USCA1 Opinion

March 22, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

Nos. 92-1801
92-2292
92-2449

WILFRED HART, JR.,

Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
___________________

Wilfred Hart, Jr. on brief pro se.

________________
Jay P. McCloskey, United States Attorney, and
_________________
McGaughey, Assistant United States Attorney, on
_________
appellee.

Margaret D.
___________
brief
for

__________________
__________________

Per Curiam.
___________
Jr.,

Petitioner-appellant

Wilfred Hart,

has filed three appeals arising out of a district court

injunction

barring

Hart

of court.

from

without

leave

matter,

we affirm the rulings

further

With

the

repetitive

filings

exception of

of the district

a single

court in all

three appeals.
Appeal no. 92-1801
__________________
In
petition

conjunction

filed by

with the

Hart, the

"frivolous motions and

dismissal

district court,

of

2255

noting Hart's

duplicative pleadings which

encroach

on the

Court's limited time and

only be
cases,

calculated to
.

. .

resources, . . .

disrupt the orderly

and which

merely

which can

consideration of

restate claims

which have

already made [sic] and which have been denied", entered a sua
___
sponte
______

order

on

further filings

February

12, 1992,

in connection with his

without prior leave of

court.

March 10, 1992, objecting

the district court

Hart

from

1988 drug conviction

After Hart filed a

that he had not been

and an opportunity to be heard

"in

enjoining

motion on

given notice

before the injunction issued,

on that same date vacated

its injunction

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 -

-2-

the

district

court

issued

an

order

injunction, "with slight modifications."

reinstating

the

The court's order

concluded as follows:
It

ORDERED that
_______
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

is

a timely

hereby

notice of appeal

from this

injunction

(appeal no. 92-1801).

We
possess

have

stated

discretionary

abusive litigants."
F.2d 32,

34

(1st

circumstances

that

powers

"[f]ederal
to

courts

regulate the

plainly

conduct

of

Cok v. Family Court of Rhode Island, 985

___
____________________________
Cir. 1993).

involving

Accordingly,

groundless

"in

encroachment

extreme
upon

the

limited time and resources of the court and other parties, an

injunction

barring

party

from

filing

and

processing

frivolous and vexatious lawsuits may be appropriate."

v.

United States, 775

_____________

F.2d 399,

-3-

408 (1st

Castro
______

Cir. 1985).

We

review

the

issuance

discretion.

of such

out

injunction

of

a history

of

1992 order, the district court

abusive,

vexatious, and

litigation which

clearly established

measures.

has filed

from

for abuse

Id.
__

In its February 12,

set

an

Hart

his criminal

district courts.

"In

a need for

petitions for

conviction

in at

repetitive
injunctive

collateral relief

least three

different

this collateral proceeding alone," the

district court pointed out, "Hart has filed some twenty-seven

separately

docketed

categorization."

documents,

most

of

which

defy

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,

filed "a torrent

of new

all of which

pro se motions,"

were denied,"

and "deluged

the

court with at least sixty-six different motions, most of them

pro se."
1991).

United States v. Hart, 933 F.2d 80, 81-82 (1st Cir.

_____________
____

Restrictions
specific circumstances
34.

Thus, we

"must be

presented."

actions in

where the

record

tailored to

Cok, supra,
___ _____

have found too sweeping an

commencing any
___
approval,

on filing

985 F.2d at

injunction against

the district court

did not

the

without prior

show "such

widespread

abuse of the judicial system as to warrant such a broad . . .

-4-

prohibition."
limited to
federal
limits

Id. at 36.
__

filings

narcotics
on

In this case,

relating to

Hart's

conviction.

any other

sorts of

The

the injunction is
oft-litigated

injunction

filings.

The

1988

places no

record amply

justifies this relatively narrow proscription.

Hart alleges a violation
by virtue of the

fact that the injunction was

by the government, but

Sua sponte
__________

of his due process rights

not requested

was entered by the court sua sponte.

__________

entry of such an injunction, however, is improper

only where the

plaintiff is "not

warned or otherwise

given

notice that
35.

filing restrictions were contemplated."

Here, by contrast,

issue

and

Hart was given ample

ample opportunity

to

respond

Id. at
__

notice of the

before the

court

finalized the injunction on June 23, 1992.

Hart
failed

to

contends that

consider

contained in a motion
on March 10, 1992,
order

that

district

he

his

the district
objections

to

court improperly
the

injunction,

and accompanying memorandum Hart filed

and wrongly stated

not filed

court stated in

any

in its June 23,

objections.

its June 23,

All that

1992
the

1992 order, however,

was that Hart had failed to file the additional memorandum of

law the district

court had invited him to file

10,

In that

1992 order.

in its March

March 10, 1992 order, the district

court expressly referred to Hart's motion of that

and

same date,

to Hart's argument in that motion and memorandum that he

-5-

had

not been given notice

and an opportunity

the

district court's February

12, 1992 order.

to respond to
Clearly the

district

court in

fact did

motion and memorandum.

not ignore

We

or overlook

can presume that

Hart's

the court

did

consider the arguments Hart advanced therein.

Hart also

claims that the terms

are

impermissibly vague.

the

requirement

that

For

he

conviction that "have not

Court or any other

example, he sees ambiguity in

raise

fact were

covered

by

federal court."

never
the

instance,

to

According to

his

1988

adjudicated by

the

federal court

Although

we

injunction to the district

we note

Hart, this

whether claims he raised which

injunction.

construction of the
first

challenges

previously been raised before this

formulation leaves it unclear

in

of the injunction

that a

dismissal

are

leave

the

court in the

of a

motion or

petition that does not expressly discuss issues raised in the

motion or petition ordinarily would be assumed to dismiss all
___
issues that had been raised.
the

district

court's

We see no vagueness problem

injunction.

Hart's

many

in

other

suggestions of vagueness are all without merit.

Hart further claims that the injunction is based on
the

district

February

court's

erroneous

statement in

its

initial

12, 1992 order that the court by separate order had

"dealt with
objects that

all

pending

some motions

motions

in this

matter."

in his

original

2255

-6-

Hart
petition

remain undecided.
correct -would

Even

assuming, arguendo, that

________

Hart were

an issue we need not decide here -- such an error

not detract

from the

validity of

the injunction

at

issue.
Appeal no. 92-2292
__________________
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

timely second

notice of appeal from the third of these rejections.

Hart challenges
his

proffered

the district court's

filings.

Since

Hart's

rejection of

submissions

were

returned to him without filing, they are not in the record on

appeal.

The

appeal that
required

government,
with

each

however, states

submission Hart

accompanying affidavit

in its

did

not

certifying that

brief on
file

the

the claims

were novel, or the required one-page summary of each claim he

sought to raise.
appear

to

contest

In

his filings on
this.

district court orders.

appeal, Hart does

Consequently,

we

affirm

not
these

Appeal no. 92-2449

__________________
On

October 13,

1992,

petition raising

ten claims.

summary of each

claim, and was

Hart filed

another

The petition gave

2255

a one-page

accompanied by an

affidavit

-7-

certifying
district

that the claims were

court clerk

novel.

sent Hart

On

October 20, the

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
alleging that Hart had
1988, when
district

he was
court

not been competent to stand

convicted.

stated

that

injunction's requirements

of

statement regarding this claim,

satisfied" that the
court

concluded, "if

2255 claim,

In
Hart

a November
had

2 order,

complied

an affidavit

with

the
the

one-page

but that the court

was "not

claim was

novel.

[Hart]

failed to

"In

and

trial in

any event,"

the

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
file a motion
October

13

violation

requesting that the

filing

of the

of

of ten

in

a motion for

claims

had been

In a

been

Hart's

rejected

December 3

for

order, the

that Hart's October

rejected because

claims that were novel

federal court."

leave to

court explain why

to file, stating

claims had

"failure to state
raised

ten

injunction.

court denied leave

filing

16, Hart filed

13

of Hart's

and not previously

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

-8-

trial.

Hart

response,

had

the

evaluations

trial

to

evaluations

raised this

look

"could

court
into
not

same
had

Hart's
be

issue

at trial.

ordered

psychological

competence,

completed

In

but

these

of

Hart's

because

intransigence," so "the issue of competency was mooted by the

court".

Hart,
____

supra, 933 F.2d

_____

at 82.

Thus, the

district

court was justified in rejecting the competence claim, either

as frivolous or as not novel for purposes of the injunction.
We also

affirm

allow the filing of

of these claims
incorrect
erred

the

court's

nine of Hart's ten other

in finding

Hart's arrest,
that

Hart

made

refusal

claims.

-- that the presentence report

date for

witnesses, and

the district

to

Three

contained an

that the

district court

a threat

to

that drug evidence was

intimidate

materially altered in

government's possession -- were raised

by Hart at trial

or at the sentencing hearing, and disposed of by the district

court.

assistance

fourth claim
of counsel

direct appeal,
Id. at 83.
__
claims

-- that
at

Hart was

trial --

was

denied effective
pressed on

and "dismissed in perpetuity"

by this court.

The district court properly rejected

for filing,

under the

terms of

Hart's

these four

the district

court

injunction, on the ground that they were not novel.

Another five
raised

for the

first

of

these ten

time, but

could

dismissed in any event as frivolous.

-9-

claims

arguably

were

properly have

been

Consequently, we affirm

the district court's rejection

basis.

of these five claims

on that

Helvering v. Gowran, 302 U.S. 238, 245 (1937) (court

_________
______

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

further

denial of

such inducement, and

mention of the matter.

The record

made no

thus shows that

this was not a factor in sentencing.

(2)
trial

because

conference
exhibits.
not

Hart asserts that

he

was

concerning

not

his rights were

present

legal

at

objections

denied at

sidebar
to

two

bench
cocaine

The trial transcript, however, shows that Hart did

object when the sidebar conference was held.

conference, Hart's
ruling as to the

counsel objected to

During the

the district court's

two exhibits, but on direct

appeal neither

Hart's counsel nor Hart -- who filed a pro se brief on appeal

-- raised the matter.
(3)
reviewed
a

At the

sentencing hearing, the district court

a photocopy of a letter stating that Hart had saved

man's life.

Hart

objects that the

have required the original.

district court

district court should

The transcript reveals

reviewed the photocopy --

that the

which Hart himself

-10-

had provided
objected.

-- only

after ascertaining that

Hart does

not claim that

neither party

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,
that

neither

statement.
summarized

not cocaine.
Hart

nor

Hart's

The trial

Hart's

counsel

counsel

and the

(5)

objected

district

Hart's defense the same way.

court on direct appeal.

transcript reveals

court

both

Id. at 82.
__

During its deliberations the jury sent a note

concerning William Christiansen?"

matter in

this

Indeed, so did this

to the court stating, "May we have any testimony

the

to

chambers with

court and counsel

on Count IX

The trial judge discussed

counsel for

both sides.

identified the relevant testimony,

The
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

asserts

came in at

that

he was

trial.

This was done.

not present

in

Hart now

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
briefs, and
was

not

does not discuss this

thus has not

present

claim in its

disputed Hart's assertion

in open

court

on

this

that he

occasion.

Even

-11-

assuming, arguendo, that

rights

were

possibility

violated,
that

his

reaching

its verdict.

that the

court reporter

he was
there

not, and that

was

exclusion
All

from the trial transcript.

clearly

no

influenced

the

that occurred in

read to

his Rule

the jury

43

reasonable
jury

in

open court was

certain excerpts

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
submission that

rights.

the choice

Although Hart contended

of excerpts was

in his

stacked against

him,

he has

should have
this

not

been included but

issue on

brief.

identified any

particular testimony

was not.

direct appeal, when

Nor

that

did Hart raise

he filed his

own pro se

We conclude that even if we were to apply the strict

harmless error standard

United States v.
_____________
(noting

for constitutional deprivations, see

___

Maraj, 947
_____

F.2d 520, 526

(1st Cir.

1991)

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

Hart's October 13, 1992 filing.

that

the copy

Bureau

of his

matters

on file

contain a written

factual resolution of a

arising out of the

and final

claim in

In that claim, Hart asserted

presentence report

of Prisons does not

district court's

tenth

with the

record of the

number of disputed

presentence report that Hart had

-12-

raised at the
letters

sentencing hearing.

Hart appended copies

of

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

accompany any copy

determinations shall
of the

be appended

to and

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."
technical violation, the

As a remedy for this

government argues,

"the most

would be required would be for the sentencing court .

that
. . 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

affirmance

not so

based

patently insubstantial

on the

present

reverse the district court's refusal

this single

claim.

In so

record.

as to
We

permit

accordingly

to permit the filing of

ruling, of course,

we express no

view of the substantive or procedural validity of this claim.

-13-

We merely direct the

district court to accept the

claim for

filing.
We
directions
single

remand this
that the

portion of

claim to

the district

court with

accept for

filing this

district court
Hart's

October 13,

1992 submission

and

process this claim in the normal course.

Conclusion
__________
We have considered all of Hart's other arguments in
all
In

three appeals, and we

particular, we

affirm

reject all of
the district

them as meritless.
judge's failure

recuse himself on the ground that at no time

to

has Hart stated

even a colorable basis for recusal.

Hart's request that

the government's

supplemental

brief be struck is denied.

______
Hart's

"Fed. R.

this court's December 8,

App. P.

27(a) motion

to modify"

1993 supplemental briefing order is

denied.
______
The district court's refusal
Hart's

October

13,

32(c)(3)(D) violation

1992

claim

of

to accept for
a

Fed.

is reversed, and that

R.

filing

Crim.

P.

single claim is

________
remanded
________

to

the

consistent with

district

court

this opinion.

The

are in all other respects affirmed.

________

-14-

for

further

proceedings

district court's rulings