*1 pistol?” caliber (emphasis supplied). R. 894 Supreme

What Court has said about

Agnello States, v. United entirely L.Ed. 145

point prosecution’s efforts in the

instant case:

There, Government, having

failed in its efforts to introduce the taint- chief,

ed evidence in its case in tried to

smuggle it in on cross-examination

asking question, the accused the broad

“Did you ever see narcotics before?”

Walder v. United 98 L.Ed. Al-

though this is a closer than Agnello, case that,

believe Agnello, as in the cross-exami-

nation here had “too tenuous a connection

with any subject opened upon direct exami-

nation to impeachment by tainted Havens,

evidence.”

S.Ct. at 1915. a§ I conclude, however, did district here, that the error although signifi-

cant, may be deemed harmless. There was

other compelling untainted evidence of (cid:127)- Doss’ guilt. PARISIE, Stephan

John

Petitioner-Appellant, GREER, Warden,

J. W. Menard Correc- Center, Respondent-Appellee.

tional

No. 80-1940.

June

Rehearing En Banc Granted 5,1982. *2 SWYGERT, Judge, peated Before requests Senior Circuit inordinate number of for EAST, Judge, Senior continuances in this it can hardly Judge.* District plead prejudicial delay. Third, all these events involved a se ORDER litigant working possible under the worst presented The question by the State’s conditions. Parisie stated in his affidavit petition involves the filing of accompanying his motion for an extension Although a Rule 59 motion. Parisie charac- of time get that he could not access to the one, terized his motion as a Rule 60 he was library prison law and could not have acting pro se. The substance of the motion papers his typed and mailed to meet the was a Rule 59 one—a motion to reconsider. ten-day requirement. Access to these Moreover, Judge Foreman treated it as a things easy prison, is never but condi Rule 59 motion and the object State did not tions were exacerbated because of the Holi to this treatment. day Season. Parisie’s failure was a There is no doubt that the motion to involving technical one timeliness. Courts

reconsider was not filed. Nonethe- recognized special often the latitude less, waiving several justify considerations given pro litigants. se Browder v. the technical-time requirement. Ill. Dept. First, Judge we must consider Foreman’s 54 L.Ed.2d does not hold initial failure to treat Parisie’s motion for otherwise. In Browder it was the State an extension of time. It perhaps is true timely, that failed to file and on those facts that the Rules do not allow an extension of the Supreme strictly enforced the time to file Judge a Rule 59 motion. But if requirement. Here we have a Foreman had ruled quickly to that effect litigant who failed timely. to file and had informed Parisie that the time to This factual difference is crucial. move for passed, reconsideration had then There are two reasons for the time limi- Parisie could have filed a tation to file a Rule 59 motion. First it this court on the judge merits. Instead the judge alerts the district grounds motion, sat on the allowed Parisie to file his a new trial or a reconsideration without too reconsider, motion to and considered the delay much following judg- the verdict or motion on the merits: The State did not Second, ment. it appel- starts the object to this treatment. Given the late if such is undertaken. How- work, nature of Parisie’s it quite was rea- ever, ten-day the limitation not inflexible. sonable for Parisie to that conclude failure Wright Professor has written: to rule on his motion for an extension of time still left him in the trial court. trial, A motion for a new stating therefore, grounds must be within made

Second, when Judge Foreman treated days entry the Parisie’s motion on the merits the State Though tendency apply the has been to objected. never The State should have this strictly, and to hold that neither raised this Judge issue before Foreman waiver estoppel acquiescence by nor nor permit him to confront it. Even when the opposing party the can the court finally objected appeal, State it failed to motion, untimely to act on an a doctrine prejudice. show every single memoran- (to developed allowing dum on relief where a panel, this issue the motion itself, party and in its has been misled action rehearing), time, court purporting enlarge State failed to show how prejudiced though power even lacks Moreover, State. given the State’s re- make such an order. * East, sitting by designation. The Honorable William G. Senior United Oregon, States for the District of EAST, Courts,

Wright, Judge, specially Law of Federal Senior District § See also 9 Moore’s Federal Practice 204.- concurring: § proposition Cases 12[2]. specially concur in the conclusion of the extenuating may pro- juris- that this court held vide ten-day relief from the limitation for diction. of a Rule 59 motion include *3 The reaches that conclusion INS, Thompson v. 375 84 59, Fed.R.Civ.P., through the route of Rule (1964); S.Ct. 11 L.Ed.2d 404 disagree and the case law. I do not on that Foerder, 980, Eady (7th 981 Cir. equal- score. I do believe that an 1967); Fairway Corp. Corp., Center UIP jur- ly rational alternate route to 1092, (8th 1974). Cir. 1093-94 through isdiction is available ample Here extenuating circumstances ex- Fed.R.Civ.P., and the case law. ist; it would be inequitable unjust and to The District without an oral hear- allow a miscarriage of because of a ing solely upon pro proceeding and by litigant. a summary judgment in papers, entered a Judge, concurring: 18, favor of Greer on December 1979. On Although I part, dissented in on the mer- February Parisie filed his its, 1011, from the opinion, 671 F.2d I memorandum, motion with concur here in the denial of state’s 18, reconsideration of the December 1979 petition for rehearing suggestion with The recog- District Court rehearing en jurisdictional grounds. banc on nized that “liberal construction is to be ac- Moreover, I agree with East corded material drawn se” and enter- both the majority disposition and his own tained the merits of the motion for recon- suggested disposition rehearing peti- Phend, 1197, sideration. 417 Wilson v. F.2d present acceptable grounds to sustain (7th 1969). Cir. also Haines v. See appellate jurisdiction. The denial of the Kerner, 594, S.Ct. rehearing petition is, believe, I buttressed in Harris, (1972); Bryant part by the state’s failure to raise its un- 1972). F.2d 365 Thereupon objections post-trial to Parisie’s District Court considered the motion as hav- motions before the district court. It would ing been made under both Rule 59 and Rule helpful to have in the record the think- ultimately the merits of the denied ing of the district court rather than to be 8,May motion for reconsideration on forced to infer merely sequence from the of Parisie a timely appeal filed notice of events how the district court characterized that denial order. Parisie’s motions jurisdictional and what Mr. a Justice Blackmun entered concur conclusions it drew from its own character- ring opinion in Browder v. izations. Denial of is further Dept. of at supported by the prior panel decision of a 54 L.Ed.2d 521. I find (Chief Judge Cummings and the following page sentence at the close of Judge Pell) denying in argu- before oral page challenging 566 more ment the state’s motion to dismiss for the disarming: than very reasons now urged [respondent’s Under these circumstances rehearing. The state chose to seek rehear- 60(b)], disavowal of reliance on Rule I jurisdictional grounds rather than on obligation part see no on this Court’s the merits. I do not accept the state’s attempt respondent’s to rescue case on a jurisdictional argument, argument which 60(b) basis. rejected been previously by two differ- ent panels of case, this court. Admittedly we are disposition its of this not barred any repose doctrine of from this court held that the District com- Court examining any point jurisdic- failing our own in its mitted reversible error sum- tion, but a practical history as matter the of mary judgment adjudicate consider decisions here weighs significantly against decisive constitutional issue the state’s argument. deprived Parisie was of his “[w]hether right present requirement Amendment a de- cumvent the Sixth notice Brewer, fense when the trial court refused to allow appeal. See Fox v. 620 F.2d 177 testify.” Indemnity three crucial defense witnesses to Oliver v. Home 671 F.2d 1011. 470 F.2d 329 Parisie can in no sense be said have made Here the se defendant acted as “free, calculated, deliberate” choice not to imprison- as his circumstances of appeal summary judgment. See ment would to alert the attention of Ackermann v. the District consid- lack of its 95 L.Ed. 207 adjudication eration and of the decisive is- sue of whether he had accorded consti- been conclude that District Court abused tutional process throughout considering due his state its discretion in not adjudi- court clung every cating criminal trial. He Parisie’s renewed constitutional due procedure open to him. claim a reconsideration of *4 delinquent summary judgment.

I would elect to consider the cause here as a Ordinarily, District Court’s the cause should remanded 60(b)(6) denial of the merits of a Rule mo- to the District Court for such a reconsidera- tion for reconsideration of the December light pertinent tion in authorities 1979 summary judgment. published cited in the court’s decision here- However, in. since we have the same rec- Klapprott v. United ord before us that would be before the L.Ed. the parties fully held that Rule addressed us on the issue the brief- except par for all reasons the five ings, judicial we expedi- should deem that ticularly specified 60(b)(l)-(5), in Rule ency and the furtherance of demand “vests power adequate in courts to enable that we meet the issue and make a disposi- them judgments to vacate whenever such light pertinent now the au- appropriate accomplish justice.” action is thorities cited in the decision. 60(b)(6) The denial of a Rule motion is a join majority’s denial of Greer’s meaning order within the of Federal rehearing. Appellate 4(a), Rules of Procedure and is appealable. Director, thus v. Browder Ill.

Dept. n.7, at 263 560 n.7. 60(b)(6) motion neither affects the fi

nality original judgment nor tolls the time limit for taking appeal from that COMPANY, The PATE an Illinois Id.; Ellingsworth Chrysler, corporation, Plaintiff-Appellee, 665 F.2d Needham Cross-Appellant, Laboratories, Inc., v. White 1981), denied, 397 n.4 cert. CORPORATION, corporation, RPS Raymond Resech, individually, W. De- Thus, 60(b)(6) a Rule motion does fendants-Appellants, Cross-Appellees. not bring up underlying judgment- 81-1959, appellate review, Nos. ruling and a such a 82-1127. motion is reviewable for an abuse of Dept. discretion. Browder v. Corrections; Ellingsworth Chrysler; Argued May 12, 1982. International, Sager Ben Inc. v. Chemicals July 23, Decided 1982. Targosz E. & Rehearing Rehearing En Banc Denied grant

A of relief under here prevent- will not violate the policy 60(b)(6) being used to cir-