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843 F2d 1393 Willis v. Gluch

843 F.2d 1393

David WILLIS, Petitioner-Appellant,
v.
John GLUCH, Respondent-Appellee.

No. 87-1890.

United States Court of Appeals, Sixth Circuit.

April 1, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KEITH, BOYCE F. MARTIN Jr., and DAVID A. NELSON, Circuit Judges.

ORDER

1

This pro se federal prisoner appeals the district court's judgment denying his motion to vacate the judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2241. The matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

In his motion to vacate filed under Fed.R.Civ.P. 60(b), petitioner alleged that the Parole Commission computed his presumptive release date using calculations which included container weights of drugs he was carrying at the time of his arrest. Petitioner also challenged the Commission's characterization of dilaudid as an opiate equivalent.

3

The district court determined that these claims were known to petitioner at the time he filed his petition and, therefore, did not constitute newly discovered evidence under Fed.R.Civ.P. 60(b). The district court also determined that additional factors, which were not challenged by petitioner, also provided a basis for the Commission's decision. The district court thus denied the motion to vacate.

4

Review of a denial of a Fed.R.Civ.P. 60(b) is limited to determining whether the district court abused its discretion; the merits of the underlying case are not subject to review. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 263 n. 7 (1978); Windsor v. United States Dep't of Justice, 740 F.2d 6, 7 (6th Cir.1984) (per curiam).

5

Upon review, we conclude that the district court did not abuse its discretion in denying the petitioner's request to vacate its judgment under Fed.R.Civ.P. 60(b). Accordingly, its judgment is hereby affirmed for the reasons stated by the district court in its order filed August 28, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.