United States v. Bertram

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1995
• Docket: 95-10099
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-10099 Summary Calendar _____________________

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 Pursuant to that rule, the court has determined that this opinion should not be published.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Bertram, No. 87-1236 (5th Cir. Sept. 15, 1987) (unpublished).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]

- 2 - 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)

- 3 - (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.

- 4 - "[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

- 5 - 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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