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Hung Duong Nguon v. Tim Virga

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 8, 2011

HUNG DUONG NGUON, PETITIONER,
v.
TIM VIRGA, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. The petition was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

On January 12, 2011, the court dismissed this action because petitioner's claim of not receiving adequate medical care was not appropriate for a § 2254 action. Dckt. No. 5. The Clerk of the Court duly entered judgment. Dckt. No. 6. Petitioner now seeks relief from judgment. Pursuant to Fed. R. Civ. P. 60(b):

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

See also Rule 12, Rules Governing § 2254 Proceedings. Petitioner does not demonstrate he is entitled to relief from judgment.

Accordingly, petitioner's February 22, 2011 motion is denied.

20110308

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