissed with prejudice in the manner that it was." On June 26,

1990, White filed a motion with the district court, seeking to

waive copying costs on certain documents. On August 6, 1990, White

wrote again to Judge Caffrey, asking for a ruling on his motion to

waive copying costs. He stated that "[t]he requested documents are

integral to new motions to this court that would seek a thorough

reconsideration of this matter." The transferred record does not

indicate what action, if any, was taken on White's requests. In

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any event, White did not follow up his 1990 correspondence with the

court with any motions or appeals.

C. White's Motion for Relief from the 1987 Dismissal

It was not until April 23, 1997 that White filed a motion

for relief from the 1987 dismissal pursuant to Rules 59 and 60 of

the Federal Rules of Civil Procedure. See Rule 11, Rules Governing
Section 2254 Cases in the United States District Courts (applying

Federal Rules of Civil Procedure to habeas corpus actions). While

recognizing that his motion was filed ten years after the last

activity on his habeas action, White argued that the district court

nevertheless had jurisdiction to review the 1987 Dismissal of his

habeas petition because no final judgment had been entered and the

time for appeal had thereby not begun to run. White based this
argument on the fact that the district court order dismissing his

case had not been entered on a separate document.

On September 27, 1999, the district court denied White's
motion for relief from the order of dismissal. White v. Fair, No.

85-1670-WF, R. Doc. 24 (D. Mass. Sept. 27, 1999) (Wolf, J.)

(hereinafter "1999 Order"). The court assumed, without finding,

that no separate document had been filed dismissing White's habeas

petition. Relying on Bankers Trust Co. v. Mallis, 435 U.S. 381,

384 (1978), and Wang Laboratories, Inc. v. Applied Computer

Sciences, Inc., 926 F.2d 92, 96 (1st Cir. 1991), the court

nevertheless determined that it lacked jurisdiction to hear White's

motion, because the absence of a separate document did not affect

the finality of the judgment and the parties had waived the

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separate document requirement where both had understood that final

judgment had been entered. The court further reasoned that, even

if it did have jurisdiction to reconsider its 1987 decision, it was
inappropriate to do so given that the dismissal was a permissible

and appropriate exercise of the court's discretion, Molinaro, 396

U.S. at 365-66, and that the public interest would not be served
when claims of unconstitutional conduct were reconsidered years

after the events in question.

D. White's Motions for Reconsideration

White did not file a notice of appeal challenging the

1999 Order, but instead filed a motion for reconsideration on

October 29, 1999 (hereinafter the "First Motion for

Reconsideration"). He argued in this motion that, contrary to what
the district court had found, he had not understood that the 1987

dismissal was final and therefore could not have waived the

separate document requirement. The district court denied the
motion. White v. Fair, No. 85-1670-WF, R. Doc. 28 (D. Mass, Sept.

28, 2000) (Wolf, J.) (hereinafter "2000 Order"). On October 11,

2000, White filed a motion to extend the time for filing a notice

of appeal of the 2000 Order to November 27, 2000, which was allowed

by the court. He then filed a timely notice of appeal on November

27, 2000.

On the same day, White also filed a motion for

reconsideration of the 2000 Order (hereinafter the "Second Motion

for Reconsideration"), claiming that evidence discovered since that

order showed that in July or August of 1987 White had filed a

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motion to vacate the 1987 dismissal, counteracting any inference of

waiver. On May 30, 2001, the district court denied White's Second

Motion for Reconsideration. White v. Fair, No. 85-1670, R. Doc. 46

(D. Mass., May 30, 2001) (Wolf, J.) (hereinafter "2001 Order").

White timely appealed on June 7, 2001. We consolidated this appeal

with White's appeal of the denial of his First Motion for
Reconsideration.

II.

On appeal, White asks us to review the district court's

determinations in the 1987 Dismissal, in the 1999 Order denying

relief from the 1987 Dismissal and in the two orders denying

White's motions for reconsideration. On February 7, 2001 we asked
White to show cause why we have jurisdiction to consider the 1987

Dismissal and the 1999 Order. We then determined on March 26, 2001

that the appeal could go forward because we had jurisdiction at
least as to the denials of the motions for reconsideration.

Reserved for this panel was the question of whether jurisdiction

exists to review the 1987 Dismissal and the 1999 Order.2 We take

2
Appellee argues that White cannot take an appeal from any of
the district court's underlying orders because no certificate of
appealability (COA) has issued in this case, as required by the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §
2253(c) (1996), and Rule 22(b) of the Federal Rules of Appellate
Procedure. See Slack v. McDaniel, 529 U.S. 473, 482 (2000) (where
petitioner sought appellate review after the AEDPA's effective
date, § 2253(c) governs his right to appeal). Although White
applied to the district court for a COA on January 2, 2001, the
district court has not ruled on that application. We nevertheless
disagree that the lack of a COA is fatal to White's appeal. Under
the AEDPA amendments, a habeas petitioner who fails to obtain a COA
from the district court may request a circuit judge to issue the

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up the relevant jurisdictional questions as we review each order.

We hold that we do not have jurisdiction to review the 1987

Dismissal, but find that White's actions were sufficient to create
jurisdiction as to the 1999 Order. We nevertheless affirm the 1999

COA. Fed. R. App. P. 22(b)(1). Furthermore, "[i]f no express
request for a certificate is filed, the notice of appeal
constitutes a request addressed to the judges of the court of
appeals." Fed. R. App. P. 22(b)(2). Accordingly, in Bui v.
Dipaolo, 170 F.3d 232 (1st Cir. 1999), we stated that "for cases in
which the district court does not grant a COA at all . . . the
court of appeals must deem a notice of appeal to represent a
request for a COA on all issues raised." 170 F.3d at 237. Although
the quoted language in Bui contemplated a situation where the
district court had denied the petitioner's request for a COA on all
issues, unlike the fact scenario we have here, where the district
court has not ruled on the request at all, we find that the same
principle should apply. See also Slack, 529 U.S. at 481-83
(treating a notice of appeal as a request for a COA where no
request for a COA was filed at the district court level). We
therefore treat White's notice of appeal as a request for a COA.
As to the determination of when a COA should issue, the
Supreme Court directs us as follows:
Where a district court has rejected the
constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward:
The petitioner must demonstrate that reasonable
jurists would find the district court's assessment
of the constitutional claims debatable or wrong. .
. . When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least,
that jurists of reason would find it debatable
whether the petition states a valid claim of the
denial of a constitutional right and that jurists
of reason would find it debatable whether the
district court was correct in its procedural
ruling.
Slack, 529 U.S. at 484. Although we ultimately determine that the
district court was correct in its procedural ruling, and although
we therefore do not reach the merits of White's underlying
constitutional claim, as our careful consideration of White's
claims indicates, we believe that jurists of reason would find
these issues debatable and that a COA should therefore issue.

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Order on its merits, as well as affirm the denials of White's

motions for reconsideration.

A. The 1987 Dismissal

Rule 4(a) of the Federal Rules of Appellate Procedure

provides that a notice of appeal in a civil case must be filed

"within 30 days after the judgment or order appealed from is
entered." A motion for relief under Rules 59 or 60 may toll the

time for appeal until the entry of the order disposing that motion,

but only if the motion is filed within 10 days after the final

judgment is entered. Fed. R. App. P. 4(a)(4)(A) (stating that the

time to file an appeal runs from the entry of the order disposing

a Rule 60 motion if the Rule 60 motion was filed no later than 10

days after the judgment was entered); Fed. R. Civ. P. 59 (b), (e)
(stating that a motion for a new trial or a motion to alter or

amend judgment must be filed within 10 days after entry of

judgment). On its face, White's appeal of the 1987 dismissal is
thus untimely. As we have stated, White instead relies on Rule

58's separate document requirement to argue that his appeal is

timely. Although the lack of a separate document does not affect

the finality of the judgment,3 the final judgment must issue on a

separate document before the time for appeal begins to run.

Previously, we have announced a clear rule that waiver of

the right to judgment entered on a separate document will be

3
See Wang Labs., 926 F.2d at 96 ("Because '[t]he sole purpose
of the separate-document requirement . . . was to clarify when the
time for appeal under 28 U.S.C. § 2107 begins to run,' the lack of
a separate document does not affect the finality of the judgment.")
(citing Bankers Trust, 435 U.S. at 385).

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inferred where a party fails to act within three months of the

court's final order in a case. Fiore v. Wash. County Cmty. Mental

Health Ctr., 960 F.2d 229, 236 (1st Cir. 1992) (en banc). In Fiore,
we held that the plain language of Rule 58, as well as Supreme

Court precedent in United States v. Indrelunas, 411 U.S. 216

(1973), and Bankers Trust, 435 U.S. 381, dictated a mechanical
application of the separate document requirement in all final

orders. 960 F.2d at 234. We nevertheless concluded that an

inference of waiver was also permitted where the parties failed to

take any action in the case for three months or more:

If we were to hold without qualification that
a judgment is not final until the court issues
a separate document, we would open up the
possibility that long dormant cases could be
revived years after the parties had considered
them to be over. We hasten to shut off that
prospect. . . . We believe it appropriate,
absent exceptional circumstances, to infer
waiver where a party fails to act within three
months of the court's last order in the case.
. . . A party wishing to pursue an appeal and
awaiting the separate document of judgment
from the trial court can, and should, within
that period file a motion for entry of
judgment. This approach will guard against
the loss of review for those actually desiring
a timely appeal while preventing resurrection
of litigation long treated as dead by the
parties.

960 F.2d at 235 (internal citation omitted). White's attempt to

seek appellate review of the 1987 Dismissal, coming fourteen years

after final action on his habeas petition, is precisely the type of

"resurrection of litigation long treated as dead by the parties"

that we sought to prevent with our holding in Fiore.

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 White nevertheless makes four arguments for why Fiore

should not govern this case. First, he argues that our decision in

Fiore post-dates the 1987 dismissal and therefore cannot be applied
retroactively to his delay in seeking an appeal of that order.

This argument is without merit. Even assuming that Fiore does not

apply to White's delay from 1987 to 1992, the year in which Fiore

was decided, White continued to let the case lie dormant another

five years through 1997, and only sought appellate review in 2000.

Second, White contends that Fiore should not govern

habeas cases, given the strong policy articulated by the Supreme

Court in favor of reaching the merits of habeas corpus petitions.

However, none of the cases cited by White to support this

proposition4 speak to the situation we have here, which involves an
apparent abandonment of the right to appeal a habeas petition

denial. Any preference for reaching the merits of a writ of habeas

corpus goes to the question of whether or not the district court
should have dismissed White's original petition with prejudice.

Our focus here, however, is not the dismissal itself but the delay

in appealing the dismissal. We see nothing in the precedent cited

by White to convince us that a long delay in appealing the denial

4
See Slack, 529 U.S. at 487-88 (proscribing dismissal, as a
second or successive petition under AEDPA, 28 U.S.C.§ 2244(b), of
a habeas petition filed after a previous petition has been
dismissed on exhaustion grounds); Stewart v. Martinez-Villareal,
523 U.S. 637 (1998) (finding that a timely-brought habeas claim is
not a second or successive petition when it was previously
dismissed only for lack of ripeness); Lonchar v. Thomas, 517 U.S.
314 (1996) (holding that court of appeals cannot dismiss first
habeas petition for special ad hoc equitable reasons, including a
mere delay, beyond the framework embodied in statutes, rules, and
precedent).

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of a habeas petition should be excused on the grounds that the

merits cannot otherwise be reached.

Third, White suggests that Fiore is inconsistent with the
policy and purposes of Rule 58 as articulated in the Supreme

Court's rulings. Although White is not explicit in pointing us to

the specific rulings he has in mind, we take him to be referring to
Indrelunas and Bankers Trust, both of which directed courts to

apply mechanically the Rule 58 separate document requirement.

Bankers Trust additionally found, as we acknowledged in Fiore, 960

F.2d at 235, that relaxing the technicality of the rule was

permissible in circumstances where a separate document was not

entered but appellant nonetheless filed a notice of appeal without

objection from the appellee. 435 U.S. at 386-88. Interpreting
Bankers Trust to permit relaxation of the separate document

requirement only in circumstances where it would effectuate the

right of appeal, several of our sister circuits have rejected the
Fiore approach as inconsistent with a mechanical application of

Rule 58. See Hammack v. Baroid Corp., 142 F.3d 266, 270 (5th Cir.

1998); United States v. Haynes, 158 F.3d 1327, 1330-31 (D.C. Cir.

1998); Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263, 270 (6th

Cir. 1998) (en banc) (explaining that, on the Rule 58 question, the

en banc court was convinced by panel's reasoning in vacated Rubin

v. Schottenstein, Zox & Dunn, 110 F.3d 1247, 1250-53 (6th Cir.
1997), which included a footnote rejecting the Fiore waiver rule).

Unlike our sister circuits, we do not take the position

that Indrelunas and Bankers Trust preclude all findings of waiver

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against the appealing party. We specifically stated so in Fiore:

"We see no conflict between this conclusion and Supreme Court

precedent suggesting that Rule 58's technical requirements should
be relaxed only to assist an appeal, not to foreclose one." 960

F.2d at 236 n.11. The separate document requirement was designed

to assist a party actively seeking an appeal by eliminating
confusion as to the definite date by which the party would have to

file the notice of appeal. See Bankers Trust, 435 U.S. at 384-85

(stating that "[t]he separate document requirement was thus

intended to avoid the inequities that were inherent when a party

appealed from a document or docket entry that appeared to be a

final judgment of the district court only to have the appellate

court announce later that an earlier document or entry had been the
judgment . . . .") Its purpose was not to enable a party to appeal

a decision years later, when that party had shown no inclination to

do so in a timely fashion. We thus decline, especially in the
context of a 14-year delay in appealing what was admittedly a final

judgment, to revisit our holding that "[w]hen a party allows a case

to become dormant for . . . a prolonged period of time, it is

reasonable to presume that it views the case as over." Fiore, 960

F.2d at 236. See also Falls Stamping and Welding Co. v. Int'l

Union, United Auto. Workers, 744 F.2d 521, 526 (6th Cir. 1984)

(finding that, although facts were distinguishable, "[w]hat can be

extracted from [Bankers Trust] and applied here is the general

principle that the requirements of Rule 58 may be waived under

certain circumstances" and that "in determining the appropriateness

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of waiver, the Court in [Bankers Trust] emphasized a common-sense

application of Rule 58 rather than a technical application as long

as no parties have been misled").5
Finally, White asserts that his actions following the

1987 dismissal evidence the fact that he intended all along to

challenge the court's order and therefore rebut any inference of
waiver under Fiore. We have already detailed the limited actions

White took regarding his habeas petition following his capture and

return to prison. We put aside for now White's claim that he

prepared and mailed a motion to vacate the dismissal in August of

1987, as we find that his claim, introduced only in his Second

Motion for Reconsideration, is not admissible at this stage. See

infra Part D. As to the evidence that White corresponded with the
district court in 1990, we are unconvinced that his letters were

sufficient to overcome an inference of waiver, especially when they

were written some three years after the 1987 dismissal and were not
followed up with any motions or appeals in federal court for

another seven years. Similarly, even if we credit White's

assertion that he initially thought he could revive his federal

habeas petition only after exhausting his state remedies, he has

5
Although not applicable to this appeal, we note that proposed
amendments to Rule 58 of the Federal Rules of Civil Procedure and
to Rule 4(a) of the Federal Rules of Appellate Procedure,
submitted to the Supreme Court in November of 2001, adopt a rule
similar to our Fiore holding. The proposed Rules 58 and 4(a)
establish that, where a separate document is required but
inadvertently not entered, the time for appeal will begin to run
150 days after the entry of the judgment or order in the civil
docket. Federal Rulemaking, Pending Rules Amendments Awaiting
Final Action, Amendments Submitted to the Supreme Court (November
2001), available at http://www.uscourts.gov/rules/supct1101.html.

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provided no credible explanation for why he continued to delay

seeking federal relief, even after this 1990 correspondence

indicated an intention to do so.
Moreover, whatever confusion White may have had as to the

status of the dismissal, it did not stem from the fact that the

judgment was not entered on a separate document. Fiore's holding

was anchored in the broader principle that judgment on a separate

document should not be required where waiving it would not mislead

or prejudice the appellee. Bankers Trust, 435 U.S. at 387; see

also Fiore, 960 F.2d at 236 n.11 ("The three-month period generally

should ensure that a failure to appeal was a matter of choice, not

confusion . . . ."). Certainly nothing in White's actions suggest

that he would have properly appealed the 1987 Dismissal but for the
fact that he believed no final judgment triggering the running of

the time for appeal had issued. As such, he was not "prejudiced or

misled by lack of a separate document." Wang Labs., 926 F.2d at 96.

We therefore find that White has waived his right to

judgment on a separate document, making his appeal of the 1987
Dismissal untimely. We do not reach the merits of the dismissal.

B. The 1999 Order

White's November 27, 2000 notice of appeal also stated

that he wished to appeal from the September 27, 1999 order denying

his motion for relief. Although White filed the First Motion for

Reconsideration following the 1999 Order, the time for appealing

the 1999 Order was not tolled because the motion for

reconsideration, filed on October 29, 1999, post-dated the order by

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more than ten days. Fed. R. App. P. 4(a)(4)(A); Fed. R. Civ. P.

59. White relies again on the lack of a separate document setting

forth the 1999 order to argue that his 14 month delay in seeking
the appeal should be excused. A review of the record indicates

that the order was indeed not entered on a separate document.

Although appellee has encouraged us to find that White also waived
the separate document requirement as to the 1999 Order, neither

White nor appellee have briefed us on whether Fiore can be applied

to the facts as they relate to this order. In particular, we note

that the First Motion for Reconsideration referred to above was

filed within three months of the 1999 Order. Although White did

not take action by "fil[ing] a motion for entry of judgment," we

are not prepared to say, on the facts of this case, that White
"fail[ed] to act within three months of the court's last order in

the case" within the meaning of Fiore, 960 F.2d 236, and therefore

decline to infer waiver.6

Having determined that we have jurisdiction to review the

1999 Order, we easily affirm it. We review the district court's

refusal to grant favorable reconsideration for abuse of discretion.

6
In Fiore itself, we found that the appellant had not waived
the Rule 58 requirement where he followed up a June 27, 1990
decision, which was not entered on a separate document, with a July
17, 1990 motion seeking reconsideration, but waited until October
22, 1990 to move for entry of final judgment on the June 27
decision. 690 F.2d at 236-37. But see United States v. Podolsky,
158 F.3d 12, 15-16 (1st Cir. 1998) (holding that Fiore waiver rule
applied to a five-month delay in filing a notice of appeal on a
decision, not entered on a separate document, denying a motion for
return of property, even though appellant had sent a letter to the
court within three months of the decision, asking that a belatedly
filed response to the motion be considered a motion for
reconsideration).

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See Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992);

Parrilla-Lopez v. United States, 841 F.2d 16, 19 (1st Cir. 1988);

Pagan v. Am. Airlines, Inc., 534 F.2d 990, 993 (1st Cir. 1976). We
have already established that White waived the separate document

requirement as to the 1987 Dismissal. Hence, for the same reasons

that we now lack jurisdiction to review the 1987 Dismissal,7 the
district court properly determined that it would not, indeed could

not, exercise its discretion to review the ten-year old dismissal.8

7
Although White's 1997 motion sought relief from the 1987
Dismissal under both Rule 59 and Rule 60, it was untimely under
either rule. Fed. R. Civ. P. 59(b) ("Any motion for a new trial
shall be filed no later than 10 days after entry of the judgment");
Fed. R. Civ. P. 59(e) ("Any motion to alter or amend a judgment
shall be filed no later than 10 days after the entry of the
judgment."); Fed. R. Civ. P. 60(b) ("The motion shall be made
within a reasonable time, and . . . not more than one year after
the judgment, order, or proceeding was entered or taken.").
Furthermore, we decline to consider White's argument that, because
final judgment had not entered, his 1997 motion for relief from
the 1987 Dismissal was analogous to a motion to set aside a default
under rule 55(c), because we have already determined that the 1987
Dismissal was a final judgment, and because White made this
argument for the first time on appeal.
8
On appeal, White additionally takes issue with the district
court's position that "[a]ssuming, without finding, that the court
has the discretion to reconsider its 1987 decision, it is not
appropriate to do so." 1999 Order at 4. White argued that the
district court exercised its discretion without taking into account
factors such as the merits of White's claim and the policy of the
Commonwealth of Massachusetts for reinstatement of appeals
following the return of a fugitive. He further argued that the
district court inappropriately considered the fact that AEDPA,
which post-dates White's petition by a decade, codified Congress's
view that the public interest is best served when claims of
unconstitutional conduct are reviewed promptly. See 1999 Order at
4-5. Having found that the district court properly based the 1999
Order on the untimeliness of White's motion for relief from the
1987 Dismissal, we also point out that it correctly put aside
considerations such as the merits of White's habeas claim or policy
issues. We need not address these additional arguments made by
White.

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 We accordingly move on to the denials of White's First and

Second Motions for Reconsideration for which timely appeals were

filed.
C. Denial of the First Motion for Reconsideration

In his First Motion for Reconsideration, White argued that the

1999 Order rested on inaccurate assumptions of material fact
concerning his knowledge and intentions following the 1987

Dismissal. White contended that his post-1987 dismissal conduct

reflected an ignorance of legal procedure as well as misguided

efforts to pursue an exhaustion of state remedies before returning

to federal court. As such, he claimed, his conduct could not be

interpreted as indicative of an intent to abandon the habeas

process and waive the separate document requirement. In denying
this motion, the district court held that any confusion on White's

part as to the status of his case -- i.e. whether it was on hold

pending exhaustion of state remedies -- could not be attributed to
the absence of judgment having been entered on a separate document

and reiterated its position that a delay of ten years before

seeking post-judgment relief constituted waiver. 2000 Order at 4-

5.

As already noted, we review the denial of a motion for

reconsideration for abuse of discretion. See Mackin, 969 F.2d at

1279; Parrilla-Lopez, 841 F.2d at 19; Pagan, 534 F.2d at 993. In

the context of determining our own jurisdiction to hear White's

appeal, we discussed his actions following the 1987 dismissal and

held that they did not counteract a finding of waiver. We

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accordingly affirm the district court's denial of White's First

Motion for Reconsideration.

D. Denial of the Second Motion for Reconsideration

White filed his Second Motion for Reconsideration, which

requested the district court to reverse the denial of his First

Motion for Reconsideration, on the grounds that he had in the
interim discovered that, following his capture and return to

Massachusetts, he had signed and mailed a motion to vacate the 1987

Dismissal (hereinafter "1987 Motion to Vacate"). The 1987 Motion

to Vacate was allegedly prepared by a jail house lawyer, William

Gilday, and signed and put in the prison mail system by White in

August of 1987. White argued that this evidence showed that he had

attempted to revive his habeas petition within a reasonable time
frame and therefore contradicted the district court's finding of

waiver.9 White further argued that his failure to previously bring

this information to the attention of the court should be excused by
the fact that he had forgotten that he had filed the motion. In

his affidavit in support of the Second Motion for Reconsideration,

White stated that Gilday reminded him of the 1987 Motion to Vacate

9
Recognizing that the 1987 Motion to Vacate was apparently not
received by the district court and was never docketed, White argued
that under the "mailing is filing" rule, Houston v. Lack, 487 U.S.
266, 270 (1988), applicable to the efforts of pro se prisoners, his
action should be taken as at least sufficient to rebut any
inference of waiver under Fiore. Furthermore, although he
allegedly mailed the 1987 Motion to Vacate more than three months
after the 1987 Dismissal, he argued that the fact that it was filed
within three months of his apprehension and return to Massachusetts
was sufficient to overcome an inference of waiver. In light of our
holding that the letter was not newly discovered evidence,
discussed infra, we need not consider these arguments.

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"several months [before November 2000]," after Gilday's transfer to

the facility in which White was incarcerated. Gilday filed an

affidavit stating that he found an unsigned copy of the 1987 Motion
to Vacate in September 2000, after inventorying legal papers that

had been seized in 1991 and returned to him the previous month, and

that he brought the letter to White's counsel's attention in
October 2000. Relying on these facts to argue that the 1987 Motion

to Vacate was newly discovered evidence within the meaning of Rule

60(b) of the Federal Rules of Civil Procedure, White contended that

the district court was therefore authorized to reconsider its

denial of White's First Motion for Reconsideration.

The district court held that, notwithstanding White's alleged

efforts in 1987 to move for reconsideration, the court's position
that White had waived the separate document requirement would not

change. First, the court explained, White had not been misled by

the failure of the court to comply with the separate document
requirement; if anything, the alleged 1987 Motion to Vacate

evidenced that White had understood the 1987 Dismissal to be final.

2001 Order at 13. Second, the court pointed out that, even

assuming White had filed the 1987 Motion to Vacate, the ten year

gap between that motion and the 1997 motion for relief could still

arguably constitute waiver. Id. Alternatively, the district court

also concluded that the alleged 1987 Motion to Vacate was not

"newly discovered evidence" within the meaning of Rule 60(b)(2),

and that, moreover, the factual record did not support White's

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assertion that he had indeed filed the motion. 2001 Order at 13-

14.

Once again, we review the district court's denial of the
Second Motion for Reconsideration for abuse of discretion. See

Mackin, 969 F.2d at 1279; Parrilla-Lopez, 841 F.2d at 19; Pagan,

534 F.2d at 993. Succeeding on a motion under Rule 60(b)(2)
requires the movant to demonstrate that the evidence could not have

been discovered earlier by the exercise of due diligence. See

Mitchell v. United States, 141 F.3d 8, 18 (1st Cir. 1998); see also

Putnam Resources v. Pateman, 757 F. Supp. 157, 170 (D.R.I. 1991)

(holding that even if the movant was not aware of the evidence at

the time of the trial, the movant must be able to explain why the

evidence was undiscoverable). Under this standard, we cannot say
that the district court abused its discretion when it held that

White "should have been aware of the existence of this 'evidence'

and he cannot now persuasively assert that it has been 'newly'
discovered." 2001 Order at 14. Furthermore, we defer to the

district court's determination that, even if the 1987 Motion to

Vacate could be considered newly discovered evidence, it would not

have aided White's cause. In the context of a delay of multiple

years, the alleged mailing of one motion, which apparently was

never received by the court and never mentioned in White's

subsequent correspondence with the court, is hardly compelling

enough to warrant re-opening a long dormant case, especially where

reconsideration is discretionary. We see no abuse of discretion

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here and affirm the denial of White's Second Motion for

Reconsideration.

III.

We accordingly hold that we lack jurisdiction to review the

1987 Dismissal and affirm the remaining three district court orders
before us on appeal.

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 APPENDIX:
Rules Submitted to the Supreme Court, November 2001

Proposed Amendments to Rule 58 of the Federal
Rules of Civil Procedure

Rule 58. Entry of Judgment

(a) Separate Document.

(1) Every judgment and amended judgment must be
set forth on a separate document, but a separate
document is not required for an order disposing of
a motion:

(A) for judgment under Rule 50(b);

(B) to amend or make additional findings of fact
under Rule 52(b);
(C) for attorney fees under Rule 54;

(D) for a new trial, or to alter or amend the
judgment, under Rule 59; or

(E) for relief under Rule 60.

(2) Subject to Rule 54(b):
(A) unless the court orders otherwise, the clerk
must, without awaiting the court's direction,
promptly prepare, sign, and enter the judgment
when:

(i) the jury returns a general verdict,

(ii) the court awards only costs or a sum certain,
or

(iii) the court denies all relief;

(B) the court must promptly approve the form of
the judgment, which the clerk must promptly enter,
when:

(i) the jury returns a special verdict or a
general verdict accompanied by interrogatories, or

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(ii) the court grants other relief not described
in Rule 58(a)(2).
(b) Time of Entry. Judgment is entered for
purposes of these rules:
(1) if Rule 58(a)(1) does not require a separate
document, when it is entered in the civil docket
under Rule 79(a), and

(2) if Rule 58(a)(1) requires a separate document,
when it is entered in the civil docket under Rule
79(a) and when the earlier of these events occurs:

(A) when it is set forth on a separate document,
or

(B) when 150 days have run from entry in the civil
docket under Rule 79(a).

(c) Cost or Fee Awards.

(1) Entry of judgment may not be delayed, nor the
time for appeal extended, in order to tax costs or
award fees, except as provided in Rule 58(c)(2).
(2) When a timely motion for attorney fees is made
under Rule 54(d)(2), the court may act before a
notice of appeal has been filed and has become
effective to order that the motion have the same
effect under Federal Rule of Appellate Procedure
4(a)(4) as a timely motion under Rule 59.

(d) Request for Entry. A party may request that
judgment be set forth on a separate document as
required by Rule 58(a)(1).

Proposed Amendments to Rule 4(a) of the Federal
Rules of Appellate Procedure

Rule 4. Appeal as of Right -- When Taken

(a) Appeal in a Civil Case.

*****

(7) Entry Defined.

(A) A judgment or order is entered for purposes of
this Rule 4(a):

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(i) if Federal Rule of Civil Procedure 58(a)(1)
does not require a separate document, when the
judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1)
requires a separate document, when the judgment or
order is entered in the civil docket under Federal
Rule of Civil Procedure 79(a) and when the earlier
of these events occurs:

S the judgment or order is set forth on a
separate document, or

S 150 days have run from entry of the judgment
or order in the civil docket under Federal
Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on
a separate document when required by Federal Rule
of Civil Procedure 58(a)(1) does not affect the
validity of an appeal from that judgment or order.
*****

Federal Rulemaking, Pending Rules Amendments
Awaiting Final Action, Amendments Submitted to the
Supreme Court (November 2001), available at
http://www.uscourts.gov/rules/supct1101.html.

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