USCA1 Opinion
March 22, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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Nos. 92-1801
92-2292
92-2449
WILFRED HART, JR.,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, 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
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Wilfred Hart, Jr. on brief pro se.
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Jay P. McCloskey, United States Attorney, and Margaret D.
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McGaughey, Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. Petitioner-appellant Wilfred Hart,
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Jr., has filed three appeals arising out of a district court
injunction barring Hart from further repetitive filings
without leave of court. With the exception of a single
matter, we affirm the rulings of the district court in all
three appeals.
Appeal no. 92-1801
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In conjunction with the dismissal of a 2255
petition filed by Hart, the district court, noting Hart's
"frivolous motions and duplicative pleadings which encroach
on the Court's limited time and resources, . . . which can
only be calculated to disrupt the orderly consideration of
cases, . . . and which merely restate claims which have
already made [sic] and which have been denied", entered a sua
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sponte order on February 12, 1992, enjoining Hart from
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further filings in connection with his 1988 drug conviction
without prior leave of court. After Hart filed a motion on
March 10, 1992, objecting that he had not been given notice
and an opportunity to be heard before the injunction issued,
the district court on that same date vacated its injunction
"in order to permit [Hart] to make whatever showing he can."
Hart was directed to file a memorandum of law on the issue
within thirty days.
Over three months later, on June 23, 1992 -- after
Hart had filed nothing further pertaining to the injunction -
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- the district court issued an order reinstating the
injunction, "with slight modifications." The court's order
concluded as follows:
It is hereby ORDERED that
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Wilfred Hart is enjoined from
filing any motions, pleadings
or papers of whatever type or
description in the District of
Maine, in connection with his
1988 conviction for controlled
substance violations without
prior leave of Court. Hart may
seek leave of Court by filing a
summary of the claims he seeks
to raise (not to exceed one
page per claim) together with
an affidavit certifying that
the claims are novel and have
not previously been raised
before this Court or any other
federal court. Upon failure to
so certify or failure to so
certify truthfully, Hart may be
found in contempt of court and
punished accordingly.
Hart filed a timely notice of appeal from this injunction
(appeal no. 92-1801).
We have stated that "[f]ederal courts plainly
possess discretionary powers to regulate the conduct of
abusive litigants." Cok v. Family Court of Rhode Island, 985
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F.2d 32, 34 (1st Cir. 1993). Accordingly, "in extreme
circumstances involving groundless encroachment upon the
limited time and resources of the court and other parties, an
injunction barring a party from filing and processing
frivolous and vexatious lawsuits may be appropriate." Castro
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v. United States, 775 F.2d 399, 408 (1st Cir. 1985). We
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review the issuance of such an injunction for abuse of
discretion. Id.
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In its February 12, 1992 order, the district court
set out a history of abusive, vexatious, and repetitive
litigation which clearly established a need for injunctive
measures. Hart has filed petitions for collateral relief
from his criminal conviction in at least three different
district courts. "In this collateral proceeding alone," the
district court pointed out, "Hart has filed some twenty-seven
separately docketed documents, most of which defy
categorization." In our opinion affirming Hart's conviction,
this court also noted that before conviction, Hart at various
different times had "filed a flood of motions, many pro se,"
"filed fifteen pro se petitions for writs of habeas corpus or
related civil causes of action, all of which were denied,"
filed "a torrent of new pro se motions," and "deluged the
court with at least sixty-six different motions, most of them
pro se." United States v. Hart, 933 F.2d 80, 81-82 (1st Cir.
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1991).
Restrictions on filing "must be tailored to the
specific circumstances presented." Cok, supra, 985 F.2d at
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34. Thus, we have found too sweeping an injunction against
commencing any actions in the district court without prior
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approval, where the record did not show "such widespread
abuse of the judicial system as to warrant such a broad . . .
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prohibition." Id. at 36. In this case, the injunction is
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limited to filings relating to Hart's oft-litigated 1988
federal narcotics conviction. The injunction places no
limits on any other sorts of filings. The record amply
justifies this relatively narrow proscription.
Hart alleges a violation of his due process rights
by virtue of the fact that the injunction was not requested
by the government, but was entered by the court sua sponte.
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Sua sponte entry of such an injunction, however, is improper
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only where the plaintiff is "not warned or otherwise given
notice that filing restrictions were contemplated." Id. at
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35. Here, by contrast, Hart was given ample notice of the
issue and ample opportunity to respond before the court
finalized the injunction on June 23, 1992.
Hart contends that the district court improperly
failed to consider his objections to the injunction,
contained in a motion and accompanying memorandum Hart filed
on March 10, 1992, and wrongly stated in its June 23, 1992
order that he not filed any objections. All that the
district court stated in its June 23, 1992 order, however,
was that Hart had failed to file the additional memorandum of
law the district court had invited him to file in its March
10, 1992 order. In that March 10, 1992 order, the district
court expressly referred to Hart's motion of that same date,
and to Hart's argument in that motion and memorandum that he
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had not been given notice and an opportunity to respond to
the district court's February 12, 1992 order. Clearly the
district court in fact did not ignore or overlook Hart's
motion and memorandum. We can presume that the court did
consider the arguments Hart advanced therein.
Hart also claims that the terms of the injunction
are impermissibly vague. For example, he sees ambiguity in
the requirement that he raise challenges to his 1988
conviction that "have not previously been raised before this
Court or any other federal court." According to Hart, this
formulation leaves it unclear whether claims he raised which
in fact were never adjudicated by the federal court are
covered by the injunction. Although we leave the
construction of the injunction to the district court in the
first instance, we note that a dismissal of a motion or
petition that does not expressly discuss issues raised in the
motion or petition ordinarily would be assumed to dismiss all
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issues that had been raised. We see no vagueness problem in
the district court's injunction. Hart's many other
suggestions of vagueness are all without merit.
Hart further claims that the injunction is based on
the district court's erroneous statement in its initial
February 12, 1992 order that the court by separate order had
"dealt with all pending motions in this matter." Hart
objects that some motions in his original 2255 petition
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remain undecided. Even assuming, arguendo, that Hart were
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correct -- an issue we need not decide here -- such an error
would not detract from the validity of the injunction at
issue.
Appeal no. 92-2292
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After the issuance of the injunction, Hart
submitted papers for filing in the district court on July 20,
July 24, and September 8, 1992. All three submissions were
summarily rejected for filing on the ground that Hart did not
comply with the injunction. Hart filed a timely second
notice of appeal from the third of these rejections.
Hart challenges the district court's rejection of
his proffered filings. Since Hart's submissions were
returned to him without filing, they are not in the record on
appeal. The government, however, states in its brief on
appeal that with each submission Hart did not file the
required accompanying affidavit certifying that the claims
were novel, or the required one-page summary of each claim he
sought to raise. In his filings on appeal, Hart does not
appear to contest this. Consequently, we affirm these
district court orders.
Appeal no. 92-2449
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On October 13, 1992, Hart filed another 2255
petition raising ten claims. The petition gave a one-page
summary of each claim, and was accompanied by an affidavit
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certifying that the claims were novel. On October 20, the
district court clerk sent Hart a letter stating that the
district judge had summarily rejected the petition for filing
on the ground that it violated the injunction.
On October 22, Hart filed an eleventh 2255 claim,
alleging that Hart had not been competent to stand trial in
1988, when he was convicted. In a November 2 order, the
district court stated that Hart had complied with the
injunction's requirements of an affidavit and a one-page
statement regarding this claim, but that the court was "not
satisfied" that the claim was novel. "In any event," the
court concluded, "if [Hart] failed to properly raise the
issue of competence at an earlier proceeding, the issue must
now be deemed waived and incapable of review by this Court."
On November 16, Hart filed a motion for leave to
file a motion requesting that the court explain why Hart's
October 13 filing of ten claims had been rejected for
violation of the injunction. In a December 3 order, the
court denied leave to file, stating that Hart's October 13
filing of ten claims had been rejected because of Hart's
"failure to state claims that were novel and not previously
raised in federal court." Hart followed with his third
notice of appeal.
We affirm the district court's refusal to allow the
filing of Hart's claim that he was not competent to stand
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trial. Hart had raised this same issue at trial. In
response, the trial court had ordered psychological
evaluations to look into Hart's competence, but these
evaluations "could not be completed because of Hart's
intransigence," so "the issue of competency was mooted by the
court". Hart, supra, 933 F.2d at 82. Thus, the district
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court was justified in rejecting the competence claim, either
as frivolous or as not novel for purposes of the injunction.
We also affirm the district court's refusal to
allow the filing of nine of Hart's ten other claims. Three
of these claims -- that the presentence report contained an
incorrect date for Hart's arrest, that the district court
erred in finding that Hart made a threat to intimidate
witnesses, and that drug evidence was materially altered in
the government's possession -- were raised by Hart at trial
or at the sentencing hearing, and disposed of by the district
court. A fourth claim -- that Hart was denied effective
assistance of counsel at trial -- was pressed on Hart's
direct appeal, and "dismissed in perpetuity" by this court.
Id. at 83. The district court properly rejected these four
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claims for filing, under the terms of the district court
injunction, on the ground that they were not novel.
Another five of these ten claims arguably were
raised for the first time, but could properly have been
dismissed in any event as frivolous. Consequently, we affirm
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the district court's rejection of these five claims on that
basis. Helvering v. Gowran, 302 U.S. 238, 245 (1937) (court
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of appeals may affirm on any ground presented by the record).
We shall briefly discuss each of these five claims in turn.
(1) Hart challenges the district court's alleged
reliance in sentencing on a finding that Hart had induced his
own brother to participate in a drug conspiracy. The record
reveals, however, that at the sentencing hearing the district
court noted Hart's denial of such inducement, and made no
further mention of the matter. The record thus shows that
this was not a factor in sentencing.
(2) Hart asserts that his rights were denied at
trial because he was not present at a sidebar bench
conference concerning legal objections to two cocaine
exhibits. The trial transcript, however, shows that Hart did
not object when the sidebar conference was held. During the
conference, Hart's counsel objected to the district court's
ruling as to the two exhibits, but on direct appeal neither
Hart's counsel nor Hart -- who filed a pro se brief on appeal
-- raised the matter.
(3) At the sentencing hearing, the district court
reviewed a photocopy of a letter stating that Hart had saved
a man's life. Hart objects that the district court should
have required the original. The transcript reveals that the
district court reviewed the photocopy -- which Hart himself
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had provided -- only after ascertaining that neither party
objected. Hart does not claim that the photocopy differed
from the original in any way.
(4) Hart objects that in closing argument, the
prosecutor stated that Hart had asserted that he had supplied
merely incense, not cocaine. The trial transcript reveals
that neither Hart nor Hart's counsel objected to this
statement. Hart's counsel and the district court both
summarized Hart's defense the same way. Indeed, so did this
court on direct appeal. Id. at 82.
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(5) During its deliberations the jury sent a note
to the court stating, "May we have any testimony on Count IX
concerning William Christiansen?" The trial judge discussed
the matter in chambers with counsel for both sides. The
court and counsel identified the relevant testimony, agreed
that the court reporter would read that testimony to the jury
in open court, and agreed that the testimony would be read in
the order it came in at trial. This was done. Hart now
asserts that he was not present in open court when this
testimony was read to the jury, and contends that his absence
violated his right under Fed. R. Crim. P. 43(a) to be present
"at every stage of the trial."
The government does not discuss this claim in its
briefs, and thus has not disputed Hart's assertion that he
was not present in open court on this occasion. Even
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assuming, arguendo, that he was not, and that his Rule 43
rights were violated, there was clearly no reasonable
possibility that his exclusion influenced the jury in
reaching its verdict. All that occurred in open court was
that the court reporter read to the jury certain excerpts
from the trial transcript. Hart's counsel already had agreed
to these excerpts, and to the order in which they were read.
There was nothing more that Hart himself plausibly could have
done to protect his rights. Although Hart contended in his
submission that the choice of excerpts was stacked against
him, he has not identified any particular testimony that
should have been included but was not. Nor did Hart raise
this issue on direct appeal, when he filed his own pro se
brief. We conclude that even if we were to apply the strict
harmless error standard for constitutional deprivations, see
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United States v. Maraj, 947 F.2d 520, 526 (1st Cir. 1991)
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(noting that this circuit has left open the question of what
harmless error standard applies in a similar situation), any
error was harmless beyond a reasonable doubt.
This brings us to the tenth and final claim in
Hart's October 13, 1992 filing. In that claim, Hart asserted
that the copy of his presentence report on file with the
Bureau of Prisons does not contain a written record of the
district court's factual resolution of a number of disputed
matters arising out of the presentence report that Hart had
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raised at the sentencing hearing. Hart appended copies of
letters from officials of the Bureau of Prisons which appear
to support his assertion. Hart argued that this state of
affairs violated Fed. R. Crim. P. 32(c)(3)(D), which requires
that after the sentencing court resolves factual disputes
arising out of the presentence report, "[a] written record of
such findings and determinations shall be appended to and
accompany any copy of the presentence investigation report
thereafter made available to the Bureau of Prisons."
In its supplemental brief on appeal, the government
does not appear to contest Hart's allegation that, in the
government's words, "the Bureau of Prisons evidently does not
have in separate written form the findings and determinations
the district court made at sentencing." As a remedy for this
technical violation, the government argues, "the most that
would be required would be for the sentencing court . . . to
reduce to writing the specific findings on the disputed facts
that it made orally on the record at sentencing."
We can only conclude, therefore, that this claim of
a Fed. R. Crim. P. 32(c)(3)(D) violation has not been raised
before and is not so patently insubstantial as to permit
affirmance based on the present record. We accordingly
reverse the district court's refusal to permit the filing of
this single claim. In so ruling, of course, we express no
view of the substantive or procedural validity of this claim.
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We merely direct the district court to accept the claim for
filing.
We remand this claim to the district court with
directions that the district court accept for filing this
single portion of Hart's October 13, 1992 submission and
process this claim in the normal course.
Conclusion
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We have considered all of Hart's other arguments in
all three appeals, and we reject all of them as meritless.
In particular, we affirm the district judge's failure to
recuse himself on the ground that at no time has Hart stated
even a colorable basis for recusal.
Hart's request that the government's supplemental
brief be struck is denied.
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Hart's "Fed. R. App. P. 27(a) motion to modify"
this court's December 8, 1993 supplemental briefing order is
denied.
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The district court's refusal to accept for filing
Hart's October 13, 1992 claim of a Fed. R. Crim. P.
32(c)(3)(D) violation is reversed, and that single claim is
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remanded to the district court for further proceedings
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consistent with this opinion. The district court's rulings
are in all other respects affirmed.
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