Abd'al-Azeez Jalal Hakim v. Commonwealth of Kentucky ( 2022 )

RENDERED: JANUARY 21, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0733-MR
ABD’AL-AZEEZ JALAL HAKIM APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
v. HONORABLE DAVID A. BARBER, JUDGE
ACTION NO. 12-CR-00185
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
MAZE, JUDGE: Abd’al-Azeez Jalal Hakim, a/k/a Lee Martin Story (“Hakim”)
appeals from an order of the Montgomery Circuit Court denying his motion for
relief from his conviction or sentence pursuant to CR1 60.02. We agree with the
1
Kentucky Rules of Civil Procedure.
trial court that Hakim’s motion is successive and that he failed to assert grounds
for relief under the rule. Hence, we affirm.
For purposes of this appeal, the following facts are relevant. Hakim
was arrested on June 21, 2012, on unrelated charges. On August 17, 2012, while
he was incarcerated in the Montgomery County Regional Jail, he stabbed Gary
Muncie, a fellow inmate, in the neck with a pencil. Based on this action, he was
subsequently indicted and convicted of first-degree assault and being a persistent
felony offender in the first degree. The trial court sentenced Hakim in conformity
with the jury’s recommended sentence of thirty years’ imprisonment. On direct
appeal, the Kentucky Supreme Court affirmed his conviction and sentence. Hakim
v. Commonwealth, No. 2013-SC-000376-MR, 2014 WL 2809878 (Ky. Jun. 19,
2014).
Hakim then filed a motion to vacate the judgment under RCr2 11.42,
claiming that his trial counsel had been ineffective. Following a hearing, the trial
court granted the motion and ordered a new trial. However, this Court reversed,
finding that the trial court misapplied the test for ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Finding no showing of prejudicial error by counsel, this Court
2
Kentucky Rules of Criminal Procedure.
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reinstated Hakim’s conviction. Commonwealth v. Hakim, No. 2016-CA-001489-
MR, 2017 WL 5624624 (Ky. App. Nov. 22, 2017). The Kentucky Supreme Court
denied Hakim’s motion for discretionary review.
On May 18, 2020, Hakim filed a motion for relief from his sentence
under CR 60.02, claiming that he should be released because further incarceration
could subject him to the COVID-19 virus. The trial court denied the motion.
Hakim filed a motion to dismiss his appeal in that matter, which this Court granted
on May 10, 2021.
On May 24, 2021, Hakim filed his present motion to vacate the
judgment under CR 60.02. He claimed that Muncie’s surgeon had given false
testimony and that the Commonwealth failed to provide exculpatory evidence prior
to trial. The trial court denied the motion, and this appeal followed.
Hakim focuses on his claim that the Commonwealth failed to produce
a color photograph showing the injury to Muncie’s neck. He asserts that the
photograph was exculpatory because it would have cast doubt on the
Commonwealth’s evidence that the stabbing caused serious physical injury. He
also asserts that the photograph would show that the surgeon lied about the extent
of Muncie’s injury. The trial court concluded that these claims fell outside of the
scope of relief available under CR 60.02. The Commonwealth also argues that the
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motion was barred as successive and that Hakim failed to show why he could not
have raised this issue on appeal or in his prior motions.
It is well-established that CR 60.02 is for relief that is not available by
direct appeal and not available collaterally under RCr 11.42. Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). CR 60.02 is not intended to
afford individuals an additional opportunity to re-litigate issues that have already
been presented in an earlier direct appeal or collateral attack or present new issues
that could have been raised in those proceedings. McQueen v. Commonwealth,
948 S.W.2d 415, 416 (Ky. 1997); RCr 11.42(3). And CR 60.02 should only be
used to provide relief when the movant demonstrates why he or she is entitled to
the special, extraordinary relief provided by the rule. Gross, 648 S.W.2d at 856.
On appeal, the trial court’s denial of a CR 60.02 motion will not be overturned
absent an abuse of discretion. Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011).
We will not disturb the trial court’s exercise of discretion absent a determination
that it was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
First, the Commonwealth argues Hakim’s motion is barred because
CR 60.02 generally does not permit successive post-judgment motions. Foley v.
Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). Hakim maintains that he
exercised due diligence in obtaining a copy of the photograph but the
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Commonwealth only provided him with a black-and-white copy. But as the
Commonwealth notes, the original photograph was introduced at trial.3
Under CR 60.02, claims for relief based upon newly discovered
evidence and perjury or falsified evidence must be brought within one year after
the judgment. Claims based upon “any other reason of an extraordinary nature
justifying relief” must be brought within a reasonable time. Hakim failed to
present any significant reason for not raising this issue until more than eight years
after his judgment of conviction was entered. Moreover, other than his
unsupported allegations, Hakim fails to show how the photograph would be
exculpatory or establish perjury on the part of the surgeon. Therefore, we agree
with the trial court that Hakim failed to establish any grounds for relief under CR
60.02.
Accordingly, we affirm the order of the Montgomery Circuit Court
denying Hakim’s CR 60.02 motion.
ALL CONCUR.
3
The color photograph was introduced at trial as Commonwealth’s Exhibit # 5. The photograph
is included in the sealed exhibit envelope with the Record on Appeal.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Abd’Al-Azeez Jalal Hakim, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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