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Hakim Ali-Akbar, Aka Frederick Jones v. Greg Brackett

March 26, 2013

HAKIM ALI-AKBAR, AKA FREDERICK JONES, PETITIONER,
v.
GREG BRACKETT, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel. On February 6, 2013, this action was dismissed without prejudice. (Dkt. No. 13.) The petition was dismissed because the petition did not allege grounds that would entitle petitioner to habeas corpus relief. (Id.)

On February 22, 2013, petitioner filed a motion to vacate the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (Dkt. No. 15.) Petitioner contends that the court was required to hold an evidentiary hearing, and that the court misrepresented the facts. (Dkt. No. 15 at 2.) Petitioner seeks "a proper and fair evidentiary review." (Id. at 7.)

Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. 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.

Fed. R. Civ. P. 60(b).

First, petitioner's reliance on Dillard v. Roe, 244 F.3d 758 (9th Cir.) (challenging felony conviction for inflicting corporal injury upon a cohabitant), amended on denial of rehearing (May 17, 2001); Sumner v. Mata, 449 U.S. 539, 551 (1981) (challenging first degree murder conviction); Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995) (challenging conviction for murder and burglary), is unavailing. While the appellate court in Duckett did address a claim of judicial bias, the claim arose during Duckett's criminal trial, and his habeas petition challenged the fact of his conviction. Petitioner's reliance on these authorities is inapposite because petitioner's habeas petition did not challenge the fact of his conviction, or the duration of his confinement. Rather, petitioner challenged a state court order deeming petitioner to be a vexatious litigant, dismissing petitioner's case, and denying petitioner permission to appeal. As the undersigned previously explained, habeas relief is only available for challenges to the fact or duration of a criminal conviction. (Dkt. No. 10 at 2.)

Second, under these circumstances, an evidentiary hearing is not required. The decision to grant an evidentiary hearing is generally a matter left to the sound discretion of the district courts. 28 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007). To obtain an evidentiary hearing in federal court under the AEDPA, a petitioner must allege a colorable claim by alleging disputed facts which, if proved, would entitle him to relief. Schriro v. Landrigan, 550 U.S. at 474. An evidentiary hearing may be granted with respect to a claim adjudicated on the merits in state court where the petitioner satisfies § 2254(d)(1), or where § ...


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