Georgacarakos v. United States ( 1995 )

USCA1 Opinion

          November 29, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-1172



                               PETER N. GEORGACARAKOS,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
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            Peter N. Georgacarakos on brief pro se.
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            Jay P. McCloskey,  United States Attorney,  and Michael M. DuBose,
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        Assistant  United   States   Attorney,  on   Memorandum  for   Summary

        Disposition, for appellee.





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                      Per  Curiam.    Appellant  Peter  N.  Georgacarakos
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            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).
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            We do not review the merits of the underlying judgment.  Id.
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                      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
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            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
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            In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987).
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                      Fraud can only have this effect when a party had no



            knowledge of  the alleged misrepresentations at  the time the
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            supposed fraud took  place.  Ojeda-Toro, 853 F.2d at  29.  In
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            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
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            Practice   60.24[5],  at 90 (2d ed.  Supp. 1994-95) (footnote
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            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
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            M/V Peacock, 809 F.2d at 1405.
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                      We therefore  affirm the judgment  of the  district
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            court.  See 1st Cir. R. 27.1.
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