Guilmette v. O'Neill et al

Filing 165

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. Plaintiff's Motion to Refile to Identify Portions of Transcript Pertinent to Appeal (Docket No. 164) is DENIED. 2. The Clerk shall transmit this Memorandum and Order to the First Circuit.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KENNETH GUILMETTE,
Plaintiff,
v.
BRIAN O'NEILL, ET AL.,
Defendants.

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C.A. No. 09-11328-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

September 10, 2014

On January 24, 2014, the United States Court of Appeals for
the First Circuit (the "First Circuit") entered an Order denying
Plaintiff Kenneth Guilmette's motion to proceed in forma pauperis
and for transcripts at government expense.

See Guilmette v.

O'Neill, et al., No. 13-2510 (1st Cir. Jan. 24, 2014).
On February 3, 2014, pursuant to the First Circuit's order,
Guilmette filed in this court a Motion for Appeal for These Filing
Fees & Transcript Costs. Guilmette explained that he was indigent,
fully disabled, and could not afford the costs of appeal. See Mot.
for Appeal for Filing Fees App'x 1 at 1.

In support of his request

for free transcripts, he made several factual allegations in
support of his argument that his counsel had rendered ineffective
assistance and that the court had acted in ways that prejudiced him
at trial.

See id. at 2-3; id. App'x 2 at 1.

The court allowed the motion with respect to Guilmette's
request to proceed in forma pauperis, but denied the motion with
respect to Guilmette's request for free transcripts.

See May 2,

2014 Memo. & Order at 2.

The court concluded that although

Guilmette had shown an inability to pay the filing fees for appeal,
his

factual

allegations

were

did

not

present

a

"substantial

question" that would entitle him to free transcripts for his appeal
under 28 U.S.C. §753(f). See id. at 5 (quoting 28 U.S.C. §753(f)).
In other words, the court found that "none of the issues that he
raise[d] present questions of law that are reasonably debatable
when judged on an objective basis."

Id. at 4 (citing Eldaghar v.

City of N.Y. Dep't of Citywide Admin. Servs., C.A. No. 01-9151-KMW,
2009 WL 1730977, at *1 (S.D.N.Y. June 18, 2009)).

The court also

noted that Guilmette had failed to "identify[] what portions of the
transcript of the five-day trial would be pertinent to his appeal."
Id. at 5.
ruling

Finally, the court noted that Guilmette could seek a

directly

from

the

First

Circuit

regarding

required any transcript to decide his appeal.

whether

it

See id.

On May 16, 2014, Guilmette filed a Motion to Refile to
Identify Portions of Transcript Pertinent to Appeal, in which he
requested that the court reconsider its earlier denial of his
request for free transcripts.

In support of the motion for

reconsideration, he identifies four specific issues that were not
mentioned in his initial motion: (1) ineffective assistance due to
his counsel's failure to call Dr. Frank Graf as an expert witness
on the issues of causation, injury, disability, and damages; (2)
ineffective assistance due to his counsel's decision to call Frank

2

Santin as an expert witness on the issue of excessive force,
despite the fact that Santin had previously admitted to lying on
the stand in a criminal case and that counsel had been told about
this issue of credibility; (3) the judge's alleged comment, in the
presence of the jury, comparing Guilmette to Stephen Flemmi, a
notorious criminal1; (4) the judge's decision to move Guilmette to
the back of the courtroom, where he could not "hear w/ any clarity
important trial testimony."

Mot. to Refile at 2-4.

"Ruling on a motion for reconsideration requires a court to
'balance the need for finality against the duty to render just
decisions.'" Galanis v. Szulik, 863 F. Supp. 2d 123, 124 (D. Mass.
2012) (quoting Davis v. Lehane, 89 F. Supp. 2d 142, 147 (D. Mass.
2000)).

To obtain relief on a motion for reconsideration, the

movant must demonstrate that: (1) newly discovered evidence that
was not previously available has come to light; (2) there has been
an intervening change in the law; or (3) the earlier decision was
based on a manifest error of law or was clearly unjust.
v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

See Palmer

The granting

of a motion for reconsideration is "an extraordinary remedy which
should be used sparingly."

Id.

Guilmette does not assert that there has been any intervening

1

The court does not believe that any such comment was made,
particularly in the presence of the jury. However, the
transcript would have to be prepared to confirm or clarify this
authoritatively.
3

change in the law, nor has he identified any manifest errors of law
or claimed that the decision was unjust.
included

in

the

motion

do

not

The specific allegations

constitute

"newly

discovered

evidence," as Guilmette does not assert that this information was
not previously available.

Id.

Therefore, Guilmette has not

provided a proper basis for reconsideration.
In view of the foregoing, it is hereby ORDERED that:
1.

Plaintiff's Motion to Refile to Identify Portions of

Transcript Pertinent to Appeal (Docket No. 164) is DENIED.
2.

The Clerk shall transmit this Memorandum and Order to the

First Circuit.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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