The opinion of the court was delivered by: CROAKE
Petitioner, acting pro se, seeks leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915 (1968), with a motion under Rule 60(b) of the Federal Rules of Civil Procedure that this Court set aside its decision of August 12, 1968, and grant petitioner a new trial. This Court in the latter decision rejected, after a trial in June 1968, petitioner's claims that respondent prison authorities had violated his civil rights, as secured under 42 U.S.C. § 1983 (1968), by unjustly and systematically interfering with his legal correspondence in such a manner as to deny him reasonable access to the courts. Secondly, petitioner, as we have construed his rather prolix papers, also now requests leave to proceed in forma pauperis in a new action based on alleged violations of his civil rights perpetrated by respondents subsequent to the trial of June 1968.
Petitioner is presently incarcerated in Attica State Prison serving a sentence of from 10 to 20 years for forgery in the second degree and a concurrent sentence of from 2 1/2 to 10 years for grand larceny in the second degree.
Petitioner previously made application to appeal in forma pauperis from the decision of August 12, 1968. This application was found to be 'frivolous, in bad faith and without merit,' and was denied in accordance with Rule 24(a) of the Federal Rules of Appellate Procedure by the undersigned in an order dated October 16, 1968. Petitioner never appealed from the decision of August 12, 1968.
Since we decided petitioner's original action and are thus familiar with the background of the case, we have accepted a reference from Judge Mansfield of the instant application, rather than have petitioner's motion appear first on the Motion Calendar and then be referred to us.
The Assistant Attorney General in charge of this matter for the New York State Attorney General indicated in a telephone conversation with the law clerk of the undersigned that the State considers the instant application of petitioner to be frivolous and does not intend to answer it. However, since petitioner is appearing pro se, we have considered his papers in as liberal a light as possible so as to determine if there is any possible merit to them.
Leave to proceed in forma pauperis both with the motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and with the new action is granted.
We will proceed to consider both the motion and the allegations raised in the new action.
Petitioner first claims that fraud and misrepresentation were perpetrated on this Court by the respondents prior to and during the trial held in 1968 and, accordingly, he requests this Court under Rule 60(b) of the Federal Rules of Civil Procedure to set aside its decision of August 12, 1968. However, in order for petitioner to sustain the burden of convincing this Court to set aside its prior decision, he must present clear and convincing evidence of the alleged fraud or misrepresentation. Brown v. Pennsylvania R.R., 282 F.2d 522 (3rd Cir. 1960), cert. denied, 365 U.S. 818, 81 S. Ct. 690, 5 L. Ed. 2d 696 (1961). Mere allegations and conclusions are not sufficient.
Petitioner first alleges that he was forced to proceed without the assistance of counsel at the trial. This allegation gives no support to petitioner's Rule 60(b) motion. This matter was disposed of in the Memorandum of August 12, 1968. The record shows that petitioner was represented initially by Legal Aid. He became dissatisfied with Legal Aid representation and chose to have Legal Aid relieved and to proceed pro se. Since petitioner was proceeding pro se, this Court accorded him maximum leeway to state and prove his allegations, and a number of formalities were waived, including a pretrial order. Moreover, Argentine's overall handling of his case prompted this Court to observe in its Memorandum of August 12, 1968, as follows:
In this Court's opinion, plaintiff's presentation did not suffer for want of counsel; he was exceptionally articulate and his cross-examination of the state's witnesses was incisive and telling. In addition, few attorneys achieve the mastery of facts that Argentine demonstrated. P. 4, n. 2.
Petitioner fails to establish any grounds under Rule 60(b) that would cause this Court to set aside its prior decision on this question.
Petitioner further alleges that he was denied the opportunity to raise certain questions of fact and to subpoena certain witnesses at this trial. He further questions this Court's disposition of his allegations of interference with him mail by prison authorities. However, the petitioner has failed to present any evidence that the Court's rulings on these matters were induced by fraud or misrepresentation. This Court will not now serve as an appellate court reviewing its prior findings.
Finally, petitioner makes numerous allegations of violations of his civil rights occurring subsequent to the trial of June 1968. These alleged violations do not relate to petitioner's Rule 60(b) motion and ...