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Melvin Ray Brummett, Jr v. Ken Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 20, 2013

MELVIN RAY BRUMMETT, JR.,
PETITIONER,
v.
KEN CLARK, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Lonny R. Suko United States District Judge

ORDER DENYING ) PETITIONER'S RULE 60(b) MOTION

Petitioner has filed a "Motion For Relief From Judgment Pursuant to Federal Rule of Civil Procedure, Rule 60(b)," ECF No. 56, filed December 20, 2012 but not properly noted for hearing. Although not abundantly clear, it appears Petitioner seeks to vacate this Court's order denying his 28 U.S.C. §2254 petition entered on September 28, 2009 (ECF No. 45). Petitioner states he is attacking the judgment on procedural grounds as opposed to the merits. Petitioner additionally argues that the district court wrongly denied him a certificate of appealability and evidentiary hearing. Petitioner also argues that the Court should have granted him an evidentiary hearing on his ineffective assistance of counsel claim. Finally, in conclusory fashion, Petitioner asserts that he showed the state court's denial was wrong by "clear and convincing evidence." ECF No. 56 at 14.

This Court has carefully reviewed the record and concludes Petitioner has not raised any new arguments nor is this a situation of newly discovered evidence. Petitioner argued ineffective assistance of counsel grounds at great lengths in his §2254 petition, which arguments the Court thoroughly addressed in the Order Denying Defendant's §2254 Petition (ECF No. 45). Petitioner fails to convincingly set forth the "procedural" grounds upon which he is attacking the judgment. Instead, Petitioner rehashes past arguments on the merits. Petitioner also fails to explain what state court "denial" was wrong based on "clear and convincing" evidence. The Court finds that the subject judgment is not void for any of the hollow reasons enumerated by Petitioner. Finally, Petitioner's instant motion, brought nearly 4 years after the challenged order was entered and 2 years after the request for certificate of appealability was denied by the Ninth Circuit Court of Appeals, has not been raised within a reasonable time as required by Rule 60(b). Accordingly,

Petitioner's "Motion For Relief From Judgment Pursuant to Federal Rule of Civil Procedure, Rule 60(b)," ECF No. 56, is DENIED.

IT IS SO ORDERED. The District Executive shall forward a copy of this order to counsel of record and to the Petitioner.

Lonny R. Suko

20130320

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