                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2008

Pray v. Dept of Justice
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5462




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-5462


                                    WAYNE PRAY,
                                            Appellant

                                           v.

                             DEPARTMENT OF JUSTICE


                    On Appeal from the United States District Court
                           for the District of New Jersey
                         D.C. Civil Action No. 00-cv-00402
                            (Honorable John W. Bissell)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 5, 2008

      Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.

                                 (Filed: August 4, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

       Wayne Pray appeals the denial of his Fed. R. Civ. P. 60(b)(3) motion for relief

from an order denying his petition for writ of mandamus. We will affirm.
                                           I.

       In 1989, Wayne Pray was convicted of multiple narcotics offenses and sentenced

to life imprisonment.1 Pray pursued a series of unsuccessful direct2 and collateral3 attacks

on his conviction and sentence. In January of 2000, Pray filed a petition for writ of

mandamus under 28 U.S.C. § 1361. He sought to compel the Government to issue a

notice under 18 U.S.C. § 2518(8)(d) informing him he was the subject of a federal

wiretap under the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18

U.S.C. §§ 2510-2522. The District Court denied his petition and this court affirmed.4

Pray then filed a pro se Fed. R. Civ. P. 60(b)(3) motion for relief from the District Court’s

order denying his petition for writ of mandamus. In August 2005, the District Court

denied Pray’s Rule 60(b)(3) motion. Pray now appeals the denial of this motion.5


   1
    We affirmed Pray’s conviction and sentence. United States v. Pray, 975 F.2d 1552
(3d Cir. 1992).
   2
   In 1993, Pray filed a motion for reduction of his sentence, which the District Court
denied. In 2005, Pray filed a motion to correct for error in sentencing under Fed. R.
Crim. P. 35(a), which the District Court also denied.
   3
    In 1997, Pray filed a petition to vacate his sentence under 28 U.S.C. § 2255. The
District Court denied the motion and declined to issue a certificate of appealability on
remand. We denied Pray’s request for en banc review and his motion to recall the
mandate in that proceeding. In 2001, we denied Pray’s requested authorization to file a
successive 28 U.S.C. § 2255 motion.
   4
   Concurrent with his appeal, Pray filed an untimely motion for reconsideration under
Local Civil Rule 7.1(g), which the District Court denied.
   5
   The District Court had jurisdiction under 28 U.S.C. § 1361. We have jurisdiction
under 28 U.S.C. § 1291.

                                                2
                                              II.

                                              A.

       We review the denial of Rule 60(b) relief for abuse of discretion. Coltec Indus.,

Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). Abuse of discretion may result from

“an errant conclusion of law, an improper application of law to fact, or a clearly

erroneous finding of fact.” McDowell v. Phila. Hous. Auth., 423 F.3d 233, 238 (3d Cir.

2005). Rule 60(b)(3) allows the court to “relieve a party . . . from a final judgment, order,

or proceeding for . . . fraud, . . . misrepresentation, or other misconduct of an adverse

party.” The movant must show “the adverse party engaged in fraud or other misconduct,

and that this conduct prevented the moving party from fully and fairly presenting his

case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983).

                                              B.

       Pray contends the Government engaged in a pattern of misrepresentation and fraud

on the District Court by concealing evidence of a federal wiretap and by generating

fraudulent documents. The Government provides affidavits from Assistant United States

Attorneys and federal agents involved in Pray’s case, disclaiming knowledge of any

wiretap undertaken or applied for by the federal government. Additionally, the

Government provides affidavits stating Pray was not listed as the subject of a wiretap in

any index maintained by the Drug Enforcement Agency, the Federal Bureau of




                                              3
Investigation, the Customs Service, or the Bureau of Alcohol Tobacco, Firearms and

Explosives.

       Pray contrasts the Government’s sworn statements with records he obtained

primarily through Freedom of Information Act requests under 5 U.S.C. § 552. These

records reference: (1) consensual wiretaps excluded from Title III’s notice provisions

under 18 U.S.C. § 2511(2)(c), (2) a wiretap undertaken by New Jersey’s Hudson County

Prosecutor’s Office about which Pray had notice, and (3) the contemplation of a Title III

wiretap by federal agencies. Pray concludes these records show the federal government

conducted or applied for a Title III wiretap. Because Pray’s conclusions conflict with the

Government’s affidavits, he argues the Government deliberately concealed the wiretap

through a pattern of fraud and misrepresentation directed at the District Court. Moreover,

he contends this fraud and misrepresentation inhibited his ability to fully and fairly

present his petition for writ of mandamus and his 28 U.S.C. § 2255 habeas corpus

petition.

       In the District Court, Pray did not argue the alleged fraud affected his ability to

fully and fairly present his habeas corpus petition. “‘As a general rule, we do not

consider on appeal issues that were not raised before the district court.’ This rule,

however, ‘is one of discretion rather than jurisdiction, and in the past we have heard

issues not raised in the district court when prompted by exceptional circumstances,’ or

‘whenever the public interest or justice so warrants.’” Appalachian States Low-Level



                                              4
Radioactive Waste Comm’n v. Peña, 126 F.3d 193, 196 (3d Cir. 1997) (citations omitted).

Because Pray’s motion was filed pro se, and “a prisoner’s pro se complaint is held to a

less stringent standard than formal pleadings drafted by lawyers,” United States ex. rel.

Walker v. Fayette County, 599 F.2d 573, 575 (3d Cir. 1979), we will consider this

argument.

                                             C.

       Pray’s motion fails with respect to both the denied petition for writ of mandamus

and the denied habeas corpus petition because he fails to show fraud and

misrepresentation on the court. As the District Court noted the materials Pray uncovers

create at best an unlikely inference the Government may have conducted a Title III

wiretap. In our view, Pray’s arguments are nothing more than speculation. Pray’s

contentions fail because he provides no affirmative evidence a Title III wiretap was

actually sought or conducted. Accordingly, the District Court did not abuse its discretion

in finding Pray failed to show fraud, deception, or misconduct under Rule 60(b)(3).

       Pray also fails to demonstrate the alleged fraud or misconduct prevented him from

fully and fairly presenting his petitions for writ of mandamus and habeas corpus. As the

District Court noted on two separate occasions, the writ of mandamus was obviated

because other legal avenues were available to Pray to obtain the information he sought.6




   6
    The District Court noted Freedom of Information Act requests are still pending and
civil relief may be available for Pray under 18 U.S.C. § 2520.

                                             5
Accordingly, the District Court did not abuse its discretion in denying the Rule 60(b)(3)

motion for relief from denial of the petition for writ of mandamus. Finally, with

reference to Pray’s assertion that the contended activities prevented him from fully and

fairly presenting his habeas corpus petition, Pray presents no evidence that the alleged

cover-up of a Title III wire-tap affected those proceedings.

                                            III.

       For the foregoing reasons, we will affirm the order of the District Court.




                                             6
