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WORD v. UNITED STATES

October 3, 1985

JERRY WORD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: POLLACK

DECISION

POLLACK, Senior District Judge:

 Jerry Word, pro se, moves this Court, under Federal Rule of Civil Procedure 60(b), to reconsider its previous decision denying Word's motion to vacate and set aside his sentences under 28 U.S.C. § 2255 (1982). For the reasons stated in this Court's prior opinion, as amplified below, Word's motion for reconsideration is denied.

 The facts underlying this motion are set forth in greater detail in this Court's prior opinion, dated August 27, 1985, and familiarity with them is assumed. The relevant facts will be summarized only briefly below.

 On December 1, 1982, a jury found Word guilty of both one count of conspiracy to possess heroin with intent to distribute and one count of attempted possession of one kilogram of heroin with intent to distribute, both prohibited by 21 U.S.C. § 846 (1982). This Court sentenced Word to concurrent fifteen-year prison terms on each count, a $50,000 fine on each count, and ten years of special parole on the attempt count. In an unpublished opinion, the Second Circuit affirmed the conviction. United States v. Word, No. 83-1009 (2d Cir. May 20, 1983).

 The grand jury indictment upon which the conviction was based was a superseding indictment, filed November 4, 1982. It was identical to the initial indictment, filed September 16, 1982, regarding the attempted possession charge. Regarding the conspiracy charge, however, the superseding indictment expanded the scope of the conspiracy by specifying ten rather than seven overt acts and by enlarging the time frame from slightly more that one month to slightly more than one year and four months. Trial on the superseding indictment began on November 29, 1982. Based on Word's September 8, 1982 affidavit professing financial inability to retain counsel, counsel was promptly appointed to represent Word throughout these proceedings.

 On August 27, 1985, this Court denied Word's most recent pro se § 2255 motion. This Court first rejected Word's claim that its refusal to allow a three week continuance on the eve of trial so that Word could change counsel violated his Sixth Amendment right to effective assistance of counsel, on the grounds that the claim had been raised and rejected by the Second Circuit on direct appeal.

 Next, this Court rejected, on several independent grounds, Word's claim that commencing the trial within thirty days of the superseding indictment violated the Speedy Trial Act, particularly 18 U.S.C. § 3161(c)(2) (1982). First, this Court held that Word waived his claim by not raising it at trial, especially since Word argued at trial that the Government took too long in bringing him to trial, allegedly in violation of 18 U.S.C. § 3161(c)(1) (1982). Even if not waived, this Court held, second, that the thirty day limit in § 3161(c)(2) is not inflexible. The twenty-five days Word's counsel had to prepare, between the time of the superseding indictment and trial, was sufficient given that the superseding indictment realleged the same conspiracy, albeit with an expanded time frame and three additional overt acts, and given that Word's capable and experienced defense lawyer never requested additional time to research or prepare. Even if this conspiracy count is defective, however, this Court held, third, that the attempted possession count, realleged in the superseding indictment in its entirety without any additions, still stands. thus, even if the sentence for conspiracy would have to be vacated, the conviction, the concurrent fifteen-year prison sentence, and the ten years of special parole on the attempt count would still remain.

 Finally, this Court rejected Word's claim that the superseding indictment is defective since not considered by the full grand jury. Although recognizing a substantial question concerning Word's waiver of this claim by not raising it at trial or on direct appeal, this Court held that Word's claim was insufficient to raise a genuine factual issue because of his failure to present any facts supporting his claim, let alone a sworn affidavit of anyone, including himself, purporting to have knowledge of those proceedings. In addition, the Assistant United States Attorney submitted a sworn affidavit stating that the grand jury's foreman and secretary signed an entry in the grand jury records, attesting that twenty-two grand jurors voted a true bill on the superseding indictment on November 4, 1982.

 This motion for reconsideration was received by the Pro Se Clerk's Office in the Southern District of New York on September 13, 1985. Word's affidavit in support of his motion was subscribed and sworn before the notary on September 6, 1985. The judgment being challenged was entered on August 27, 1985. *fn1"

 DISCUSSION

 A motion filed within ten days of the entry of judgment questioning the correctness of this Court's prior decision should be construed as a motion for reconsideration under Federal Rule of Civil Procedure 59(e), regardless of its characterization as a Rule 60(b) motion. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982); see Browder v. Director, Department of Corrections, 434 U.S. 257, 261, 54 L. Ed. 2d 521, 98 S. Ct. 556 n.5 (1978) (habeas corpus case). Construing Word's motion as a Rule 59(e) motion will preserve his right to appeal the merits of his claims, if notice of appeal is timely filed from this decision. See Rule 11, 28 U.S.C. foll. § 2255; Fed.R.App.P. 4(a); see generally United States v. Whitford, 758 F.2d 329 (8th Cir. 1985) (discussing time limits for appeal in a § 2255 case). Appellate review of Rule 60(b) motions is governed by an abuse of discretion standard and, therefore, the correctness of the underlying judgment may not be reached. Browder, 434 U.S. at 263 & n.7; Nestle Co. v. Chester's Market, Inc., 756 F.2d 280, 282 (2d Cir. 1985).

 Word's motion for reconsideration is denied for the reasons stated in this Court's prior opinion, dated August 27, 1985. ONly two points raised by Word merit further discussion.

 First, Word argues that this Court incorrectly denied his claim challenging the superseding grand jury indictment without first granting an evidentiary hearing. See Rule 8, 28 U.S.C. foll. § 2255 (1982). When there is an inconclusive factual record, he continues, the court may not deny a § 2255 motion solely on the basis of government affidavits without first conducting an evidentiary hearing. To search for facts supporting his claim, Word requests that the grand jury minutes be produced, *fn2" at public expense, ...


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