William A. Reinke, Petitioner-appellant, v. United States of America, Respondent-appellee, 990 F.2d 1259 (9th Cir. 1993)

MEMORANDUM^** 

William A. Reinke appeals pro se the district court's denial of his motion for reconsideration. The district court held, inter alia, that Reinke's fourth pro se motion pursuant to 28 U.S.C. § 2255 was "successive in that he is seeking relief identical to that requested in not merely one, but two earlier motions." We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

On 24 February 1986, the United States Attorney for the Central District of California filed an information against Reinke alleging two counts of mail fraud in violation of 18 U.S.C. § 1341. The information alleged that Reinke was employed by the Northrop Corporation (Northrop) as an engineering specialist. Reinke's alleged responsibilities included the design and development of equipment used in the United States Air Force Stealth Program. Reinke was alleged to have formed his own company called "RF Engineering, Inc." Reinke allegedly caused Northrop to issue subcontracts to RF Engineering. Pursuant to those contracts, RF Engineering allegedly supplied products to Northrop at inflated prices.

On 19 March 1986, Reinke, with the assistance of counsel, pleaded guilty to both counts of the information. On 11 August 1986, Reinke was sentenced to five years of incarceration on count one and five years of supervised release on count two and ordered to pay $144,000 in restitution. Reinke surrendered to the custody of the Attorney General in September 1986.

On 8 December 1986, while still represented by counsel, Reinke filed a motion pursuant to Federal Rule of Criminal Procedure 35 for reduction and modification of his sentence. Reinke sought a reduction of the period of his incarceration and the deletion of the restitution order. On 23 July 1987, the district court granted Reinke's motion in part and reduced his term of incarceration to two years. On 2 December 1988, the district court deleted the restitution order portion of Reinke's sentence.

Meanwhile, Reinke filed his first of five pro se motions pursuant to 28 U.S.C. § 2255.¹  On 31 July 1987, Reinke filed his first post-conviction motion in the Central District of California in the form of an amended motion pursuant to section 2255.²  Reinke listed eight grounds for relief. The district court categorized the grounds into five separate attacks on the legality of his sentence: (1) Reinke's right to allocution was frustrated because he was not allowed to present information before the court; (2) the United States Air Force intimidated defense counsel thereby impinging on Reinke's sixth amendment right to counsel; (3) the government threatened Reinke; (4) the district court engaged in "self-dealing" by considering the public's perception of the case rather than justice; and (5) the government failed to show a loss on the part of the victim, a prerequisite for a valid conviction for mail fraud under 18 U.S.C. § 1341.

On 2 September 1987, Reinke filed his second pro se post-conviction motion in the Central District of California in the form of a motion pursuant to section 2255.³  Reinke's second section 2255 motion appears to have been identical to his first section 2255 motion. On 27 October 1987, the district court filed an order summarily dismissing Reinke's second section 2255 motion.

On 9 November 1987, the district court entered an order denying on the merits Reinke's first section 2255 motion. The district court determined that the district court record contained no factual foundation for Reinke's first, second, third, or fourth grounds for relief. On the fifth ground, the district court found that " [t]he evidence presented both at trial and at defendant's sentencing indicate that the government satisfied its burden with respect to the factual element necessary under 18 U.S.C. § 1341."

On 23 March 1990, following oral argument, this court affirmed the district court's order denying Reinke's section 2255 motions.⁴  Reinke v. United States, No. 87-6688, unpublished memorandum disposition (9th Cir. Mar. 23, 1990). On Reinke's first four claims, this court found "no support in the record" for these claims and affirmed the district court's judgment. Id. at 4. On the fifth ground, this court found that "the information, guilty plea, and Reinke's own written and oral statements" provided "a sufficient factual basis for the sentence." Id. at 7.

On 11 July 1990, Reinke filed his third pro se post-conviction motion in the Central District of California in the form of a motion pursuant to section 2255.⁵  Reinke argued that his guilty plea was defective because of the following issues relating to the restitution order: (1) he was not advised that restitution was a possible consequence of his plea; (2) although the court later deleted the restitution order from his sentence, the order was pending for three years and caused injury to him during that time; (3) the restitution order erroneously directed defendant to pay restitution to "the government"; (4) Reinke allegedly settled his civil action with Northrop without being required to pay damages, which according to Reinke demonstrated that Northrop was entitled to no restitution; and (5) at one point during a sentencing hearing, the court remarked that it did not know the law on a particular point. In addition, Reinke argued, once again, that his conviction was flawed because the court lacked a factual basis for finding that he overcharged Northrop.

In a written order dated 11 September 1990, the district court denied Reinke's third section 2255 motion finding that, "as a matter of law, the error [Reinke] claims does not constitute a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair practice."

On 15 October 1990, Reinke filed a motion for reconsideration of the court's 11 September 1990 order. Reinke reiterated his original arguments and argued that the case relied on by the government was decided after his sentencing date and, therefore, inapplicable. In a written order dated 5 December 1990, the district court denied Reinke's motion for reconsideration.⁶ 

On 28 January 1991, Reinke filed his fourth pro se post-conviction motion in the Central District of California in the form of a motion pursuant to 28 U.S.C. § 2255.⁷  Reinke claimed that (1) he was prevented from presenting exculpatory classified information; (2) the United States Air Force violated his constitutional rights by threatening him; and (3) the district court mishandled certain classified documents. Reinke also requested the appointment of counsel and time for discovery.

On 17 April 1991, the district court found Reinke's claims were successive. The district court also determined "that no manifest injustice would result from denying Reinke's request to revisit [these] same issues now." The district court denied Reinke's request for counsel and time for discovery.

On 16 May 1991, Reinke filed a motion for reconsideration of the court's 17 April 1991 order. Reinke merely reiterated his original arguments. In a written order filed on 21 June 1991, the district court denied Reinke's motion for reconsideration. The district court warned Reinke that " [t]he filing of any further motions that allege claims substantially similar to those under review here will subject Mr. Reinke to sanctions."⁸ 

A motion for reconsideration filed more than 10 days after a district court's judgment can be construed as a Fed. R. Civ. P. 60(b) motion. Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986). Such motions are reviewable only for abuse of discretion, and not for the claimed error in the underlying judgment. Id.

The district court denied Reinke's section 2255 petition on 17 April 1991. Reinke filed his motion for reconsideration on 16 May 1991. Thus, Reinke's motion for reconsideration was filed more than 10 days after the district court denied his 28 U.S.C. § 2255 motion. Therefore, we construe Reinke's motion as a Rule 60(b) motion for reconsideration. See id.

Rule 60(b) states that upon a motion, the court may relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief from operation of the judgment. Fed. R. Civ. P. 60(b).

Nevertheless, Reinke continues to argue the merits of the underlying section 2255 motion. Insofar as Reinke's arguments can be construed under Rule 60(b), we affirm the district court's denial of Reinke's motion for reconsideration.

Sentencing courts "shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." 28 U.S.C. § 2255. A prior adverse determination of a ground presented in an earlier motion is controlling where the ends of justice would not be served by reaching the merits of the subsequent motion. Sanders v. United States, 373 U.S. 1, 16-17 (1963); Molina v. Rison, 886 F.2d 1124, 1127 (9th Cir. 1989).

With regard to Reinke's claims that he was prevented from presenting exculpatory classified information and that the United States Air Force violated his constitutional rights by threatening him, we note that this court has already determined that there is "no support in the record for [these] claims." Reinke v. United States, No. 87-6688, unpublished memorandum disposition at 4 (9th Cir. Mar. 23, 1990).

With respect to Reinke's claim that the district court mishandled classified documents, we agree with the district court's conclusion that this claim is merely another variation on Reinke's original claim that the court failed to consider exculpatory evidence. To the extent this argument attacks the district court's denial of Reinke's request to use classified information, we find that it is a successive ground. See Molina, 886 F.2d at 1129 (despite the similarity or differences in the factual context of the claim, a ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments).

We note that the district court granted Reinke's Fed. R. Crim. P. 35 motion and that this is Reinke's fourth section 2255 motion to be considered by the sentencing court. We, therefore, find that no manifest injustice would result from denying Reinke's fourth request to examine his claims. See Sanders, 373 U.S. at 16-17; Pollizi v. United States, 550 F.2d 1133, 1135-36 (9th Cir. 1976) (a district court may refuse to entertain a repetitive petition absent a showing of manifest injustice).

With regard to Reinke's request for the appointment of counsel, we note that the sixth amendment right to counsel does not apply to habeas corpus proceedings and the court need not appoint counsel for an indigent petitioner when an evidentiary hearing is not required. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). In the instant case, an evidentiary hearing was not required because Reinke's claims were based on facts contained in the record, pleadings, and files. See United States v. Boniface, 601 F.2d 390, 392 (9th Cir. 1979). Because Reinke's claims were based on facts contained in the record, pleadings, and files, the district court's denial of Reinke's discovery request was appropriate. See Rule 6(a), Rules Governing Section 2255 Proceedings.

Accordingly, the district court did not abuse its discretion in denying Reinke's motion for reconsideration.⁹ 

AFFIRMED.