Filed: Aug. 04, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-4-2008 Pray v. Dept of Justice Precedential or Non-Precedential: Non-Precedential Docket No. 05-5462 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Pray v. Dept of Justice" (2008). 2008 Decisions. Paper 734. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/734 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-4-2008 Pray v. Dept of Justice Precedential or Non-Precedential: Non-Precedential Docket No. 05-5462 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Pray v. Dept of Justice" (2008). 2008 Decisions. Paper 734. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/734 This decision is brought to you for free and open access by the Opinions of..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
Pray v. Dept of Justice
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5462
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Pray v. Dept of Justice" (2008). 2008 Decisions. Paper 734.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/734
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5462
WAYNE PRAY,
Appellant
v.
DEPARTMENT OF JUSTICE
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 00-cv-00402
(Honorable John W. Bissell)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 5, 2008
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.
(Filed: August 4, 2008)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Wayne Pray appeals the denial of his Fed. R. Civ. P. 60(b)(3) motion for relief
from an order denying his petition for writ of mandamus. We will affirm.
I.
In 1989, Wayne Pray was convicted of multiple narcotics offenses and sentenced
to life imprisonment.1 Pray pursued a series of unsuccessful direct2 and collateral3 attacks
on his conviction and sentence. In January of 2000, Pray filed a petition for writ of
mandamus under 28 U.S.C. § 1361. He sought to compel the Government to issue a
notice under 18 U.S.C. § 2518(8)(d) informing him he was the subject of a federal
wiretap under the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18
U.S.C. §§ 2510-2522. The District Court denied his petition and this court affirmed.4
Pray then filed a pro se Fed. R. Civ. P. 60(b)(3) motion for relief from the District Court’s
order denying his petition for writ of mandamus. In August 2005, the District Court
denied Pray’s Rule 60(b)(3) motion. Pray now appeals the denial of this motion.5
1
We affirmed Pray’s conviction and sentence. United States v. Pray, 975 F.2d 1552
(3d Cir. 1992).
2
In 1993, Pray filed a motion for reduction of his sentence, which the District Court
denied. In 2005, Pray filed a motion to correct for error in sentencing under Fed. R.
Crim. P. 35(a), which the District Court also denied.
3
In 1997, Pray filed a petition to vacate his sentence under 28 U.S.C. § 2255. The
District Court denied the motion and declined to issue a certificate of appealability on
remand. We denied Pray’s request for en banc review and his motion to recall the
mandate in that proceeding. In 2001, we denied Pray’s requested authorization to file a
successive 28 U.S.C. § 2255 motion.
4
Concurrent with his appeal, Pray filed an untimely motion for reconsideration under
Local Civil Rule 7.1(g), which the District Court denied.
5
The District Court had jurisdiction under 28 U.S.C. § 1361. We have jurisdiction
under 28 U.S.C. § 1291.
2
II.
A.
We review the denial of Rule 60(b) relief for abuse of discretion. Coltec Indus.,
Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). Abuse of discretion may result from
“an errant conclusion of law, an improper application of law to fact, or a clearly
erroneous finding of fact.” McDowell v. Phila. Hous. Auth.,
423 F.3d 233, 238 (3d Cir.
2005). Rule 60(b)(3) allows the court to “relieve a party . . . from a final judgment, order,
or proceeding for . . . fraud, . . . misrepresentation, or other misconduct of an adverse
party.” The movant must show “the adverse party engaged in fraud or other misconduct,
and that this conduct prevented the moving party from fully and fairly presenting his
case.” Stridiron v. Stridiron,
698 F.2d 204, 207 (3d Cir. 1983).
B.
Pray contends the Government engaged in a pattern of misrepresentation and fraud
on the District Court by concealing evidence of a federal wiretap and by generating
fraudulent documents. The Government provides affidavits from Assistant United States
Attorneys and federal agents involved in Pray’s case, disclaiming knowledge of any
wiretap undertaken or applied for by the federal government. Additionally, the
Government provides affidavits stating Pray was not listed as the subject of a wiretap in
any index maintained by the Drug Enforcement Agency, the Federal Bureau of
3
Investigation, the Customs Service, or the Bureau of Alcohol Tobacco, Firearms and
Explosives.
Pray contrasts the Government’s sworn statements with records he obtained
primarily through Freedom of Information Act requests under 5 U.S.C. § 552. These
records reference: (1) consensual wiretaps excluded from Title III’s notice provisions
under 18 U.S.C. § 2511(2)(c), (2) a wiretap undertaken by New Jersey’s Hudson County
Prosecutor’s Office about which Pray had notice, and (3) the contemplation of a Title III
wiretap by federal agencies. Pray concludes these records show the federal government
conducted or applied for a Title III wiretap. Because Pray’s conclusions conflict with the
Government’s affidavits, he argues the Government deliberately concealed the wiretap
through a pattern of fraud and misrepresentation directed at the District Court. Moreover,
he contends this fraud and misrepresentation inhibited his ability to fully and fairly
present his petition for writ of mandamus and his 28 U.S.C. § 2255 habeas corpus
petition.
In the District Court, Pray did not argue the alleged fraud affected his ability to
fully and fairly present his habeas corpus petition. “‘As a general rule, we do not
consider on appeal issues that were not raised before the district court.’ This rule,
however, ‘is one of discretion rather than jurisdiction, and in the past we have heard
issues not raised in the district court when prompted by exceptional circumstances,’ or
‘whenever the public interest or justice so warrants.’” Appalachian States Low-Level
4
Radioactive Waste Comm’n v. Peña, 126 F.3d 193, 196 (3d Cir. 1997) (citations omitted).
Because Pray’s motion was filed pro se, and “a prisoner’s pro se complaint is held to a
less stringent standard than formal pleadings drafted by lawyers,” United States ex. rel.
Walker v. Fayette County,
599 F.2d 573, 575 (3d Cir. 1979), we will consider this
argument.
C.
Pray’s motion fails with respect to both the denied petition for writ of mandamus
and the denied habeas corpus petition because he fails to show fraud and
misrepresentation on the court. As the District Court noted the materials Pray uncovers
create at best an unlikely inference the Government may have conducted a Title III
wiretap. In our view, Pray’s arguments are nothing more than speculation. Pray’s
contentions fail because he provides no affirmative evidence a Title III wiretap was
actually sought or conducted. Accordingly, the District Court did not abuse its discretion
in finding Pray failed to show fraud, deception, or misconduct under Rule 60(b)(3).
Pray also fails to demonstrate the alleged fraud or misconduct prevented him from
fully and fairly presenting his petitions for writ of mandamus and habeas corpus. As the
District Court noted on two separate occasions, the writ of mandamus was obviated
because other legal avenues were available to Pray to obtain the information he sought.6
6
The District Court noted Freedom of Information Act requests are still pending and
civil relief may be available for Pray under 18 U.S.C. § 2520.
5
Accordingly, the District Court did not abuse its discretion in denying the Rule 60(b)(3)
motion for relief from denial of the petition for writ of mandamus. Finally, with
reference to Pray’s assertion that the contended activities prevented him from fully and
fairly presenting his habeas corpus petition, Pray presents no evidence that the alleged
cover-up of a Title III wire-tap affected those proceedings.
III.
For the foregoing reasons, we will affirm the order of the District Court.
6
