
USCA1 Opinion

	




          March 22, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          Nos. 92-1801               92-2292               92-2449                                              WILFRED HART, JR.,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Wilfred Hart, Jr. on brief pro se.               ________________               Jay P.  McCloskey, United  States Attorney, and  Margaret D.               _________________                                ___________          McGaughey,  Assistant  United  States  Attorney,  on  brief   for          _________          appellee.                                  __________________                                  __________________                      Per  Curiam.    Petitioner-appellant  Wilfred Hart,                      ___________            Jr.,  has filed three appeals arising out of a district court            injunction  barring  Hart  from  further  repetitive  filings            without  leave  of court.   With  the  exception of  a single            matter,  we affirm the rulings  of the district  court in all            three appeals.                              Appeal no. 92-1801                              __________________                      In  conjunction  with the  dismissal  of  a    2255            petition  filed by  Hart, the  district court,  noting Hart's            "frivolous motions and  duplicative pleadings which  encroach            on the  Court's limited time and  resources, . . .  which can            only be  calculated to  disrupt the orderly  consideration of            cases,  .  . .  and which  merely  restate claims  which have            already made [sic] and which have been denied", entered a sua                                                                      ___            sponte  order  on  February  12, 1992,  enjoining  Hart  from            ______            further filings  in connection with his  1988 drug conviction            without prior leave of  court.  After Hart filed a  motion on            March 10, 1992, objecting  that he had not been  given notice            and an opportunity to be heard  before the injunction issued,            the district court  on that same date vacated  its injunction            "in  order to permit [Hart] to make whatever showing he can."            Hart was  directed to file a  memorandum of law on  the issue            within thirty days.                        Over three months later, on June 23, 1992  -- after            Hart had filed nothing further pertaining to the injunction -                                         -2-            -  the  district  court   issued  an  order  reinstating  the            injunction, "with slight modifications."    The court's order            concluded as follows:                           It   is  hereby   ORDERED  that                                             _______                           Wilfred  Hart is  enjoined from                           filing  any motions,  pleadings                           or papers of  whatever type  or                           description in  the District of                           Maine,  in connection  with his                           1988 conviction for  controlled                           substance   violations  without                           prior leave of Court.  Hart may                           seek leave of Court by filing a                           summary of the claims  he seeks                           to  raise  (not  to exceed  one                           page  per claim)  together with                           an  affidavit  certifying  that                           the claims are  novel and  have                           not   previously   been  raised                           before this Court or  any other                           federal court.  Upon failure to                           so  certify  or  failure to  so                           certify truthfully, Hart may be                           found in contempt of  court and                           punished accordingly.            Hart filed  a timely  notice of appeal  from this  injunction            (appeal no. 92-1801).                      We  have  stated  that  "[f]ederal  courts  plainly            possess  discretionary  powers  to  regulate the  conduct  of            abusive litigants."  Cok v. Family Court of Rhode Island, 985                                 ___    ____________________________            F.2d 32,  34  (1st  Cir. 1993).    Accordingly,  "in  extreme            circumstances  involving  groundless  encroachment  upon  the            limited time and resources of the court and other parties, an            injunction  barring  a  party   from  filing  and  processing            frivolous and vexatious lawsuits may be appropriate."  Castro                                                                   ______            v.  United States, 775  F.2d 399,  408 (1st  Cir. 1985).   We                _____________                                         -3-            review  the  issuance  of such  an  injunction  for abuse  of            discretion.  Id.                         __                      In its February 12,  1992 order, the district court            set  out  a history  of  abusive,  vexatious, and  repetitive            litigation which  clearly established  a need for  injunctive            measures.   Hart  has filed  petitions for  collateral relief            from  his criminal  conviction  in at  least three  different            district courts.  "In  this collateral proceeding alone," the            district court pointed out, "Hart has filed some twenty-seven            separately   docketed   documents,   most   of   which   defy            categorization."  In our opinion affirming Hart's conviction,            this court also noted that before conviction, Hart at various            different  times had "filed a flood of motions, many pro se,"            "filed fifteen pro se petitions for writs of habeas corpus or            related civil  causes of action,  all of which  were denied,"            filed "a torrent  of new  pro se motions,"  and "deluged  the            court with at least sixty-six different motions, most of them            pro se."  United States v. Hart, 933 F.2d 80, 81-82 (1st Cir.                      _____________    ____            1991).                      Restrictions  on filing  "must be  tailored to  the            specific circumstances  presented."  Cok, supra,  985 F.2d at                                                 ___  _____            34.  Thus, we  have found too sweeping an  injunction against            commencing any  actions in  the district court  without prior                       ___            approval,  where the  record  did not  show "such  widespread            abuse of the judicial system as to warrant such a broad . . .                                         -4-            prohibition."   Id. at 36.   In this case,  the injunction is                            __            limited to  filings  relating to  Hart's  oft-litigated  1988            federal  narcotics  conviction.    The  injunction  places no            limits  on  any other  sorts of  filings.   The  record amply            justifies this relatively narrow proscription.                      Hart alleges a violation  of his due process rights            by virtue of the  fact that the injunction was  not requested            by the government, but  was entered by the court sua sponte.                                                              __________            Sua sponte  entry of such an injunction, however, is improper            __________            only where the  plaintiff is "not  warned or otherwise  given            notice that  filing restrictions were contemplated."   Id. at                                                                   __            35.   Here, by contrast,  Hart was given ample  notice of the            issue  and  ample opportunity  to  respond  before the  court            finalized the injunction on June 23, 1992.                      Hart  contends that  the district  court improperly            failed   to  consider  his   objections  to  the  injunction,            contained in a motion  and accompanying memorandum Hart filed            on March 10, 1992,  and wrongly stated  in its June 23,  1992            order  that  he  not filed  any  objections.    All that  the            district  court stated in  its June 23,  1992 order, however,            was that Hart had failed to file the additional memorandum of            law the district  court had invited him to file  in its March            10,  1992 order.  In that  March 10, 1992 order, the district            court expressly referred to Hart's motion of that  same date,            and  to Hart's argument in that motion and memorandum that he                                         -5-            had  not been given notice  and an opportunity  to respond to            the  district court's February  12, 1992 order.   Clearly the            district  court in  fact did  not ignore  or overlook  Hart's            motion and memorandum.   We  can presume that  the court  did            consider the arguments Hart advanced therein.                        Hart also  claims that the terms  of the injunction            are  impermissibly vague.  For  example, he sees ambiguity in            the  requirement  that  he   raise  challenges  to  his  1988            conviction that "have not  previously been raised before this            Court or any other  federal court."  According to  Hart, this            formulation leaves it unclear  whether claims he raised which            in  fact were  never  adjudicated by  the  federal court  are            covered   by  the   injunction.     Although  we   leave  the            construction of the  injunction to the district  court in the            first  instance,  we note  that a  dismissal  of a  motion or            petition that does not expressly discuss issues raised in the            motion or petition ordinarily would be assumed to dismiss all                                                                      ___            issues that had been raised.  We see no vagueness problem  in            the  district   court's  injunction.     Hart's  many   other            suggestions of vagueness are all without merit.                      Hart further claims that the injunction is based on            the  district  court's  erroneous  statement in  its  initial            February  12, 1992 order that the court by separate order had            "dealt with  all  pending  motions  in this  matter."    Hart            objects that  some motions  in his  original   2255  petition                                         -6-            remain undecided.   Even  assuming, arguendo, that  Hart were                                                ________            correct --  an issue we need not decide here -- such an error            would  not detract  from the  validity of  the injunction  at            issue.                                   Appeal no. 92-2292                                 __________________                      After   the  issuance   of  the   injunction,  Hart            submitted papers for filing in the district court on July 20,            July 24, and September  8, 1992.  All three  submissions were            summarily rejected for filing on the ground that Hart did not            comply  with  the injunction.    Hart filed  a  timely second            notice of appeal from the third of these rejections.                        Hart challenges  the district court's  rejection of            his  proffered  filings.     Since  Hart's  submissions  were            returned to him without filing, they are not in the record on            appeal.   The  government,  however, states  in its  brief on            appeal that  with  each  submission Hart  did  not  file  the            required  accompanying affidavit  certifying that  the claims            were novel, or the required one-page summary of each claim he            sought to raise.   In  his filings on  appeal, Hart does  not            appear  to  contest  this.   Consequently,  we  affirm  these            district court orders.                                  Appeal no. 92-2449                                  __________________                      On  October 13,  1992,  Hart filed  another    2255            petition raising  ten claims.   The petition gave  a one-page            summary of each  claim, and was  accompanied by an  affidavit                                         -7-            certifying  that the claims were  novel.  On  October 20, the            district  court clerk  sent Hart  a  letter stating  that the            district judge had summarily rejected the petition for filing            on the ground that it violated the injunction.                      On October 22, Hart filed an eleventh   2255 claim,            alleging that Hart had  not been competent to stand  trial in            1988, when  he was  convicted.  In  a November  2 order,  the            district  court  stated  that  Hart  had  complied  with  the            injunction's requirements  of  an affidavit  and  a  one-page            statement regarding this claim,  but that the court  was "not            satisfied" that the  claim was  novel.  "In  any event,"  the            court  concluded, "if  [Hart]  failed to  properly raise  the            issue of competence at an earlier proceeding, the issue  must            now be deemed waived and incapable of review by this Court."                      On November  16, Hart filed  a motion for  leave to            file a motion  requesting that the  court explain why  Hart's            October  13  filing  of  ten  claims  had been  rejected  for            violation  of the  injunction.   In a  December 3  order, the            court denied leave  to file, stating  that Hart's October  13            filing  of ten  claims had  been  rejected because  of Hart's            "failure to state  claims that were novel  and not previously            raised  in  federal court."    Hart followed  with  his third            notice of appeal.                         We affirm the district court's refusal to allow the            filing of Hart's  claim that  he was not  competent to  stand                                         -8-            trial.   Hart  had  raised this  same  issue  at trial.    In            response,  the   trial   court  had   ordered   psychological            evaluations  to  look  into  Hart's  competence,  but   these            evaluations   "could  not  be  completed  because  of  Hart's            intransigence," so "the issue of competency was mooted by the            court".  Hart,  supra, 933 F.2d  at 82.   Thus, the  district                     ____   _____            court was justified in rejecting the competence claim, either            as frivolous or as not novel for purposes of the injunction.                      We also  affirm  the district  court's  refusal  to            allow the filing of  nine of Hart's ten other  claims.  Three            of these claims  -- that the presentence report  contained an            incorrect  date for  Hart's arrest,  that the  district court            erred  in finding  that  Hart  made  a threat  to  intimidate            witnesses, and  that drug evidence was  materially altered in            the  government's possession -- were raised  by Hart at trial            or at the sentencing hearing, and disposed of by the district            court.   A  fourth claim  -- that  Hart was  denied effective            assistance  of counsel  at  trial --  was  pressed on  Hart's            direct appeal,  and "dismissed in perpetuity"  by this court.            Id. at 83.   The district court properly rejected  these four            __            claims  for filing,  under the  terms of  the district  court            injunction, on the ground that they were not novel.                      Another five  of  these ten  claims  arguably  were            raised  for the  first  time, but  could  properly have  been            dismissed in any event as frivolous.  Consequently, we affirm                                         -9-            the district court's rejection  of these five claims  on that            basis.   Helvering v. Gowran, 302 U.S. 238, 245 (1937) (court                     _________    ______            of appeals may affirm on any ground presented by the record).            We shall briefly discuss each of these five claims in turn.                      (1)  Hart challenges  the district court's  alleged            reliance in sentencing on a finding that Hart had induced his            own  brother to participate in a drug conspiracy.  The record            reveals, however, that at the sentencing hearing the district            court  noted Hart's  denial of  such inducement, and  made no            further  mention of the matter.   The record  thus shows that            this was not a factor in sentencing.                      (2)   Hart asserts that  his rights were  denied at            trial  because  he  was  not  present  at  a  sidebar   bench            conference   concerning  legal  objections   to  two  cocaine            exhibits.  The trial transcript, however, shows that Hart did            not  object when the sidebar conference was held.  During the            conference, Hart's  counsel objected to  the district court's            ruling as to the  two exhibits, but on direct  appeal neither            Hart's counsel nor Hart -- who filed a pro se brief on appeal            -- raised the matter.                      (3)  At the  sentencing hearing, the district court            reviewed  a photocopy of a letter stating that Hart had saved            a  man's life.  Hart  objects that the  district court should            have required the original.  The transcript reveals  that the            district court  reviewed the photocopy --  which Hart himself                                         -10-            had provided  -- only  after ascertaining that  neither party            objected.   Hart does  not claim that  the photocopy differed            from the original in any way.                      (4)   Hart  objects that  in closing  argument, the            prosecutor stated that Hart had asserted that he had supplied            merely incense,  not cocaine.   The trial  transcript reveals            that  neither  Hart  nor  Hart's  counsel  objected  to  this            statement.    Hart's  counsel  and the  district  court  both            summarized  Hart's defense the same way.  Indeed, so did this            court on direct appeal.  Id. at 82.                                     __                      (5)   During its deliberations the jury sent a note            to the court stating, "May we have any testimony  on Count IX            concerning William Christiansen?"   The trial judge discussed            the  matter in  chambers with  counsel for  both sides.   The            court and counsel  identified the relevant testimony,  agreed            that the court reporter would read that testimony to the jury            in open court, and agreed that the testimony would be read in            the  order it  came in at  trial.   This was done.   Hart now            asserts  that  he was  not present  in  open court  when this            testimony was read to the jury, and contends that his absence            violated his right under Fed. R. Crim. P. 43(a) to be present            "at every stage of the trial."                      The government  does not discuss this  claim in its            briefs, and  thus has not  disputed Hart's assertion  that he            was  not  present  in open  court  on  this  occasion.   Even                                         -11-            assuming, arguendo, that  he was  not, and that  his Rule  43            rights  were  violated,  there  was  clearly   no  reasonable            possibility  that  his  exclusion  influenced  the  jury   in            reaching  its verdict.  All  that occurred in  open court was            that the  court reporter  read to  the jury  certain excerpts            from the trial transcript.  Hart's counsel already had agreed            to these excerpts, and to the order in which they were  read.            There was nothing more that Hart himself plausibly could have            done to protect his  rights.  Although Hart contended  in his            submission that  the choice  of excerpts was  stacked against            him,  he has  not  identified any  particular testimony  that            should have  been included but  was not.  Nor  did Hart raise            this  issue on  direct appeal, when  he filed his  own pro se            brief.   We conclude that even if we were to apply the strict            harmless error standard  for constitutional deprivations, see                                                                      ___            United States v.  Maraj, 947  F.2d 520, 526  (1st Cir.  1991)            _____________     _____            (noting  that this circuit has left open the question of what            harmless error standard applies  in a similar situation), any            error was harmless beyond a reasonable doubt.                      This  brings us  to the  tenth  and final  claim in            Hart's October 13, 1992 filing.  In that claim, Hart asserted            that  the copy  of his  presentence report  on file  with the            Bureau  of Prisons does not  contain a written  record of the            district court's  factual resolution of a  number of disputed            matters  arising out of the  presentence report that Hart had                                         -12-            raised at the  sentencing hearing.   Hart appended copies  of            letters  from officials of the Bureau of Prisons which appear            to support his  assertion.   Hart argued that  this state  of            affairs violated Fed. R. Crim. P. 32(c)(3)(D), which requires            that  after the  sentencing court  resolves  factual disputes            arising out of the presentence report, "[a] written record of            such  findings and  determinations shall  be appended  to and            accompany any copy  of the  presentence investigation  report            thereafter made available to the Bureau of Prisons."                      In its supplemental brief on appeal, the government            does not  appear to  contest Hart's allegation  that, in  the            government's words, "the Bureau of Prisons evidently does not            have in separate written form the findings and determinations            the district court made at sentencing."  As a remedy for this            technical violation, the  government argues,  "the most  that            would be required would be for the sentencing court .  . . to            reduce to writing the specific findings on the disputed facts            that it made orally on the record at sentencing."                      We can only conclude, therefore, that this claim of            a  Fed. R. Crim. P. 32(c)(3)(D) violation has not been raised            before  and is  not so  patently insubstantial  as to  permit            affirmance  based  on the  present  record.   We  accordingly            reverse the district court's refusal  to permit the filing of            this single  claim.  In so  ruling, of course,  we express no            view of the substantive or procedural validity of this claim.                                         -13-            We merely direct the  district court to accept the  claim for            filing.                      We  remand this  claim to  the district  court with            directions  that the  district court  accept for  filing this            single  portion of  Hart's  October 13,  1992 submission  and            process this claim in the normal course.                                    Conclusion                                    __________                      We have considered all of Hart's other arguments in            all  three appeals, and we  reject all of  them as meritless.            In  particular, we  affirm  the district  judge's failure  to            recuse himself on the ground that at no time  has Hart stated            even a colorable basis for recusal.                      Hart's request that  the government's  supplemental            brief be struck is denied.                                 ______                      Hart's  "Fed. R.  App. P.  27(a) motion  to modify"            this court's December 8,  1993 supplemental briefing order is            denied.            ______                      The district court's refusal  to accept for  filing            Hart's  October  13,  1992  claim  of  a  Fed.  R.  Crim.  P.            32(c)(3)(D) violation  is reversed, and that  single claim is                                      ________            remanded  to  the  district  court  for  further  proceedings            ________            consistent with  this opinion.  The  district court's rulings            are in all other respects affirmed.                                      ________                                         -14-
