Porter v. Pelino

Opinion

USCA1 Opinion

December 9, 1992      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

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]
                                              ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ___________________

               Frank Porter, Jr. on brief pro se.
               ________________
               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).
          ______

                 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.
                                                           ______

          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.
          ______

                 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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