
USCA1 Opinion

	




          November 29, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 95-1172                                PETER N. GEORGACARAKOS,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Peter N. Georgacarakos on brief pro se.            ______________________            Jay P. McCloskey,  United States Attorney,  and Michael M. DuBose,            ________________                                _________________        Assistant  United   States   Attorney,  on   Memorandum  for   Summary        Disposition, for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant  Peter  N.  Georgacarakos                      ___________            appeals from  the  denial  of  his  motion  for  relief  from            judgment filed under Fed. R. Civ. P. 60(b).                      "[T]he  treatment  of   a  Rule  60(b)   motion  is            committed  to the discretion of the district court and may be            reversed only upon a finding of an abuse of that discretion."            Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir. 1988).            __________    _____________            We do not review the merits of the underlying judgment.  Id.                                                                     ___                      Because  appellant  claims   that  the   government            engaged  in  fraud  in  opposing  his motion  to  vacate  his            sentence,  see  28 U.S.C.    2255,  we  treat the  motion for                       ___            relief  from  judgment  as   having  been  filed  under  Rule            60(b)(3).   This Rule allows such relief  for "fraud (whether            heretofore     denominated    intrinsic     or    extrinsic),            misrepresentation, or other misconduct of  an adverse party."            To prevail under  Rule 60(b)(3), appellant must show that the            alleged  fraud   prevented  him  from   "fully  and   fairly"            presenting his claims  in support of the    2255 motion.  See                                                                      ___            In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987).            _________________                      Fraud can only have this effect when a party had no            knowledge of  the alleged misrepresentations at  the time the                                                         ________________            supposed fraud took  place.  Ojeda-Toro, 853 F.2d at  29.  In            __________________________   __________            support of his  claim that the government  committed fraud by            submitting  the  affidavit   of  appellant's  trial  counsel,            appellant refers to the transcript of his trial.  "Even where            misrepresentations are made during a litigation, it is not an            abuse  of discretion to deny relief to the losing party under            Rule  60(b)(3),  where  the  party  had  access  to  accurate            information."    7  J.  Moore  &  J.  Lucas,  Moore's Federal                                                          _______________            Practice   60.24[5],  at 90 (2d ed.  Supp. 1994-95) (footnote            ________            omitted).    Because  appellant   had  access  to  the  trial            transcript during the  course of the    2255 proceedings,  he            was not prevented from  fully presenting his case.  See In re                                                                ___ _____            M/V Peacock, 809 F.2d at 1405.            ___________                      We therefore  affirm the judgment  of the  district                                    ______            court.  See 1st Cir. R. 27.1.                    ___                                         -3-
