
USCA1 Opinion

	




          January 19, 1995                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                  ____________________        No. 94-2245                                MICHAEL KEVIN DUPONT,                                Petitioner, Appellant,                                          v.                                  LARRY E. DUBOISE,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Michael Kevin Dupont on brief pro se.            ____________________                                 ____________________                                 ____________________                      Per  Curiam.    Michael  DuPont  is  appealing  the                      ___________            October  27,  1994, and  November  23,  1994,  orders of  the            district court,  which basically denied his  request that the            court file  an incomplete habeas form on  his behalf as a new            habeas action.  We affirm for the following reasons.                       First,  DuPont  submitted  his  motions  under  the            docket  number of a closed  habeas case.   The district court            correctly  concluded that  DuPont  should file  a new  habeas            action.                       Second, the habeas petition submitted by DuPont did            not  state  what his  grounds for  relief  were or  provide a            statement of  supporting facts in  summary form.   Rather, it            attempted  to incorporate  by reference  his original  habeas            petition  and his  "traverse" from  the closed  case.   Under            those  circumstances,  the district  court  could  reject the            petition as insufficient under Rule 2(c) and could decline to            order  the  clerk to  open a  new  habeas action  on DuPont's            behalf.  See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.                     ___ _____    __________            1990)  (stating that  a  habeas petitioner  must state  facts            showing he is entitled to habeas relief sufficient to "enable            the  court to determine, from the face of the petition alone,            whether the petition  merits further  habeas corpus  review,"            the court affirmed  dismissal of a habeas  petition which did            not describe  the facts  supporting the asserted  grounds for            relief, but  simply referred  the court to  appellate briefs,            transcripts, the record, and other such materials).                      Third,  although DuPont  claims  that state  prison            officials are  withholding his  original  habeas record  from            him,  he  acknowledges that  he has  received  a copy  of his            original  habeas  petition from  the  clerk  of the  district            court.   His  original  petition  sufficiently describes  his            grounds  for habeas relief  and facts  in support  thereof to            permit  him  to  file  a  new  habeas  petition.    From  his            submissions  here and  below,  DuPont appears  to have  ample            access to documents required to support his claim that he has            exhausted his state remedies since filing his original habeas            action.   The district court was not required to send him the            traverse from his original habeas action.                      Fourth, the October 11 order of this court  did not            direct  the district  court to  file a  new habeas  action on            DuPont's behalf.  Nor  did it direct DuPont to seek  an order            compelling prison  officials to return his habeas file to him            by  applying for  such an  order in  a closed  case.   At the            present time, DuPont has the materials he needs to file a new            habeas  action.  If he  does so, and  if it becomes necessary            for DuPont to obtain  his original habeas record in  order to            pursue his  new habeas  action, then  he may  seek injunctive            relief  in the  new action.   Otherwise,  he  may file  a new            action for injunctive  relief in the  district court for  the                                         -3-            sole  purpose  of  obtaining  the allegedly  withheld  habeas            record.1                      Finally,  in view  of the  above, we  deny DuPont's            request that counsel be appointed to represent him.                      Affirmed.                        _________                                            ____________________            1.  We infer  from DuPont's arguments  on appeal that  he may            have sought a motion to compel prison officials to return his            habeas record to him in a civil rights  action he has brought            against  prison officials in DuPont v.  Dubois, D. Mass. Dkt.                                         ______     ______            No. 92-12420.   If so,  his motion  will be acted  on in  due            course.                                         -4-
