
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          December 9, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                  __________________                     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.                                   ______________                                 ___________________               Frank Porter, Jr. on brief pro se.               ________________               A. John  Pappalardo, United  States Attorney, and  Victor A.               ___________________                                _________          Wild, Assistant United States Attorney, on brief for appellee.          ____                                  __________________                                 __________________                  Per Curiam.   The issue before us is  whether the district                 __________          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                            ______ ______          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.                                                           _____________          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               ______ ______          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              ______          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               ______          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                        ___  _____________    _____________________________          18 Oakwood St.,  958 F.2d 1,  5 (1st  Cir. 1992) (citing  cases);          ______________          United States  v. Ayer, 857  F.2d 881, 886  (1st Cir. 1988).   We          _____________     ____          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              ______          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                                         -3-          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                   ______          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                                 ______          "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                                               ______          denied on the merits, well after the letter motion was received.                                         -4-                 Finally,   appellant  argues   that  the   district  court          incorrectly  treated his habeas  petition as a  motion for relief                                   ______          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,                                                           ______          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                                                                     ______          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                                         -5-          appropriately, and  correctly dismissed,  in light of  the policy          and procedures under 28 U.S.C.   2255.                  Affirmed.                 ________          So ordered.          ___________                                         -6-
