DuPont v. DuBoise

USCA1 Opinion

          January 19, 1995
                                [NOT FOR PUBLICATION]
                           UNITED STATES COURT OF APPEALS 
                                FOR THE FIRST CIRCUIT 




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        No. 94-2245

                                MICHAEL KEVIN DUPONT,

                                Petitioner, Appellant,

                                          v.

                                  LARRY E. DUBOISE,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Michael Kevin Dupont on brief pro se.
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                      Per  Curiam.    Michael  DuPont  is  appealing  the
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            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.
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            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



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            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.
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            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.
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            No. 92-12420.   If so,  his motion  will be acted  on in  due
            course.

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