Maurice Jones, Petitioner-appellant, v. Bill R. Story, Warden, Fci, Ashland, Kentucky, Respondent-appellee, 959 F.2d 234 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 959 F.2d 234 (6th Cir. 1992) April 1, 1992

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.* 

ORDER

Maurice Jones, a pro se federal prisoner, appeals the district court's judgment dismissing his motion to reinstate his petition seeking a writ of habeas corpus under 28 U.S.C. § 2241 and a writ of mandamus under 28 U.S.C. § 1346. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Jones filed his original habeas and mandamus petition seeking the restoration of forfeited "street time" credit he accumulated while on parole. A magistrate judge recommended dismissing the case because of Jones's failure to exhaust his administrative remedies. The district court dismissed the case without prejudice because Jones did not file timely objections to the magistrate judge's report and also due to lack of exhaustion.

Seven months later, Jones filed a "motion to reinstate the original writ of habeas corpus." The district court denied the motion due to lack of exhaustion. Jones has filed a timely appeal in which he continues to argue the merits of his claim. He requests leave to proceed in forma pauperis, a transcript at government expense and the appointment of counsel. Both parties have filed briefs.

We construe Jones's motion to reinstate as a motion for relief from judgment filed under Fed. R. Civ. P. 60(b).

Upon review, we conclude the district court did not abuse its discretion in denying Jones's Rule 60(b) motion. See Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016, 1020 (6th Cir. 1983); Bank of Montreal v. Olafsson, 648 F.2d 1078, 1079 (6th Cir.) (per curiam), cert. denied, 454 U.S. 1084 (1981).

Accordingly, Jones's request to proceed as a pauper is granted but his requests for a transcript at government expense and for the appointment of counsel are denied. The judgment of the district court is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation