Georgacarakos v. United States, 1st Cir. (1995)
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Scribd Government DocsGeorgacarakos v. United States, 1st Cir. (1995)
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Scribd Government DocsUSCA1 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[NOT FOR PUBLICATION]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,
________________
Assistant
United
United States Attorney,
States
Disposition, for appellee.
Attorney,
on
and Michael M. DuBo
_______________
Memorandum
for
Summ
____________________
____________________
Per Curiam.
___________
appeals from
the
denial
Appellant
of
his
Peter
N.
motion
for
Georgacarakos
relief
from
judgment filed under Fed. R. Civ. P. 60(b).
"[T]he
committed
treatment
of
Rule
60(b)
motion
is
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.
Because
engaged
in
sentence,
relief
fraud
see
___
from
60(b)(3).
heretofore
appellant
in
opposing
28 U.S.C.
judgment
claims
as
that
his motion
2255,
having
we
intrinsic
to
treat the
been
This Rule allows such relief
denominated
the
filed
Id.
___
government
vacate
his
motion for
under
Rule
for "fraud (whether
or
extrinsic),
misrepresentation, or other misconduct of
To prevail under
alleged
fraud
an adverse party."
Rule 60(b)(3), appellant must show that the
prevented
presenting his claims
him
from
"fully
in support of the
and
fairly"
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.
__________________________
support of his
submitting
the
Ojeda-Toro, 853 F.2d at
__________
claim that the government
affidavit
of
29.
In
committed fraud by
appellant's
trial
appellant refers to the transcript of his trial.
counsel,
"Even where
misrepresentations are made during a litigation, it is not an
abuse
Rule
of discretion to deny relief to the losing party under
60(b)(3),
information."
Practice
________
omitted).
where
the
Moore
60.24[5],
Because
J.
party
&
had
J.
at 90 (2d ed.
appellant
had
access
Lucas,
to
accurate
Moore's Federal
_______________
Supp. 1994-95) (footnote
access
to
the
trial
transcript during the
was not prevented from
course of the
2255 proceedings,
fully presenting his case.
he
See In re
___ _____
M/V Peacock, 809 F.2d at 1405.
___________
We therefore
court.
affirm the judgment
______
See 1st Cir. R. 27.1.
___
of the
district
-3-
